In the more than two-year legal saga that has engulfed the Medill Innocence Project and its former director David Protess, a Sept. 7 ruling that more than 500 emails between Protess and students he worked with to free a man convicted of murder are to be released to prosecutors, marked a new chapter.
With it came a new theme: that of the at-times blurry distinction between journalist and investigator, and the disparate protections afforded to both.
Cook County judge Diane Cannon’s decision ruled the students working to produce more evidence about the 1978 murder conviction of Anthony McKinney were investigators rather than journalists. Canon’s ruling centered around the information that the students working with Protess collaborated almost exclusively with law students at the Center on Wrongful Convictions.
“The typical journalist is not an advocate,” said Joe Mathewson, an assistant professor of Ethics and Law of Journalism at NU.
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lawyers, that advocacy journalism is protected by Illinois’ shield law, which maintains the privacy of a journalist’s unpublished work.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.
An external and internal battle
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 ethics of advocacy
Although Mathewson said he doesn’t view advocates as journalists, he said he believes the court ruling was unfair. He said Protess’s claims that the students did not have any contact with McKinney’s lawyers until they were well advanced in their investigations means the work completed before this contact should not be released to prosecutors.
“Late in the game, they began to communicate with McKinney’s lawyers,” he said. “At that point, the nature of their work changed.”
Alec Klein, the new director of the Medill Innocence Project, agrees with Mathewson that journalists are not supposed to be advocates.
“Once he had his students hand over information, he relinquished the reporter’s privilege,” Klein said.
Ordinarily, Illinois’s shield law protects the privacy of any journalist’s unpublished work. Klein said in the future, his students won’t have to worry about having these rights denied.
“Because we won’t be sharing information with defense attorneys, we won’t be waiving reporter’s privilege,” he said. “It’s a reminder to all journalists that we don’t take sides. The ends don’t justify the means; we have to do the work properly, ethically.”
Despite his beliefs about the ruling, Mathewson said the current definition of a journalist as illustrated in the shield law is flawed. Given the increase in information dissemination via blogs and social media, he said, the definition of a journalist as someone employed by a publication or other news medium is outdated.
“That definition is going to have difficulty standing up these days,” Mathewson said.
According to Vice President of University Relations Al Cubbage , the University administration respects the judge’s decision and is currently deciding whether or not it wants to appeal the ruling.
