Medill Innocence Project Fights Subpoenas of Student Records

Professor David Protess and his students in the Medill School of Journalism use their journalistic skills to prove that convicted criminals are innocent, often winning their release from prison (at left, Anthony Porter is shown hugging Protess after his release from prison in 1999). But now, Protess and his class must use some of those same skills to defend themselves.

Illinois state prosecutors are demanding that the professor and his students turn over their records in a case involving one such inmate, but Protess refuses to comply. "I would rather go to jail," he told Politics Daily.

The story begins in 1978 Harvey, Ill., when Anthony McKinney was 18. A police officer saw McKinney running down the street close to where a security guard had just been killed. McKinney, who had no prior history of violence, said he was fleeing gang members. Police arrested him after another teenager said he saw McKinney point a shotgun at the security guard. McKinney signed a police-typed confession that he later recanted at his trial, claiming police coercion. Officers testified that the confession was legitimate, the eyewitness testified against him, and McKinney was convicted and sentenced to life in prison.

McKinney has now been there 31 years. When Protess and his students took on his case, they claim they uncovered evidence that proves his innocence -- including information about his coerced confession, the coercion of eyewitnesses, and potentially incriminating accounts about other suspects in the case.

"The evidence for McKinney's innocence is overwhelming," Protess said.

The Innocence Project, which has cleared 11 wrongly convicted men since Protess founded it at Northwestern University in 1999 as a class for undergraduates, submitted its evidence in the McKinney case and asked a judge for a new trial. And that's when the project ran into trouble. From the Inncocence Project Web site:

The state subsequently conceded that the evidence in the petition deserved a hearing to determine whether Anthony [McKinney's] 1978 conviction should be vacated or affirmed. However, prosecutors contended that much of the evidence developed by the Medill Innocence Project . . . was not "newly discovered" and thus should be barred from the hearing. (Under Illinois law, evidence is inadmissible at a post-conviction hearing if it were known or reasonably could have been known by the defense at the time of the original trial.)

Then, state prosecutors began playing hard ball. They supoenaed the Innocence Project students' grades, grading criteria, class syllabi, expense reports and e-mails. According to Sally Daly, a spokeswoman for the Cook County Court System, there may be evidence the students bribed, hounded and flirted with witnesses to obtain information from them, motivated, in part, to obtain a better grade in Protess' class.

In one instance, Daly said, there's indication students paid a cab driver a $60 fare, with the understanding the driver would keep $20 and give $40 to one of the students' witnesses.

"When we re-interviewed the witnesses the Innocence Project had interviewed, they recanted their information," Daly said. "They were saying something different than what they had told Protess and his students. And then they began to explain to us the tactics students were using to get information."

"When these things came forward," Daly added, "We felt the need to obtain additional information. This isn't anything that would not be done in any other criminal investigation."

Protess refutes the split cab fare claim, saying that the Innocence Project has a receipt that confirms that the cab driver was given only $50.

"We have been subpoenaed four times in the past, and each time they were appropriate subpoenas for information that the state was entitled to because they were subpoenaing evidence, not motivation," Protess said. "The subpoena is different here in that they are subpoenaing supposed evidence of our motivation, which is irrelevant."

At a hearing on Monday regarding the subpoenas for students' e-mails, expense reports and related material in the case, Innocence Project lawyers argued that Protess and the students are protected by the Illinois Shield Law, which states that no court can compel a reporter to divulge his or her source.

Over a dozen news organizations, including The New York Times, The Washington Post and the Associated Press, have submitted friend-of-the-court briefs supporting Protess and his students in their wish to resist the subpoenas. Judge Diane Cannon set Feb. 10 as the date for the next status call in the case.

John Lavine, dean of Northwestern's Medill School of Journalism, said the subpoenas are detracting from the mandate of the project, which is to get innocent people off of death row. Five of the 11 inmates that the Innocence Project has cleared were on death row.

"Talking about our faculty or our students is not the point," Lavine said. "The point is that Anthony McKinney has been in jail for 31 years, and it appears there are facts out there that show he didn't commit the crime and somebody else did. They should be looking at the crime and getting him out of jail. The man has been in jail for 31 years and he doesn't deserve to be there."

The state attorney's office has been involved in the McKinney case for over two years, and claims that all of the documents are necessary to investigate any "personal bias in the case," said Daly. "This is about the truth, and its about the whole truth, not just the version of the facts Professor Protess has chosen to present to us," she said. "As prosecutors, we have a legal duty to get all of the information that has been collected and to evaluate it."

If Northwestern University ends up having to turn over the documents, said advocates of the Innocence Project in the Times article, that could send a discouraging message to students, creating a disincentive for them to participate in such endeavors.

Sarah Davidson, a Medill freshman, said she is worried what effects a prosecution victory could have on Medill's reputation.

"First of all, I think that what the prosecution is doing really detracts from the most important part of what Protess and the Innocence Project is doing," Davidson said. "But not only that, I'm just worried that if NU ends up having to turn over the documents, then it will create a feeling that we actually did do something wrong, even if we didn't."

Lavine, however, is optimistic NU will prevail against the subpoenas.

"You never can guess what's gonna happen in a courtroom. But if someone said to me, 'Are you going to turn over those materials?' my answer is 'No.' I'm not going to turn them over. There appears to be enough evidence that [McKinney] should not be in prison, and that is what we should be focusing on."

Should Protess and NU refuse to comply with the subpoena, if a court does issue it, Protess could risk being fined or even jailed.

"Professor Protess has chosen to make this a public battle: us against the journalists, and that couldn't be further from the truth," said Daly.

But Protess is ready to do anything to keep the documents in the hands of Medill and the Innocence Project.

"I would rather go to jail honoring the long tradition of journalists who have refused to turn over unpublished information than comply with an illegal subpoena," he said. "That's intolerable."