Back in 2009 the Medill Innocence Project, a program administered by Northwestern University’s highly regarded Medill Journalism School, looked like a victim of a vindictive and over-zealous prosecutor at the Illinois state’s attorney’s office Students enrolled from 2003-2006 in an undergraduate investigative reporting class at the journalism school that tied into the Innocence Project–which is aimed at overturning wrongful convictions–claimed to have uncovered evidence that could free Anthony McKinney, convicted of first-degree murder and serving a life sentence without parole in the shooting of a security guard near Chicago in 1978. Cook County State’s Attorney Anita Alvarez issued subpoenas demanding the students’ memos, notes and tapes from their off-the-record and unpublished interviews with witnesses to the 1978 events–and also their grades in the class and e-mail communications with their professor, veteran journalist David Protess, founder and director of the Innocence Project. Journalists across America expressed outrage at the subpoena, arguing that an Illinois “shield law” that protects reporters from having to divulge their sources and the confidential information they learn from them should apply even to students in a journalism class. A Washington Post editorial accused Alvarez of “overreach and pique.” Northwestern hired the prestigious Chicago law firm Sidley & Austin to fight the subpoena on behalf of the students and Protess.
Now, nearly two years later, the situation at Medill doesn’t look so journalistically black and white. Northwestern’s claim to the protection of the Illinois shield law is in shambles, Protess’s investigative reporting class has been turned over to another professor, and Protess himself has been accused by Northwestern in an official statement
of “repeatedly” providing “false and misleading information” and “knowingly” misrepresenting “the facts and the actions to the University, its attorneys and the dean of Medill on many documented occasions.” Sidley & Austin abruptly withdrew its representation of Protess. The problem was that the Illinois shield law protects reporters only if they do not share the information they have gathered with third parties outside their news-gathering organization. But according to Medill, Protess had in fact turned over his students’ notes and memos to lawyers representing McKinney–and then lied about it. Protess went so far, according to Medill’s statement, as to doctor a 2007 e-mail that had stated, “[W]e share everything with the legal team” (Protess had omitted those words from a copy of the e-mail that he turned over to Medill Dean John Lavine). Sidley & Austin had built its case in fighting the subpoena on the assertion that Protess and his students had not “waived” their claim to the protection of the Illinois shield law by sharing their documents outside Medill. Then, in a court hearing in connection with the subpoena, McKinney’s lawyers produced student memos that they said had been given them either by Protess himself or by the Innocence Project at his direction. It must have been an embarrassing courtroom moment for the Sidley firm.
An Attempt to Blame the J-School
Protess, who took a leave of absence from Medill and the Innocence Project after being relieved of his teaching duties, denies any intent to deceive Medill or its lawyers. He blames the journalism school for either intentionally or carelessly failing to note that he had been up-front from the very beginning about the Innocence Project's collaboration with McKinney's lawyers (McKinney is being represented by attorneys and law students connected with a legal clinic sponsored by Northwestern's law school). In a statement that appeared on a Medill-alumni listserv and obtained by National Review
associate editor Robert VerBruggen, Protess pointed out that in November 2008, six months before Alvarez issued her subpoena, he had written a story for the Innocence Project website declaring, "We shared the evidence in 2006 with lawyers and law students at the Center on Wrongful Convictions at our law school's Bluhm Legal Clinic." Any inaccurate statements he might have made, Protess wrote, were due to his faulty memory about events that had occurred years earlier and his preoccupation with his wife's battle against breast cancer. As for the redacted e-mail, Protess said that he had omitted the inculpatory clause because it was "inaccurate"–his students hadn't really shared everything they had gathered with McKinney's lawyers. Protess accused Northwestern of launching a "smear campaign" against him as a cover for its own sloppiness in handling the case.
What all of this makes clear—and it's what I wrote for Minding the Campus
back when the subpoena was still fresh in 2009–is that university journalism programs have no business operating "innocence projects." Innocence projects build on the ideological assumption that large numbers of innocent people languish in prisons because of the bad faith of prosecutors and police who have railroaded their convictions. Certainly mistakes can be made in the criminal-justice system—and Protess says that his students have helped win 11 reversals of convictions since he launched the Innocence Project at Medill in 1999. But securing the freeing of prisoners is essentially legal advocacy, not journalism, which is why nearly all innocence projects in other states are affiliated with law schools, state bar organizations, or public defender services. Not surprisingly, inexperienced undergraduate journalism students who enroll in classes affiliated with innocence projects can get confused about where their roles as budding investigative reporters begin and end. If the state's attorney's office is correct in the McKinney case, Protess's students engaged in such borderline conduct as paying sources (including $40 for crack cocaine for a witness who confessed to McKinney's crime), flirting with sources by female students, and being coached by a private detective who was also on the Medill payroll part time.
In his statement to the Medill-alumni listserv, Protess implied that the real victim of the subpoena imbroglio was Anthony McKinney. "An innocent man, Anthony has been locked up for three decades for a murder he did not commit," Protess wrote, accusing Medill of "compounding one injustice with another." But McKinney may have been ill-served in even more ways. In turning over their notes and memos to McKinney's legal team, Protess and the Medill Innocence Project likely waived their claim to the protection of Illinois shield law—which means that anything in those documents that unhelpful to McKinney's case will now be available for the state's attorney's office to use against McKinney. That was bad enough. But Protess and his students might have also thrown a money wrench into another legal protection against the divulging of information that could harm McKinney's case: the "attorney work product" doctrine. That legal principle offers protection to material developed by lawyers and their employees during the course of their representation of their clients. Protess claims, of course, that he and his students, as journalists, were working independently even though they turned over most of their findings to McKinney's lawyers. If I were in the state's attorney's office, I'd argue that Protess and his Innocence Project blew not only the shield law but the attorney work product doctrine as well. I feel sorry for Anthony McKinney.