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How F***** Up Is This?

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DAVID PROTESS
AP

Anthony McKinney and Armando Serrano have never met, but they have shared a tragic journey.

Both men are serving long prison terms for murder. Both were wrongfully convicted. And justice has eluded them both because Cook Co. prosecutors have turned their fight for freedom into a bizarre sideshow -- by subpoenaing the written work of college journalism students.

The students happened to be in my investigative reporting class, part of the Medill Innocence Project at Northwestern University. During their senior year, they investigated the claims of McKinney and Serrano and found them to be credible, documenting their reporting in notes, memos and emails.

You may have read about the McKinney subpoena, perhaps in the Huffington Post, where renowned federal judge H. Lee Sarokin has blogged about it. The good judge has not been kind to the county prosecutors, saying their tactics resembled the Gestapo's. He pointed out that the best evidence comes from the witnesses who stepped forward -- not from journalism students who reported what those witnesses told them.

Fighting the subpoena, the university's lawyers argued that the students' work product was shielded by the Illinois Reporter's Privilege Act. But prosecutors countered that the privilege was waived when some of the documents (the precise number is disputed) from interviews were shared with McKinney's lawyers.

On September 7, a Cook Co. judge agreed with the Cook Co. prosecutors, ordering more than 500 email messages surrendered to them. The judge concluded that the students had "worked at the direction of Anthony McKinney's attorneys" and "act[ed] as investigators in a criminal proceeding," thereby losing the legal protections afforded independent journalists.

Having supervised the students' reporting from beginning to end, I am compelled to ask: WTF??? With all due respect, the judge's ruling is contrary to hard facts and journalistic traditions.

For one thing, none of the 500 emails was sent to McKinney's lawyers. They were private communications between the students (and sometimes me) that included requests for references, breaking news about dead grandmothers and plans to meet for drinks. While the emails may satisfy prosecutors' personal curiosity, they have no bearing on the sole issue before the judge: Anthony McKinney's innocence or guilt.

Further, McKinney's lawyers did not decide who the students interviewed or what questions they asked. That's partly because McKinney did not even have a lawyer in the first two years of our reporting about his case. During that time, the students unearthed powerful evidence that challenged his conviction: recantations by the State's two eyewitnesses, sworn statements by an alibi witness and the videotaped admissions by the prime alternative suspect.

When lawyers at Northwestern's Center on Wrongful Convictions later took McKinney's case -- after his innocence had been established -- the journalism students listened to their ideas for tying up loose ends. But no one from the legal team participated in any subsequent interviews. And, we shared with both sides the documents from those interviews that had evidentiary value, while posting links to them in stories about the case on the Medill Innocence Project's Web site.

This isn't to say that my students and I hadn't come to believe in McKinney's cause by the time his lawyers arrived on the scene. But so what? There is a long and honored tradition of journalists taking stands in public controversies. Should the government have had the power to force Edward R. Murrow to surrender his notes on which he based his ferocious attack against Sen. Joseph McCarthy? How about Walter Cronkite's phone records with military sources that prompted him to proclaim the Vietnam War wrong-headed? Do the emails of today's editorial writers belong in the hands of law enforcement? The point is, crusading journalists -- including student-muckrakers -- deserve as much if not greater legal protection than mainstream reporters.

In light of the stakes, Northwestern was expected to announce in court this morning that it would appeal the judge's ruling. Instead, both sides agreed to a continuance.

For Anthony McKinney, delays are as much a part of life as uncelebrated holidays. Last week marked the beginning of his thirty-third year behind bars for a murder he did not commit.

Meanwhile, in the same prison where McKinney is incarcerated, Armando Serrano's quest for justice has been similarly sidetracked. Last month, without fanfare, the same Cook Co. prosecutors subpoenaed the notes, memos and emails of my Northwestern journalism students.

The evidence used to convict Serrano was even more pathetic than in the McKinney case. A witness testified that Serrano and two other men had confessed a murder to him while he was coming down from a heroin high. That's essentially it. No corroborative physical evidence, eyewitnesses or a confession to the authorities. Years later, the witness admitted to my students that he had lied on the stand in exchange for leniency in three armed robberies where he had been caught red-handed.

Now prosecutors want to scrutinize whatever documents they can get from the students and the university, even though the witness is alive and well (having cleaned up his act) and perfectly willing to testify. Once again, the tables have been turned, shifting the focus from an innocent man's plight to the reporting of college kids. The university is contemplating its next move.

So what is going on in Cook County? Theories abound. One is that the subpoenas are payback for the years of embarrassment inflicted by my journalism students and others who have exposed wrongful convictions. Another is that the tactic is, pure and simple, an effective way to distract attention from the prosecutions of innocents. A third is that it's all about money -- that by acknowledging their mistakes, already tapped out county coffers will be depleted by civil rights suits filed on behalf of the exonerated.

Regardless of the motivation, district attorneys and innocence projects across the country -- virtually all housed at universities -- are intently watching to see what happens next. If the subpoena virus takes hold here, it may spread uncontrolled.

This fear is justifiably shared by many. At stake is robust student-journalism, the autonomy of educational institutions and the liberty of Anthony McKinney, Armando Serrano and countless other wrongfully convicted prisoners.