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Innocence Project students denied shield

This article first appeared in the St. Louis Beacon, Sept. 12, 2011 - A judge in Chicago has ordered students to turn over more than 500 emails between Northwestern University journalism students and their former professor, David Protess, whose Innocence Project was instrumental in freeing five death row inmates in Chicago.

Cook County Circuit Judge Diane Cannon ruled last week that even though Illinois' shield law protects student journalists, Protess' students lost that protection because they were, in effect, acting as investigators for a defense lawyer rather than journalists. The shield law - the Illinois Reporter's Privilege Act - permits a journalist to protect confidential sources in most circumstances.

The controversy grew out of the latest case in which Protess and his students maintained that an innocent man had been convicted of murder. He is Anthony McKinney, who had been convicted of the 1978 murder of a security guard in Harvey, Ill. Protess' students found a witness who said McKinney was not present at the murder scene.

State's Attorney Anita Alvarez, instead of taking steps to free McKinney, challenged the reporting techniques employed by Protess and his students. She went to court in 2009 seeking 11 categories of information including "notes, memoranda, reports and summaries" prepared by the students. She also sought the students' grades, Protess' course syllabus and grading criteria.

The relationship between Protess and Northwestern's Medill School deteriorated during the court case. It was discovered that Protess' students had turned over memos to McKinney's defense lawyer, raising the possibility that they had waived the protection of the shield law. The school removed Protess from his investigative reporting course last winter, and Protess retired from the school a few months later. He has started his own Innocence Project.

Judge Cannon wrote that the students were "acting as investigators in a criminal proceeding. ... In this case, the Medill students worked at the direction of Anthony McKinney's attorneys, conducting interviews, gathering evidence. While a book may be written or an article published ... the information is subject to the rules of discovery."

Protess said in a statement that he was disappointed by Cannon's decision and disagreed with its statement of facts. "The facts show that my students investigated the McKinney case for two years with no involvement by defense lawyers. Every major reporting development, including the recantations of the State's witnesses and the confession of the alternative suspect, happened BEFORE McKinney even had a lawyer."

The Student Press Law Center, a Washington-based group that advocates for student journalists, said that the decision was unfortunate but should not be too detrimental. Executive Director Frank LoMonte said, "If the basis of the order is collaboration between journalists and the legal defense team, then it shouldn't have much effect on traditional journalists."

Gene Policinski, executive director of the First Amendment Center, was more critical. "Nothing in the First Amendment defines a 'free press' in terms of the employers or medium involved or what kind of news-gathering techniques are used. Consultation and the sharing of information, taking suggestions as to whom to interview, and even sharing results of those interviews may not be in every journalist's 'best practices' handbook. But the First Amendment doesn't exclude any of that -- and courts cannot 'fill in the blanks' without intruding into newsgathering, and thus ultimately affecting the journalistic outcome."

Advocacy journalism, in which the reporter advocates for a cause, should be as protected by the shield law, as objective, professional journalism, he said.

Ironically, earlier this summer Judge Cannon was the darling of First Amendment advocates because she ruled in a different case that student journalists at Loyola University's student newspaper are protected by the Illinois shield law.

Protess said in a statement that the real scandal is that McKinney is still in prison, 33 years after Protess says he was wrongfully convicted.

Full text of Protess statement:

I'm disappointed with the decision. The facts show that my students investigated the McKinney case for two years with no involvement by defense lawyers. Every major reporting development, including the recantations of the State's witnesses and the confession of the alternative suspect, happened before McKinney even had a lawyer. After that, every reporting decision was made within the Medill team. The real issue is that an innocent man has been locked up for 33 years. Hopefully, he now will get a hearing on the evidence of his innocence. The Medill Innocence Project Web site still has my by-lined story about the McKinney case in November 2008. The chronology shows that the law school did not become involved until after our investigation had been completed.

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