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Judge H. Lee Sarokin

Judge H. Lee Sarokin

Posted: November 4, 2010 12:31 AM

The Medill Innocence Project of Northwestern University spent 3 years investigating the conviction of Anthony McKinney who was convicted of murder 31 ago, and they concluded that he was innocent. The investigation resulted in an application for relief from the conviction. Prosecutors "subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students", (N.Y. Times 10/25/09) apparently based upon the astonishing assumption that somehow the motives of the students in gathering the information was relevant. Prosecutors justified their demand on the basis that it constituted nothing but the ordinary and compulsory exchange of information typical in criminal matters.

Nothing could be further from the truth. I know of no other instance in which evidence of investigative motive was subpoenaed in connection with any of the cases involving Innocence Projects anywhere in the country. Furthermore, the suggestion that this is routine in any criminal case is ludicrous. Can defense lawyers subpoena the financial records of a detective to ascertain whether or not his need for a promotion and a raise may have affected his investigation? Is he in financial trouble? Are his mortgage and credit cards in arrears? Is he supporting a mistress? Does he need money for his children's education? Has he applied for a promotion? Those inquiries are no more relevant or appropriate than demanding information regarding student grades.

For some reason the case seems to have focused on whether or not journalism students are actually "journalists" or "investigators"; whether as such they have a privilege: and whether or not that privilege has been waived. Talk about the cart before the horse. Whether or not they are "journalists" may be relevant to the facts that they have gathered, but their motives should be irrelevant irrespective of whether or not they are journalists. If a person, reporter or not, finds an individual who can prove that someone has been wrongfully convicted, the motives of the witness discovered may be relevant, but certainly not the person who found the witness. Private citizens may be motivated by fame, desire to write a book or help a relative, and, as I said in earlier posts, investigative journalists may be motivated by a by-line, a raise, a promotion, a Pulitzer Prize and students may be motivated by good grades---but so what? It is the evidence that they have found that should be tested, not their reasons for seeking it.

The Medill Innocence Project has led to the release of 11 inmates. The Illinois Governor cited their work in commuting the sentences of everyone on death row. Innocence Projects all over the country engage in this extraordinary work of freeing the innocent. I write about this once again, because this abuse of power by the prosecutor has caused dissension between the University and the Medill Project and undoubtedly has caused considerable expense. It is a direct attack against those who engage in this worthy activity, invades their privacy and serves to intimidate and discourage this important and courageous service to our system of justice. The motives that should be investigated in this matter are those of the Cook County prosecutor, not the students who have unearthed this information which may lead to a man's freedom.