UPDATED: NU students not protected by journalist shield law, must turn over emails in murder case

Katherine Driessen

More than 500 emails between former head of the Medill Innocence Project, David Protess, and students working with him to free a man convicted of murder are to be released to prosecutors, a Cook County judge ruled Wednesday, according to The Chicago Tribune.

The ruling effectively refutes the defense, posited by Medill’s lawyers, that advocacy journalism is protected by Illinois’ shield law, which maintains the privacy of a journalist’s unpublished work.

The Assistant State’s Attorney, Celeste Stack, argued at an Aug. 9 hearing that the documents should be released because the students were working in conjunction with Northwestern’s Center on Wrongful Convictions rather than objectively collecting and sharing information.

At the same hearing, one of Northwestern’s attorneys, Gabriel Fuentes, said the law extends to many forms of journalism.

“Even yellow journalism is still journalism,” Fuentes said.

Protess and his students helped produce evidence which called into question the conviction of Anthony McKinney, who is serving a life sentence for a 1978 murder. Northwestern lawyers used the evidence to petition for a new case for McKinney.

In an emailed statement to The Daily, Protess said he was “disappointed” with the ruling and maintained his students investigated the McKinney case for two years with”absolutely no involvement by defense lawyers.”

“Every major reporting development, including the recantations of the State’s witnesses and the confession of the alternative suspect, happened before McKinney even had a lawyer,” Protess said in his email. “After that, all reporting decisions were made within the Medill team.”

In 2009, the state’s attorney’s office subpoenaed for access to a slew of memos and emails Protess‘ students shared with the Center for Wrongful Convictions while investigating the McKinney case. The University turned over thousand of documents, including 700 pages worth of memos and emails in May, but claimed the internal documents were protected by reporter’s privilege law.

As the University’s lawyers fought the legal battle on behalf of Protess and his students, it also conducted its own five-month review of whether Protess had turned over all relevant documents and adhered to the terms of the subpoena. In April, it concluded Protess had lied and doctored emails to avoid turning over documents to prosecutors.

“In sum, Protess knowingly misrepresented the facts and his actions to the University, its attorneys and the dean of Medill on many documented occasions,” University spokesman Al Cubbage wrote in a statement distributed after a Medill faculty meeting last April in which University Provost Dan Linzer and Medill Dean John Lavine shared the review’s findings.

Protess admitted to doctoring an email, but only in an attempt to provide greater clarity and said the documents he had not turned over were the result of “memory lapses” — the emails requested were exchanged over a three-year period between 2003 and 2006. Protess also said his wife underwent treatment for breast cancer during that time, which contributed to the memory lapses.

“How in the world am I supposed to remember precisely what number of documents went from Medill to McKinney’s attorneys,” Protess told The Daily in April.

After the University’s decision to remove him from teaching his signature Investigative Journalism class Spring Quarter, Protess took a leave of absence. He formally announced his retirement from NU this summer and now runs the autonomous Chicago Innocence Project.

The Tribune reported a University spokeswoman had no comment on whether NU will challenge the ruling, though Judge Diane Cannon ordered a 10-day stay on the decision to allow time for an appeal.

Check back for an updated article.

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