Innocence Project memos case could finally come to end Wednesday

Brian Rosenthal

A fight over Northwestern student documents that has lasted 18 months and garnered significant national media attention may come to a formal conclusion in Cook County court Wednesday, according to interviews with those on all sides of the complicated case.

Separate attorneys representing NU and Medill Prof. David Protess will gather with prosecutors in court at 9:30 a.m. for a status update about the state’s subpoena of Medill Innocence Project student memos related to the case of convicted murderer Anthony McKinney.

Prosecutors are expected to tell Judge Diane Gordon Cannon if a new batch of student records turned over by the University last week will be sufficient to satisfy the subpoena.

They filed the subpoena in May 2009 to gain 11 types of documents related to the Innocence Project investigation of McKinney, who is seeking a retrial of his 1981 murder conviction based on evidence gathered by students. The University had previously denied the request, claiming that the memos were protected by “reporter’s privilege” because they had not been shared with anyone.

But acting on new information that indicated Protess had waived the privilege by releasing the memos to the Center on Wrongful Convictions, the University gave prosecutors a large number of documents last week, University spokesman Al Cubbage said.

Cubbage declined to say how many memos were turned over or how many documents the University is still withholding. But he did stress that “what has not been turned over is student grades and transcripts.”

In an interview on Tuesday, Protess, who runs the Innocence Project, called the University’s forfeiture of documents “unfortunate.”

“I’m maintaining that privilege was not waived on many memos,” said Protess, adding that the memos are private documents that are irrelevant to McKinney’s guilt or innocence.

Cubbage declined to comment on how the University came to the conclusion that reporter’s privilege had been waived and declined to speculate on what that meant about previous statements by Protess.

Cubbage, who plans to attend the Wednesday hearing, said he is expecting to find out then if the state is going to request more documents. Protess said “it’s really hard to say” what will happen, but it’s possible that a resolution will be reached.

Earlier this month, Assistant State’s Attorney Celeste Stewart Stack told a reporter for the Chicago Daily Law Bulletin that “it’s our desire it will conclude on the 17th, subpoena matter.”

A spokesman in Stack’s office declined to comment and indicated more information would be available at the hearing.

The controversial and complex case, widely viewed as an important national precedent for the future of student journalism, took a sharp turn last month when NU and Protess decided to obtain separate legal counsel.

Prior to that, both parties were represented by prominent Chicago attorney Richard O’Brien. O’Brien has withdrawn from representing Protess, but Judge Cannon has so far denied his request to withdraw from representing NU as a whole.

Meanwhile, Protess has obtained another prominent Chicago attorney, Robert Stephenson, and NU has obtained a slew of high-profile attorneys to represent its interests, including Charles Sklarsky and Anton Valukas.

All of the attorneys are expected to be on hand Wednesday for a hearing that is sure to receive significant attention from regional and national publications.

“There are a number of possibilities here,” Protess said. “I don’t know what’s going to happen.”

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