Illinois lawyers seek students' grades, e-mails

CHICAGO -- A Northwestern University professor and journalism students who spent three years investigating the case of a man convicted in the 1978 killing of a security guard believe they have evidence that shows prosecutors put the wrong man behind bars. But in the quest to prove his innocence, they may have to defend themselves, too.

Cook County prosecutors have outraged the university and the journalism community by issuing subpoenas to professor David Protess seeking his students' grades, his syllabus and their private e-mails.

Prosecutors claim because the team was made up of students, they may have been under pressure to prove the case to get a good grade.

It's a first for Protess and his investigative reporting students, who have helped free 11 innocent men from prison, including death row, since 1996. Their work also is credited with prompting then-governor George Ryan to empty the state's death row in 2003, re-igniting a national debate on the death penalty.

"Why are we talking about our grades when we should be talking about whether there's an innocent man in prison?" said Evan Benn, a former Protess student mentioned in the state's subpoena. None of the students has been individually subpoenaed.

The prosecutor's office -- led by Anita Alvarez, who last year was elected Cook County state's attorney on a reputation for toughness -- said it's just being thorough, and wants to determine if students may have skewed their findings to get a good grade.

"It's been framed as a witch hunt or a fishing expedition, and it's not," said Sally Daly, spokeswoman for Alvarez. "We're engaging in a discovery process as we would in any criminal investigation."

Northwestern's lawyers have filed a motion to quash the subpoenas, and the judge may act on that Tuesday, when a hearing is set to hear arguments about whether there should be a new trial in the case. In the prosecution's response, they argue that Protess and his students aren't journalists and therefore aren't protected by reporters' privilege.

John Lavine, dean of Northwestern's Medill School of Journalism, considers that argument chilling.

"I don't think the prosecution in a criminal case ... or the defense ever ought to be able to say we decide who is a journalist," Lavine said. "They should never have that right."

Protess and his students spent three academic years investigating the case of Anthony McKinney, a suburban Chicago man serving a life sentence for killing a security guard in 1978. After interviewing witnesses and inspecting documents, they're convinced that McKinney had nothing to do with the murder.

Several witnesses told the students that they implicated McKinney in the murder only after they were beaten by police. Northwestern's legal clinic filed a petition seeking a new trial.

Prosecutors conceded a hearing was warranted but also sought all the students' notes, unpublished memos and reimbursements for their expenses. Daly insists the subpoenas are justified because of information that Alvarez's office has uncovered, but would not elaborate.

"It goes to the interest and the bias of the students," she said. "Did they receive a better grade in the class? Was there incentive for these students to develop additional information (about McKinney's innocence)?"

Protess and his students call that claim ridiculous -- especially since the prosecutor's office has never asked for such records before relating to investigations by the Medill Innocence Project, founded by Protess in 1999. Legal experts also said it's a rare request.

"It's extremely unusual to go after that kind of background material about the investigators because none of that is legally relevant to guilt or innocence," said Frank LoMonte, executive director of the Arlington, Va.-based Student Press Law Center. "It is worrisome that the response of the justice system is not to interview the witnesses, but to investigate the investigators."

Protess and his students have investigated nearly a dozen high-profile cases, several involving men on death row -- including the Ford Heights Four, who were exonerated by DNA evidence in a double murder, and Anthony Porter, who was exonerated roughly 48 hours before he was to be executed. In some of the cases, Protess' students found that police had bullied or coerced false confessions, and Illinois has paid out tens of millions of dollars to some of those who were wrongly convicted.

But in two cases they investigated in the last five years, students who found compelling evidence of prisoners' guilt still got As in his class, Protess said, so students had no reason to pad their findings in the McKinney case.

"Students are rewarded for advancing the cause of truth, regardless of where the facts lead them," he said.

The American Society of News Editors is asking Alvarez's office to reconsider the subpoenas, calling them "a wide-ranging, unfounded sweep for information" that violates the Illinois reporters' privilege statute. That statute protects reporters from having to reveal their sources and other information uncovered during newsgathering, including notes and e-mails.

Meanwhile, prosecutors have declined to release records of the police officers who were involved in McKinney's case, and have also rebuffed a Protess offer to release students' grades in exchange for prosecutors' performance reviews.

Benn, the former Protess student, said he thinks the prosecutors' motives are clear.

"The state's attorney's office is trying to save itself from the embarrassment of students finding another innocent man in prison," he said.