Student journalists subpoenaed in death penalty case

From the Winter 2010 issue of The News Media & The Law, page 22.

Over the past decade, the work of Northwestern University journalism students has exonerated 11 wrongfully convicted defendants, appeared on the front page of The New York Times and The Washington Post, and been cited by the former governor of Illinois when he established a moratorium on executions in the state.

But now, as a legal battle unfolds in a county courtroom, it’s not just the criminal defendants who are receiving attention from Cook County prosecutors — it’s the students themselves.

“We’ve embarrassed them repeatedly over [the] years by having college students uncover evidence that they prosecuted the wrong guy,” said the project’s director David Protess. “It’s cost them millions of dollars in civil suits and public embarrassment. In my view, they’ve just decided to draw the line and it is basically a combination of payback … and paying it forward.”

In October, Cook County State’s Attorney Anita Alvarez subpoenaed the grades, interview notes, recordings and electronic correspondence of Medill Innocence Project students who spent three years gathering materials that could exonerate Anthony McKinney, a convicted murderer who has spent 31 years behind bars while maintaining his innocence. The students videotaped interviews of witnesses recanting their eyewitness testimony, uncovered information McKinney was not present at the scene of the murder and corroborated accounts of police brutality. They then handed the information over to the university’s legal clinic, which petitioned to overturn McKinney’s conviction or hold a new trial.

Though the university turned over a fraction of the students’ materials — including recordings of eye witness interviews — it is fighting the subpoena to turn over notes and materials relating to the class itself, including students’ grades. Some of the same newspapers that ran stories about the Medill Innocence Project’s work are now coming to its aid.

A coalition of media organizations — The New York Times, The Washington Post, the Chicago Tribune, the Chicago Sun-Times, Hearst Corp., Associated Press and CBS Broadcasting and The Reporters Committee for Freedom of the Press — jumped into action and filed a friend-of-the-court brief in the case. Student press advocates including Student Press Law Center and the Society of Professional Journalists also filed a brief.

The news organizations refute the prosecutorial argument that Medill students and their professor were not professional journalists and that student work is therefore not protected by an Illinois law that protects journalists from subpoenas. The brief argues that the language of the Illinois Reporter’s Privilege Act is sufficiently broad to encompass journalistic student work and that mainstream media organizations routinely use the work of students.

“Virtually every news organization, large and small, offers an internship or part-time employment program for student journalists,” the media brief read. Denying students coverage under the law could deter new sources from speaking, cause news outlets to shoulder undue costs to fight subpoenas, discourage reporting on court cases and cause newsrooms to clean out potentially valuable files in order to protect information from disclosure, attorneys said.

Prosecutors also claim that the request is proper and relevant to the retrial of the case — ostensibly to show student bias and poke holes in their new evidence — because the students were acting as an investigative arm of the defense team.

“It’s not true,” Protess said. “If we were an arm of the defense team we would be acting at the instructions of the defense instead of providing information to both sides after the investigations were completed.”

Protess noted that the Medill Innocence Project has frequently cooperated with requests from both prosecutors and defense attorneys to testify about something it has already made public, but objects to the requests for newsgathering materials and private student information — requests he says the project has not previously encountered.

Students who are performing similar functions as professional investigative journalists should receive the same legal protections, said Stephen J. A. Ward, a journalism ethics professor at the University of Wisconsin-Madison.

“There is [professional] advocacy journalism that pushes for social reform and investigating abuses, and in all those cases we don’t say those people aren’t subject to shield laws,” Ward said. “The students who are doing these projects are learning to operate under the normal rules that will apply when they leave journalism school.”

Although the instances in which student journalists are forced to invoke the reporter’s privilege are not common, Illinois in general has applied its reporter’s privilege broadly and included unsalaried journalists, like freelancers.

Other states with a reporter’s privilege rooted in legislative or common law have explicitly applied them to students. In New York, in Persky v. Yeshiva University in 2002 and Blum v. Schlegel in 1993, the state extended its history of protecting to students because the court determined they were gathering information in the course of newsgathering duties and had the intention to disseminate the information to the public. In 2001, a Montana court used its state shield law in Linda Tracy v. City of Missoula to protect a journalism student who prepared and disseminated a video documentary of confrontations between police and citizens.

During an upcoming hearing to consider whether McKinney should receive a new trial, Judge Diane Cannon will also decide whether to grant Northwestern’s motion to quash the prosecutors’ subpoena.

Protess said that although the Medill Innocence Project students have often received requests for testimony regarding published information, this particular subpoena has gone far beyond any request the Project has received the past.

“We’ve always cooperated as citizens — that is, if we make something public we testify about it … and that’s happened on at least four occasions, when [requests] were narrowly tailored,” Protess said. “But they are asking for unpublished materials … we would resist a subpoena from the defense with equal vigor as we would from the prosecutor.”