Northwestern Students' Records Subpoenaed by Illinois State Attorney Office

Specifically addressing the request for student binders and grading criteria, the prosecution said in the court documents that it wanted the materials to ensure there was "no bias" on the part of students during the investigation. Stating that they are not "well-informed" about how the class works at Northwestern, the prosecutors claimed they want to be sure students were not told that they would get better grades if they found exculpatory evidence on McKinney's behalf.

The prosecution also argues that the students and their professor, Protess, are not protected by the Illinois Reporter's Privilege Act, which prevents journalists from being required to turn over sources acquired during an investigation.

Sally Daly, the spokeswoman for the Cook County state's attorney office, did not return repeated messages left by, but told the Chicago Tribune that the information being sought was "relevant to the case."

At an appearance Monday night at the City Club of Chicago, Cook County State's Attorney Anita Alvarez defended the state's decision to go after the students' records.

"If you're going to put yourself into the role of an investigator, then you need to turn over whatever your notes are," said Alvarez, according to the Chicago Tribune.

Student Subpoena 'Highly Unusual'

Phyllis Goldfarb, the Jacob Burns Foundation Professor of Clinical Law and George Washington University, said that this type of subpoena for student records is "highly unusual."

"It's hard to understand the motive for a subpoena that is this broad," said Goldfarb, who is not associated with the Innocence Project.

"This is an investigative journalism class at a major university," she said. "One of the fundamental themes of any journalism class is integrity and objectivity, so the innuendo that the [state attorney] would find something in these documents that would say a student was offered an 'A' if they found the man innocent is an attack on the integrity of the institution."

"And I understand why the university would want to resist it, because if that's their motive it discredits the educational enterprise," said Goldfarb.

The suggestion that the students working for the Innocence Project were somehow motivated to find McKinney innocent in an effort to get good grades is "not true," according to O'Brien.

"The witnesses are going to say what they're going to say, and we didn't make up testimony and we didn't speak on behalf of the witnesses," O'Brien said. "The prosecution should focus on them, not us."

O'Brien said that while the Project's findings offered enough background to the prosecution to pursue their own case, witnesses would have to be re-interviewed by the state should a re-trial be granted, making the students' binders and grades unnecessary.

"Even though they are going to do their own work they won't just accept what we've published," said O'Brien, referring to the materials that Northwestern has supplied the prosecution, which O'Brien says includes any on-the-record interviews or material that has been published.

According to the Innocence Project headquarters in New York -- the first of many worldwide branches of the organization, founded in 1992 to help prisoners who could be proven innocent through DNA testing -- there has never before been an instance in which students involved in an investigation have been asked to turn over their own records, grades or other personal information.

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