Prosecutors Investigate Innocence Project Students

Innocence Project Medill LogoA rather bizarre case in Illinois — even by the standards of that state.

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.

But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves. The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas.

Lawyers in the Cook County state’s attorney’s office say that in their quest for justice in the old case, they need every pertinent piece of information about the students’ three-year investigation into Anthony McKinney, who was convicted of fatally shooting a security guard in 1978. Mr. McKinney’s conviction is being reviewed by a judge. Among the issues the prosecutors need to understand better, a spokeswoman said, is whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.

[…]

A spokeswoman for Anita Alvarez, the Cook County state’s attorney, who was elected last fall, said the prosecutors were simply trying to get to the bottom of the McKinney case. “At the end of the day, all we’re seeking is the same thing these students are: justice and truth,” said Sally Daly, the spokeswoman. She said the prosecutors wished to see all statements the students received from witnesses, whether they supported or contradicted the notion of Mr. McKinney’s innocence. “We’re not trying to delve into areas of privacy or grades,” Ms. Daly said. “Our position is that they’ve engaged in an investigative process, and without any hostility, we’re seeking to get all of the information they’ve developed, just as detectives and investigators turn over.”

Well, no. Without probable cause to believe criminal action on part of the students, the state has no right to any of this material.  And why would it matter if the students thought they would get better grades for getting provocative statements?  Surely, people aren’t going to confess to crimes or commit otherwise commit perjury in order to help out some rich college students they don’t know.

On this matter, there seems to be wide consensus.

American University conlaw prof Darren Lenard Hutchinson:

The subpoena raises several red flags. First, the information the prosecutors seek is completely unrelated to the question of McKinney’s guilt or innocence. Second, student grades are normally protected from disclosure by federal law. Third, the program is operated by the school of journalism and likely qualifies for protection by state journalism shield laws and the First Amendment. Fourth, the professor’s course materials are possibly protected from disclosure by the concept of academic freedom — which the Supreme Court has construed as a value secured by the First Amendment.

[…]

Daly also likens the subpoena to the routine disclosure of information by “detectives.” Police detectives, however, work for the government and assist the prosecution. They are colleagues. Although private detectives do not work for the government, they have an unambiguous financial stake in the outcome of their investigation. The students, by contrast, are private citizens and journalists. The Medill project exists to monitor and improve the criminal justice system — not to service the prosecutor’s office or inmates.

[…]

Illinois prosecutors are blatantly using the strong arm of the state to harass Medill journalism students. The prosecutors’ behavior evinces a deep contempt for the law, which makes the students’ efforts to uncover wrongful convictions even more compelling.

Emptywheel’s bmaz:

The Cook County prosecutors cite no evidence to support a credible belief there is anything nefarious behind the student journalists’ work. The students work, conclusions and supporting materials are all part of their project report. The prosecutors already have access to all of said pertinent material, as well they should. But what they now want are “grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students”. Here is the actual subpoena. This is information that has nothing whatsoever to do with the students work on the project. “Fishing expedition” would be far too kind of a term.

The only visible purpose of the play by the prosecutors here is intimidation and instillation of a deep chill in the work of the Medill Innocence Project.

Retired federal judge H. Lee Sarokin:

I am always offended and annoyed with the labeling of some recent conduct or person with Nazism or Hitler or drawing analogies with the Holocaust and thereby belittling those horrific events in our history with some current less appalling and even minor occurrences. But I truly believe that the attempt of prosecutors to subpoena “the grades, grading criteria, class syllabus, expense reports and e-mail messages of their journalism students themselves” at Northwestern University warrants and deserves the Gestapo label.

It is a flagrant attempt to intimidate the Medill Innocence Project and other similar projects which have been so successful in overturning wrongful convictions. The alleged justification is that the prosecutors want to determine “whether students believed that they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.” So I take it that would mean that every time a detective obtained incriminating evidence, his entire background could be examined in order to determine his motives when interviewing a witness; whether he had received or expected a raise or a promotion; and if so whether he needed money; how much his debt was; what he was paying for rent and alimony, etc. In other words, the scope of the investigation would be extended to the motives of the investigator rather than the witness being investigated and interrogated.

Wisconsin lawprof Ann Althouse asks “what information about students and classes should it be able to look at?”  She does not attempt to answer the question.  Her commentators give it a shot.

Tennessee lawprof Glenn Reynolds, aka InstaPundit, snarks, “Hey, it’s the Chicago Way. But the parallel is pretty striking — if you don’t like what they’re reporting, why, then, they’re not really journalists!

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. PD Shaw says:

    That’ll show those young punks.

    I worked for an appellate death penalty defenders while in school. If the issue here is the incentives such workers have, then the answer is a no-brainer. These people want to see the convicted released; it would be good on a resume, good for cocktail talk and might even be good for a roll in the sack. One could point out that having two sides with interest in the outcome underlies the adversarial process.

    I will say though that e-mail messages btw/ the journalism student and witnesses seem entirely legit to me. If these witnesses are saying X today, we should have access to all of the communications they’ve made or received to evaluate their statements.

  2. JKB says:

    Only he who has pure motives may uncover the truth. That’s the way it is in Harry Potter thus how it should be in Chicago.

    Seems to me a more productive discovery would be to examine the motives of prosecutors. To find out whether they expected promotions or re-election from the prosecution. The evidence an investigator finds must stand independent of the investigator but prosecutors are known to pursue individuals for their own career goals, even to the point of hiding exculpatory evidence. I mean, other prosecutors not Chicago, which is known as a paragon of virtue and truth.

  3. Furhead says:

    One can see right through the prosecutors’ frustrations here. Somebody is mulling over every single step they’ve taken in the past, and now they want to repay the kindness. I would say it’s understandable but not acceptable.

    PD’s point that communication between the students and witnesses should be fair game is an interesting one. There’s no lawyer/client confidentiality, but there’s the ongoing battle of whether journalists have to reveal their sources (although their source is known in this case, and they are only *students* studying to be journalists). I’m not convinced yet. Sure it might be better for seeking the truth, but as PD said himself, justice in the U.S. is an adversarial process, not necessarily one that purely seeks the truth.

  4. PD Shaw says:

    James, you’re probably wrong about this:

    Without probable cause to believe criminal action on part of the students, the state has no right to any of this material.

    There was a criminal lawsuit thirty-odd years ago where a man was convicted of murder on evidence that was beyond a reasonable doubt.

    Now, somebody has brought a legal action to turnover the conviction. The defendant has the burden to present evidence, and general rules of discovery would allow the responding party to investigate the evidence being presented (or being hidden).

    It’s essentially the mirror image of the prosecution’s obligation to turnover it’s evidence to the defense team. And as JKB notes, the prosecution would howl if the defense team was given to explore the prosecutor’s motivations.

  5. PD Shaw says:

    Furhead, I am largely assuming that the Innocence Project is an investigatory arm of the defense team, but maybe I’m wrong. It certainly doesn’t seem like journalism to me, as opposed to issue advocacy.

  6. Furhead says:

    Good question. My memory from reading a previous story about an Innocence Project (local to me in Michigan, not 100% sure if they’re all associated) is that it is journalists who look for the cases to work on, as opposed to being approached by the defense team.

    Just doing a quick search, I see a quote about a case worked on by the Ohio Innocence Project that indicates the same thing: “In 2007 and 2008, the Ohio Innocence Project worked closely with reporters at the Columbus Dispatch to evaluate cases of Ohio defendants who claimed to be wrongfully convicted and had been denied access to DNA testing in the past.”

    But the question might be, then, what if any contact or collaboration happens between the defense team and the journalists? I don’t know, either. You are right that it seems more like issue advocacy, anyway.

  7. Benedict says:

    Furhead wrote:

    they are only *students* studying to be journalists

    Apologies in advance if there was sarcasm intended there that the miracle of the internet could not convey. But if you wrote that sentence straight, then . . . WTF?? Was Ben Franklin not a journalist because he didn’t have a degree from a journalism school? Edward R. Murrow? Or how about my favorite, the creepy misogynist and bigot Keith Olbermann? There are a thousand reasons why Olbermann might not be a journalist, but the fact that his college degree is in animal husbandry is not one of them.

    In my opinion Reynolds has it exactly right. The White House has taken the position that journalists are who they say they are, and if they deem someone outside the bounds of a constitutionally-protected free press then all bets are off. The fact that the current outrage is happening in Chicago pings the irony meter at 11.

  8. PD Shaw says:

    Benedict, I think furhead is referring to the reporter’s privilege that exists in many states and news organizations wish to expand to more states and the federal courts. Illinois has such a law, but it appears that the students weren’t “engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis.” They were collecting information for three years in order to present their work at a hearing in which they hoped to free an innocent man.

    What if this were a class on forensic pathology?

  9. sam says:

    Sounds to me like a prosecutorial SLAPP suit.

  10. Steve Verdon says:

    I’d do what we’ve done (as a regulated utility) turn it right around on them. Request access to the e-mail accounts of everyone in the prosecutors office.

  11. An Interested Party says:

    Hey, it’s the Chicago Way. But the parallel is pretty striking — if you don’t like what they’re reporting, why, then, they’re not really journalists!

    In my opinion Reynolds has it exactly right. The White House has taken the position that journalists are who they say they are, and if they deem someone outside the bounds of a constitutionally-protected free press then all bets are off. The fact that the current outrage is happening in Chicago pings the irony meter at 11.

    It would be nice if such whining wasn’t based on false information

  12. Steve Verdon says:

    A spokeswoman for Anita Alvarez, the Cook County state’s attorney, who was elected last fall, said the prosecutors were simply trying to get to the bottom of the McKinney case.

    This is almost certainly a lie. It is extremely rare that a prosecutor would want to actually get to the truth.

    PD Shaw nailed it when discussing the reluctance to prosecute forensics experts.

    States don’t want to prosecute these guys because they don’t want the release of every convict whose case touches on such a felon.

    Prosecutors HATE this kind of stuff, so they fight it any way they can.

  13. tom p says:

    this smacks of slap.