CHICAGO - No one from the Medill Innocence Project was in the Cook County Criminal Courthouse Wednesday morning, but that didn’t stop their actions six years ago in a southern Illinois forest preserve from becoming the latest flashpoint in the legal firestorm that the case of convicted murderer Anthony McKinney has become.
In a dramatic hearing, prosecutors revealed a glimpse of what is contained in hundreds of student documents that Northwestern University and the Cook County State’s Attorney’s office have fought over for a year and a half, sparking a new legal debate and leaving the Innocence Project’s next step in doubt.
Assistant State’s Attorney Celeste Stewart Stack declared in court that Innocence Project students violated the law in investigating the McKinney case by illegally recording a conversation with a potential alternate suspect in a Belleville park. But Medill Prof. David Protess, who runs the project, insisted the taping was legal.
The revelation came as prosecutors sifted through some 800 pages of student documents that were turned over last week by NU and a teaching assistant with the Innocence Project. Among the records was a copy of a recording made by an “eavesdropping device” in May 2004. In Illinois, it is illegal to record a conversation without permission or a court order.
In an interview outside the courtroom, Stack declined to speculate if any charges would result from the recording.
Medill Dean John Lavine, who attended the hearing, declined to comment.
“The University does not condone any activity that violates state law,” University spokesman Al Cubbage said outside the courtroom. “The University certainly expects that students conduct themselves in ethical and legal ways. And professors.”
NU is formally reviewing the procedures used by the Innocence Project, said Cubbage, although he declined to elaborate.
Protess was not in court Wednesday. But in a telephone interview later, he acknowledged lawyers approached him two weeks ago to request his cooperation with a review. However, he said reviewers haven’t yet asked him any questions.
“When they ask me to come in and discuss what our policies and procedures are, I’ll do it happily,” he said. “This is a constructive effort.”
Protess, whose work freeing wrongly accused prisoners has brought positive attention to NU, strongly insisted that all actions by Innocence Project students have been legal, including the recording mentioned in court. He cited a 1996 letter by then-Illinois Attorney General Jim Ryan, which described exemptions to the statute regarding secret recordings.
According to the letter, secret recording by a private citizen is allowable if the person being recorded is suspected of having committed a crime and “there is reason to believe that evidence of the criminal offense may be obtained by the recording.” That’s exactly what happened in that situation, Protess said.
He added the primary reason that a student wore a wire was to allow teaching assistant and private investigator Sergio Serritella to respond if a dangerous situation arose. That decision was made by Serritella when the person being interviewed, convicted killer and potential alternate suspect Tony Drake, asked for the interview to be moved to a secluded forest reserve.
“What happens in class, to some extent, goes out the window in those circumstances,” Protess said. “I’m quite sure that when the state attorney general’s office looks at this, they will see there hasn’t been a violation of the law.”
Tom Breen, who represents Serritella and turned over the copy of the recording on his behalf, also argued the taping was legal because of the danger of the situation. Serritella also did not attend Wednesday’s hearing.
While Protess defended the action’s legality, he acknowledged that the ethics behind it were debatable because “there is no universal code” of ethical journalistic conduct.
The Medill Integrity Code, which all Medill undergraduates must sign, does not make an explicit reference to the use of secret recording devices. Although she declined to comment on this case, Mary Nesbitt, the Medill associate dean for curriculum and professional excellence, said state law is most important in a situation such as this.
“The law always has to be obeyed, so that always comes first,” she said.
Nesbitt also pointed out the Integrity Code only applies to students, not faculty.
The copy of the secret recording is the first significant product of a subpoena filed by prosecutors in May 2009, a year after lawyers from the Center on Wrongful Convictions – a program run by NU’s law school – used evidence gathered by the Innocence Project as the basis for a motion to re-open the murder case of McKinney, who was accused of murder at age 18 and convicted three years later, in 1981.
In court Wednesday, prosecutors indicated they were still processing the 800 pages of submitted documents. Stack said prosecutors were not completely satisfied because they did not know how many other student memos regarding the McKinney case were created or even the names of former students who worked on the case.
In order to “see what else is out there,” she formally requested a log of student material the University is still withholding because they were never given to the Center on Wrongful Convictions and thus are not required to be turned over.
“The University will fully cooperate with the state’s attorney’s office,” said Charles Sklarsky, who is representing NU.
As he did in an interview last month, Protess accused the NU Office of the General Counsel of “selling out” former students by turning over private student documents that are irrelevant to the McKinney case. He called Wednesday’s hearing another symbol of prosecutors’ “ongoing effort to distract attention from the real issue in this case.”
“Who’s talking about the evidence about McKinney now?” he said. “The evidence of his innocence is powerful, but it’s not being discussed because the discussion is on the methods of my students, and that’s unfortunate.”
McKinney himself was barely mentioned during the half-hour court hearing Wednesday, as seven attorneys representing various parties crowded around the bench of Judge Diane Gordon Cannon, tip-toeing through the legal intricacies which have overshadowed the question of McKinney’s innocence.
One of those attorneys, Richard O’Brien, repeated his pleas to be released from the case. O’Brien, who for 17 months represented NU, Protess and Serritella in the case, requested to withdraw last month due to a split in his three clients’ legal “interests.” Cannon allowed him to withdraw from representing Protess and Serritella but mandated he remain as co-counsel with Sklarsky for NU. She reiterated her position Wednesday.
“You’re not leaving this case unless you give me a reason other than you don’t want to be here,” she said. “I can’t make it clearer.”
No one was willing to guess in which direction the case may go from here. The next hearing is scheduled for Dec. 15.
“We are now over a year and 800 pages later with more to come,” Cannon said. “Everyone was outraged that they asked for them. Now they’re happy to turn them over. The plot thickens.”
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