Northwestern Students' Records Subpoenaed by Illinois State Attorney Office

Oct. 20, 2009 — -- A group of Northwestern University journalism students who believe they found proof that exonerates a man held behind bars for 31 years are fighting a request from the Illinois state prosecutor's office that they turn over their grades and course materials as part of its investigation into the possible wrongful conviction, arguing that it would jeopardize future investigations.

The university's lawyer, Richard O'Brien, told ABCNews.com the Cook County's prosecutor's office is wrongly focusing its attention on the academic history of the students working for the Medill School of Journalism Innocence Project and not enough on the case of Anthony McKinney, who the students believe was convicted and incarcerated for a murder and armed robbery he did not commit.

"The prosecution is saying that maybe the grades of the students were skewed in a way to incentivize them to try and find evidence of innocence," O'Brien told ABCNews.com. "That's obviously not that case, and we don't believe it is material to the question of whether McKinney is innocent."

The Innocence Project at Northwestern, led by journalism professor David Protess, was founded in 1999 and uses the work of undergraduate journalism students to investigate cases of people suspected of being wrongly convicted. Since its inception, the project has freed 11 men, five of whom were sitting on death row.

The college program has had a large impact on Illinois' use of the death penalty. In January 2000, during a speech in which he enacted a state moratorium on the death penalty, Illinois Gov. George Ryan referenced the Northwestern students' efforts in helping to exonerate death row inmate Anthony Porter in 1999. Ryan later commuted the sentences of all 167 of Illinois' death row prisoners, citing concerns about errors in the process and again citing the work of Protess and his students.

Now, the school worries that turning the legal microscope on the students could deter future students from participating in the Innocence Project.

"We've uncovered 11 instances of wrong convictions -- we ought to be applauded by the state, but instead we're constantly being put under a microscope," O'Brien said.

Northwestern Students' Records Subpoenaed

Students from the Innocence Project began researching McKinney's case in 2003 on the advice of his younger brother, Michael McKinney.

Three years later and with the help of 30 students, the group was certain that it was not McKinney, then just 16 years old, but two other men who were responsible for the 1978 shooting death of a security guard. McKinney was convicted of murder and armed robbery and sentenced to life in 1982. Now 49, he has been in prison ever since.

Presented with the group's findings in 2006, the Center on Wrongful Convictions at the Northwestern Law School filed a post-conviction petition in October 2008 in the Cook County Circuit Court, requesting that McKinney's prison term either be vacated or he be given a new trial.

The case was assigned to a judge later that year, and in May 2009 state prosecutors subpoenaed the students' binders, grades, e-mails and course syllabi in what they call a "truth seeking process," according to court documents. The students names have not yet been released.

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 ABCNews.com, 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.

Northwestern Concerned About 'Dangerous Precedent'

Don Craven, the executive director of the Illinois Press Association, says he's worried that if the prosecution succeeds in subpoenaing the students' records the Project could fail to exist altogether in the future.

"The practice impact of what the prosecution is doing in this case is undermining the work on this particular investigation and the Project as a whole," said Craven.

"If people are worried that a U.S. attorney could come knocking on your door to get your notes, how willing will these students be to continue doing their jobs, and how willing will people be to come talk to you about [cases like McKinney's]," said Craven.

While O'Brien awaits the Nov. 10 hearing to determine whether the subpoena will be thrown out or honored, he too says he's worried that Protess and his students may never again be able to do the work that has so far changed so many lives.

"This is a dangerous precedent if the state is entitled to get these materials," said O'Brien.