Should J-Students Work For The Defense?

In May the Illinois State’s Attorney’s office issued a stunningly unusual subpoena. It asked for the student grades, grading criteria, class syllabi, expense reports, and even e-mail messages of undergraduates taking an investigative reporting class at Northwestern University. The class tied into the Medill Innocence Project, a program administered by Northwestern’s Medill School of Journalism that gathers evidence aimed at overturning wrongful criminal convictions. Over the following months the journalistic world has seethed with outrage at what seemed to be a best a fishing expedition and at worst an act of retaliation against the students for coming up with evidence that could free 49-year-old Anthony McKinney, convicted by a jury of first-degree murder and serving a life sentence without parole for shooting a security guard named Donald Lundahl in the face during the course of a 1978 armed robbery in Harvey, Ill., a Chicago suburb. An Oct. 31 editorial in the Washington Post stated: “These subpoenas — and the stunning overreach they represent — should be quashed.”
Perhaps they should—although on Nov. 10 the state’s attorney’s office filed a 54-page document, complete with signed investigative reports, in which the office alleged that the Northwestern students gave money to two of the witnesses they interviewed (for a reporter to pay sources is regarded as highly unprofessional), including $40 to buy crack cocaine to a man named Tony Drakes in exchange for a videotaped confession to the murder in 2004. The reports also stated that students had flirted with several male witnesses (including Drakes) who then gladly told them what they wanted to hear; and that the Medill school refused to give prosecutors access to much of the students’ notes and tapes, including all records pertaining to student interviews with a second man, Robert Magruder. According to Drakes’s videotape, Magruder was supposed to have fired the fatal shot at Lundahl. (Both Drakes and Magruder denied involvement with the murder in more recent interviews with state’s attorney’s investigators.) The state’s attorneys argue that the students enrolled in the course weren’t functioning as reporters gathering news but as investigators for their professor, David Protess, who also happens to run the Medill Innocence Project. The tapes and notes they produced didn’t result in the students’ writing any news stories, even for Northwestern’s student paper, the state’s attorneys say, but rather, went straight to lawyers affiliated with Northwestern’s law school who are representing McKinney in his quest for a reopening of his conviction.
Furthermore, accompanying the students during the 2004 interview with Drakes (and apparently in charge of the interview, according to the state’s attorney’s office) was a private detective, Sergio Serritella, whose LinkedIn page describes him as the CEO of Tactical Solutions Group, a private-investigations firm in Chicago specializing in criminal cases. (The Medill school says that Serritella, who works on and off for the institution, was along only to provide security, as Drakes had served time for a different murder.) In short, says the state’s attorney’s office, the students, even though they were enrolled in a journalism class, weren’t entitled to invoke the protection of Illinois’s shield law, which allows reporters to keep their notes and sources confidential.

All of this raises a question that few of the editorial writers who are rallying around Medill have considered: Why is a journalism school running an “innocence project” in the first place? As very name suggests, innocence projects (and there’s one in nearly every state) all build on certain ideological assumptions: that large numbers of innocent people languish in prisons, that the prosecutors who put them there are endemically dishonest and will do anything to railroad a conviction, and that police routinely pressure people to confess to crimes they didn’t commit. Since even prosecutors admit that mistakes can be made in the criminal-justice system, the projects have yielded some results especially where DNA testing has been involved. Protess, for example, says that his students’ efforts have resulted in 11 reversals of convictions since he set up the project at Medill in 1999.
Yet—as even Protess himself conceded in an e-mail to me, the business of the Medill Innocence Project is “advocacy.” And since advocacy is supposed to be the terrain of lawyers fighting for their clients, not journalists ferreting out the news, nearly all innocence projects in America are affiliated with law schools (the first was founded at Yeshiva University’s Cardozo Law School in 1992), state bar organizations (as in Georgia), or public defender services (as in Connecticut). The administrators of innocence projects tend to have strong beliefs. Cardozo’s website, for example, proclaims that “wrongful convictions are not isolated or rare events”—an assertion that prosecutors, who say wrongful convictions are exceedingly rare, vigorously dispute.
News reporters, on the other hand, are not supposed to be advocates, and are supposed to approach their sources with skepticism and their reporting assignments with fair-mindedness. There’s an old newsroom adage, for example, that if your mother tells you it’s raining, you’re supposed to step outside and check for yourself.
The Medill Innocence Project is in fact one of only a handful of such projects that’s affiliated with a university journalism program in contrast to a legal institution. Others are at Brandeis, Point Park University in Pittsburgh, the University of Missouri, and the University of Texas-Austin. Those few innocence projects affiliated with journalism schools have tended to go the way of the law school projects, abandoning skepticism to promote an ideology that paints convicted criminals as victims of social injustice. The Brandeis Innocence Project, for example states on its website that America faces an “ethical crisis” of “200,000 innocent people” (10 percent of the U.S. prison population) wrongfully convicted “in large part because of race and class.” The website continues: “The work of the Institute’s journalists and students will shine a greatly needed spotlight on the increasing inequities between the powerful and the powerless.”
Not surprisingly, such anti-prosecution rhetoric on the part of journalism schools, which presumably gets handed down to the students who enroll in their programs, has led some criminal defense lawyers and anti-death-penalty advocates to regard news reporters as their unpaid investigators whose job is to dig up evidence favorable to the lawyers’ clients—all on the dime of the papers that pay their salaries. A May 21 story in the New York Times reported on death-penalty opponents’ complaints that the dwindling size of newsrooms, leading to budget cutbacks for investigative reporting, meant that they could no longer count on journalists to work for their side for free. “In the past, lawyers opposed to the death penalty often provided the broad outline of cases to reporters, who then pursued witnesses and unearthed evidence. Now, the lawyers complain, they have to do more of the work themselves and that means it often doesn’t get done,” the Times’s Tim Arango wrote.
The journalism school-based innocence projects do little to correct the impression that they’re biased in favor of convicted criminals. Indeed, both the Medill and the UT-Austin projects work closely with their universities’ law schools and legal clinics. The McKinney case, for example, is being handled by lawyers with Northwestern’s Center on Wrongful Convictions. Protess, the Medill professor who directs the Medill project and also teaches the investigative reporting class whose students over three years unearthed the evidence leading to the hearing in the McKinney case, told me that he takes pains to keep his advocacy activities as director of the Innocence Project out of his classroom, where he focuses strictly on the techniques of in-depth reporting. “I have no problem keeping these roles separate, in the same way that a professor who’s an editorial writer keeps his/her opinions out of a class he/she may be teaching,” Protess wrote me. “We’ve had two noteworthy cases over the past four years where the students uncovered proof that the prisoner did the crime,” he wrote.
Still, a journalism student at Medill who clicked onto the Innocence Project’s web page devoted to the McKinney case might be forgiven for being confused. The web page report on the case, for example, takes care to point out that Lundahl, the victim of the murder, was white, while a photo on the page shows McKinney to be African-American. The web page also states that McKinney (who had signed a confession to the crime) was convicted by a “suburban” jury–thus injecting race and class into the story in a way that newspapers, that usually omit ethnic identifications, do not. The conclusion of the Innocence Project’s website report reads like a criminal defense lawyer’s pull-out-the-stops summation to the jury: “In sum, the actual perpetrators were widely known at the time of the crime, yet law enforcement officials arrested, prosecuted and sought the death penalty for an innocent teenager who happened to be near the crime scene….”
Lawyers in the state’s attorney’s office say they need the information they have subpoenaed concerning Protess’s class—which they claim did not include exams or term papers—in order to find out whether the young people thought they would be rewarded with good grades for turning up exonerating information. This rationale isn’t as farfetched as it sounds. If the investigators’ reports of their interviews with the men who are now supposed to have committed McKinney’s crime have any truth to them, teams of eager-to-please 22-year-old journalistic tyros were so desperate to come up with a story for their professor that they gave cash to their sources and at least created the appearance of acting unprofessionally. And the state’s attorney’s office’s assertion that journalism isn’t journalism when it gets into the innocence-proving business for the benefit of lawyers isn’t farfetched at all.
The most troubling aspect of the Medill Innocence Project, though, is that it has taught a good many budding journalists that their job isn’t to cast a skeptical reporter’s eye on whatever they see and hear but to don ideological blinders and view the perpetrators of heinous crimes as victims of society.