ILLINOIS — Morethan 500 emails chronicling the efforts of a Northwestern University journalismprofessor and his students to free a man serving a life sentence are notcovered under Illinois’ shield law, a judge ruled Wednesday.
After a two-year legal dispute, Cook County Judge DianeCannon ruled that Medill School of Journalism students and former InnocenceProject instructor David Protess were “acting as investigators in a criminalproceeding,” not journalists, when their class delved into the case of AnthonyMcKinney.
Cannon ruled that the Medill students were working under thedirection of McKinney’s lawyers while gathering evidence and conductinginterviews and were not entitled to reporter’s privilege protection, The Chicago Tribune reported.
Northwestern spokesman Alan Cubbage said the school waspleased overall with what the judgment meant for student journalism.
“Basically, we’re encouraged by the judge’s ruling that theIllinois Reporter’s Privilege Act applies to student journalists, which sheruled, but said it did not apply in this particular case because of the factsof this particular case,” Cubbage said.
Protess, who has since left the university, said he is“deeply disappointed” by the decision.
“The facts show that my students investigated the McKinneycase for two years with absolutely no involvement by defense lawyers,” he saidvia email. “Every major reporting development … happened before McKinney evenhad a lawyer.”
After McKinney gained legal representation, all reportingdecisions were still made within the Medill team, Protess added.
The Student Press Law Center, along with three otherorganizations, filed a friend-of-the-court brief in January 2010 in support ofthe students. But SPLC Executive Director Frank LoMonte said Wednesday’s rulinglikely would not be overly detrimental to student journalists.
“If the basis of the order is collaboration betweenjournalists and the legal defense team, then it shouldn’t have much effect ontraditional journalists,” LoMonte said.
McKinney was convicted and jailed in 1978 for shooting asecurity guard in Harvey, Ill. The students, as part of their Innocence Projectclass, took up an investigation into his conviction in 2003.
Through their reporting, students unearthed evidence thatconvinced them of McKinney’s innocence; that evidence included recantations ofstate witnesses and the confession of an alternative suspect, Protess said.They then shared the information with the Northwestern University School of Law’sCenter on Wrongful Convictions, helping to win a new court hearing forMcKinney.
Assistant state attorneys subpoenaed Protess on May 20, 2009to appear in court and provide interviews, electronic communications, notes,course syllabi, grading criteria and receipts for expenses incurred by studentsduring their investigation.
Attorneys for Protess and the students fought to quash thesubpoena on the grounds that the students are protected under the reporter’sprivilege law and the Family Educational Rights and Privacy Act (FERPA).
The university did turn over student communicationsexchanged with the Center on Wrongful Convictions, but it had refrained fromreleasing internal emails and memos.
Protess said the real issue at hand is that an innocent manhas been in prison for 33 years. But, he said, he sees large consequences forreporters’ rights as well.
“If the judge’s ruling becomes precedent, it will mean thatjournalists who advocate for a cause will be deprived of their basic legalrights,” Protess said.
The ruling is unfortunate for the program, but the“one-of-a-kind” project is not directly comparable to a traditional student newsroomendeavor, LoMonte said.
Sharing newsgathering information with one side of a legaldispute and not the other is likely to become an issue, he said.
“It’s not unheard of that journalists share information withsources,” LoMonte said, adding that there is a difference in exchanginginformation and handing over documents to a defense team.
A written ruling is forthcoming. The state attorney’soffice, which is prosecuting the case, did not return a call for comment bypress time.
Cannon granted a 10-day stay on her ruling. Northwesternattorneys have not yet decided whether to file an appeal, Cubbage said.