In 2009, when a prosecutor went to court to force David Protess to release information compiled by journalism students working on his famous Innocence Project, Northwestern University and the Medill School of Journalism came to the defense of the popular, pugnacious professor. After all, Protess had made the school famous for having helped free 12 men who had been wrongfully convicted, including five from death row.
Two years later, the university and Protess are in an ugly fight. The university removed him from his classroom, claiming he made misleading statements to its lawyers. Protess responded by accusing the university of conducting a “smear campaign” in search of a fall guy.
One issue in the dispute is whether Protess’ students are covered by Illinois’ “Shield Law” permitting reporters to protect confidential sources and information. The university, which at first was ready to defend the reporters’ privilege of the students, now says that Protess hid the fact that he had provided confidential student memos relating to a murder case to a defense lawyer. By providing the memos to the lawyer, Protess may have waived the privilege, the university says.
In explaining its decision to back away from Protess, the university said in a statement this month that it had “uncovered numerous examples of Protess knowingly making false and misleading statements to the dean, to University attorneys, and to others. Such actions undermine the integrity of Medill, the University, the Innocence Project, students, alumni, faculty, the press, the public, the State and the Court.”
In 2008 it looked as though the case of Anthony McKinney was the latest of Protess’ triumphs. Based on evidence largely collected by Protess and his journalism students, lawyers went to court to seek a new trial for McKinney, who had been convicted of the 1978 murder of a security guard in Harvey, Ill. Protess’ students found a witness who said McKinney was not present at the murder scene.
Protess recently told a reporter for the Chicago Reader that “Of all the many investigations I’ve ever been involved with, this was about the most airtight case of innocence. …If the McKinney case had been handled the way law enforcement has handled every one of my cases, Anthony McKinney would have been released two years ago.”
But the State’s Attorney Anita Alvarez did not react the way others had. Instead she was suspicious of the tactics used by the students, calling into question the $40 of cab fare that students paid to the witness who said McKinney was not at the murder scene.
Alvarez went to court in 2009 seeking 11 categories of information including “notes, memoranda, reports and summaries” prepared by the students. She also sought the students’ grades, Protess’ course syllabus and grading criteria.
Judge Diane Cannon refused to force Protess to turn over the grades, but, based on the account in the Chicago Reader, appeared unconvinced that student journalists should be covered by the Shield law.
“Is someone who has a website a journalist?” she reportedly said at a hearing in June, 2010. “And if I’m going to make that decision, I think it will be good news to all the parents in this state that they now have journalists for children.”
Around the time of the hearing, Sidley Austin, the firm representing the university and Protess, concluded that it had received misleading information about the student work. It withdrew from the case and the university hired Jenner & Block to conduct an inquiry into what had happened. Former prosecutors at the law firm imaged the hard drives of Protess’ computer.
The university said that the inquiry found that in December 2009 Protess “sent them a falsified communication in an attempt to hide the fact that the student memos had been shared with Mr. McKinney’s lawyers.”
Protess had turned over a November, 2007 email stating, “My position about memos, as you know, is that we don’t keep copies….”
The original 2007 email stated, “My position about memos, as you know, is that we share everything with the legal team, and don’t keep copies….” In other words, Protess had removed the phrase about sharing the memos with the legal team.
The university maintains that Protess knew from the start that sharing the memos jeopardized that reporters’ privilege claim. But Protess responds that the university knew from the beginning that the memos had been shared. He also maintains that the altered email had a notation at the top saying that part was redacted.
Protess says that the phrase he removed was inaccurate and he was altering the email to make it more truthful. By stating that “everything” was turned over, the email suggested that every student document was turned over to lawyer for McKinney. In fact, many student documents were of a personal nature and never were included in the file turned over to the defense lawyer, he said.
Protess also said that his wife had been fighting cancer at the time and that his memory was not as clear for that reason.
Earlier this semester, Medill removed Protess from his signature class, leading students to protest his absence. Earlier this month, Dean John Lavine met with the faculty behind closed doors to present them with Jenner & Block’s findings. Then the university released its statement explaining the action.
In response, Protess called for an independent review of the entire matter and raised the question of whether Dean Lavine is acting “in retaliation” for Protess’ involvement in a 2008 scandal concerning quotes Lavine had used in a Medill alumni magazine. Protess spoke to students who might have made the statements quoted by the dean and found that none had. The university cleared Lavine although the source for the quotes was not identified.
“I want to be clear, I’m not accusing the dean of anything here,” Protess said in an interview with the Daily Northwestern this month. “I’m saying, ‘Let’s have an independent, impartial review that looks at the problems that have occurred in the past few years.'”
Protess, who has taken leave this semester, has started a new Chicago Innocence Project intended to involve journalism students from other journalism schools.
Meanwhile, McKinney remains locked up in the psychiatric unit of the state prison at Dixon, Ill.