A Wednesday morning hearing in the case of Anthony McKinney was par for the course: updates on which Northwestern student documents have and haven’t been turned over to prosecutors, a dressing-down of the many assembled attorneys by the judge and yet another important court date set for next month.
The hearing was the latest in a string of sessions regarding the Medill Innocence Project’s three-year investigation into McKinney’s potentially-wrongful 1981 murder conviction. A subpoena was issued last year for myriad documents related to the investigation and the project.
Against the will of the project’s leader, Medill Prof. David Protess, NU has turned over many of the requested documents. They’ve also submitted a log of documents that they don’t believe need to be turned over because they have never been shared publicly and are thus protected under reporter’s privilege in Illinois law.
That log, revealed in court Wednesday, includes on 114 e-mails sent between Protess and Innocence Project students between 2003 and 2006. Charles Sklarsky, who is representing NU in the case, likened the e-mails to “newsroom” discussions.
Those 114 e-mails seem destined to become the new focus of the case.
There are two ways to determine if the messages are privileged, Assistant State’s Attorney Celeste Stewart Stack said after the hearing.
“Either the judge is going to have to look at them in camera, or make a ruling on privilege,” she said.
An “in camera” ruling would consist of the judge reviewing the documents privately in chambers and making a decision of whether or not to turn them over to the prosecution.
Even if it is ruled the e-mails are protected, Stack said it remains possible the prosecution will get them because privilege can be legally disregarded if the documents are deemed important enough.
In addition to those 114 e-mails, there are an unspecified number of e-mails from outside of that timeframe that may relate to McKinney but do not relate directly to the Innocence Projects investigation, Sklarsky said.
And there are still more items on the subpoena that have not been addressed, according to Stack. That includes a request to see the syllabus for Protess’s Investigative Journalism course.
Stack asked the attorneys for NU, Protess and Investigative Journalism Teaching Assistant Sergio Serritella to each give her a point-by-point list addressing each section of the subpoena.
NU spokesman Al Cubbage said the university will continue to review its materials and determine what it will and won’t turn over.
Earlier in the 30-minute hearing, attorneys from the NU Center on Wrongful Convictions, which is representing McKinney, requested that all documents submitted as evidence be sealed, or made unavailable to the public. After hearing arguments, Cook County Circuit Judge Diane Gordon Cannon “respectfully denied” the motion.
At another point in the hearing, Cannon expressed frustration with how long the situation was taking to be resolved, and how often lawyers don’t seem to be up to speed.
“A few times I’ve been told I don’t give a chance for lawyers to talk,” she said. “Then I let lawyers talk and nothing is said.”
The next hearing in the case is scheduled for Jan. 20.
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