when the Cook County State's Attorney's Office subpoenaed hundreds of records from an investigation conducted by the class as well as grades and other academic records of the students involved in the probe. The subpoena focused on a three-year investigation into the 1978 conviction of Anthony McKinney, who is serving a life sentence for killing a security guard. Among the documents subpoenaed were a series of memos, some of which summarized interviews, that were written by students and later shared with McKinney's lawyers a move that experts say meant those notes were no longer protected by journalistic privilege.
The controversy culminated this year with Northwestern which initially supported Protess alleging that he lied to administrators and doctored an e-mail. Protess retired effective August 31. Meanwhile, McKinney remains behind bars as the State's Attorney's Office remains convinced that the conviction it won was proper.
Prosecutors issued the subpoenas when their investigators at the urging of the innocence project looked into the McKinney case and started raising questions about the students' techniques and findings. Among the things investigators were told: A female reporter flirted with a source to garner information; students paid a source for information; students used false identities.
"It became clear that we needed to explore the potential bias and the true interest of the students," says Sally Daly, director of communications for State's Attorney Anita Alvarez. She adds that her office's investigators also found discrepancies between what the student journalists say they were told and what the same witnesses told law enforcement officials.
Protess angrily denies that his students used money or implied promises of sex. He says students assumed false identities on two occasions to protect themselves when tracking down sources but never did so during interviews.
If this sounds like a "ripped from the headlines" tale for "Law & Order," that's because it is. Last year, the popular police drama included a segment in which a university student working at the school's "Innocence Collective" may have paid a witness in a murder case.
The charge that may have the most serious impact on Northwestern and the three other universities that operate innocence projects connected to journalism schools is the disclosure of just how close student journalists were to defense lawyers in at least one case investigated under Protess.
"On June 24, 2010 this litigation took a dramatic turn when it was revealed in open court that the investigative materials produced by journalism school students had been previously shared with McKinney's attorneys and others associated with the law school," prosecutors wrote in a brief filed in June as part of a court fight over whether documents, including students' academic records and interview notes, should be turned over to the State's Attorney's Office. "MIP [the Medill Innocence Project] agreed that it had waived any assertion of the Illinois Reporter's Privilege as to any materials shared with the CWC [Center on Wrongful Convictions]," a reference to the Northwestern Law School program that is representing McKinney and had represented other inmates whose cases were investigated by the innocence project. Approximately 2,000 pages have been turned over to prosecutors by the two Northwestern programs, the brief stated.
At first, Protess enjoyed the public and courtroom support of the university in fighting the subpoenas. But the relationship ultimately soured, and this year Northwestern publicly attacked its onetime star professor. After Lavine met with the school's faculty in April to discuss the findings of a university investigation, Alan K. Cubbage, vice president for university relations, released a bombshell statement laying out a case against Protess.
A review of Protess' actions by the university and outside attorneys "uncovered numerous examples of Protess knowingly making false and misleading statements to the dean, to University attorneys, and to others," the statement said. "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 addition, the statement said: "The review uncovered considerable evidence that Protess..authorized the release of all student memos to Mr. McKinney's lawyers despite his repeated claims to the contrary."
Protess admits that "scores" of documents were shared with McKinney's lawyers but flatly rejects the bulk of the university's charges. "It was clearly an effort of overkill," he says. "It was exaggerations, hyperbole and distortions of fact." Protess, in an interview, argued the project did not share most of the student memos and other records with defense lawyers. He recalls that he only authorized students to share memos needed to have attorneys prepare affidavits for the sources to sign.
While it is unusual for sources for newspaper stories to sign affidavits, Protess says that sometimes, when doing an innocence project investigation, it is necessary to receive the sworn statements. The affidavits are needed in case the source later changes his or her story, Protess says, noting that the sources in such cases may be people with criminal records who are making statements in which they are admitting wrongdoing.
Protess points out that the McKinney investigation occurred between 2003 and 2006, when he was preoccupied with his wife's battle against cancer. "In hindsight, it was a mistake," Protess acknowledges. "It created boundary issues that muddied the waters."
In a follow-up e-mail, Protess acknowledged he didn't know how many of the students' memos may have been shared with McKinney's lawyers. "I've learned since [the McKinney investigation] that McKinney's lawyers may have received even more than that from students who were probably trying to be helpful. (They kept copies of their own memos)."
University officials and prosecutors contend a great deal was shared with McKinney's lawyers at the Center on Wrongful Convictions.
A June court filing by the State's Attorney's Office said that "newly obtained records show that [the innocence project] tendered all the witness interview materials to McKinney's attorney at CWC in April 2005 and continued to produce materials to the attorneys until at least October 2006."
What's more, the university charged in April that Protess had doctored an e-mail about the memos before turning it over to the university and its lawyers. "In December 2009 Protess sent..a falsified communication in an attempt to hide the fact that the student memos had been shared with Mr. McKinney's lawyers," Cubbage said in his statement. "This communication included what Protess said was a copy of a November 2007 email, unredacted save for removal of 'personal information,' that he had sent to his program assistant. The email copy he provided stated that: 'My position about memos, as you know, is that we don't keep copies...' However, examination of the original 2007 email, which was only recently obtained by the University, revealed that the original wording actually was: 'My position about memos, as you know, is that we share everything with the legal team, and don't keep copies...' "
Protess acknowledges he changed the e-mail but adds that the university knew he had done so. He says he changed it because the original was "clearly too casual." The change, he says, provided a better picture of what the actual practice of the innocence project was.
Even Protess supporters say that move was out of order. "That was a stupid decision, no matter how well intended," says Steve Weinberg, a University of Missouri professor who helped launch an innocence project at the school. Still, Weinberg supports Protess. "The people who let him go must be nuts," says Weinberg, a former executive director of Investigative Reporters and Editors. Weinberg says Protess can be a tough person to get along with, but, he adds, "there are very many great investigative reporters who are not easy people to get along with."
Protess contends that what happened in the McKinney case was an "aberration" and says he hadn't shared student memos with lawyers in other cases. "I can't recall any case besides McKinney in which the Medill team shared documents with either side prior to the publication of stories about the case," he said in an e-mail.
Still, the disclosures cast a shadow on the past work of the Medill Innocence Project.
"If Protess misled administrators and attorneys in this case and it appears he did what does that say about all those cases he has worked on with students?" the Chicago Tribune asked in an April editorial. "That question will linger at least until prosecutors and McKinney's lawyers resolve what happened in his case.
"That day can't come soon enough."
Into this turmoil walked Alec Klein, an 18-year newspaper veteran and former Washington Post investigative business reporter who had won a Gerald Loeb Award for an examination of AOL's takeover of Time Warner, taught at Georgetown University and American University and is the author of three books.
He's succeeding a figure with an impressive record of accomplishment who still has a legion of supporters lining up behind him.
"Protess is definitely a pioneer. What he has done is unbelievable," says Peter Gross, director of the University of Tennessee's School of Journalism and Electronic Media, which plans to launch an innocence project next year. "He's done the sort of stuff that could be the subject for a movie." Protess was among a small group of educators and journalists whom Gross invited to Tennessee in July to advise him on the project.
Famed defense lawyer Barry Scheck, cofounder and codirector of the Innocence Project affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York City, is also a Protess cheerleader. "David was a trailblazer," says Scheck, who first gained national attention as a member of the O.J. Simpson "dream team" of defense lawyers.
Northwestern's Web site declares that "Protess and his journalism students have uncovered evidence that freed 11 innocent men, five of them from death row."(Protess says the number rose to 12 in March when Eric Caine was released after spending 25 years in prison for a double murder he did not commit.) Scheck notes with admiration that Protess was "able to do all this with the help of journalism students."
The eight students who enrolled in the class last March were so incensed that Protess was out that they signed a petition supporting the innocence project founder and threatening to drop the class. "I was devastated," says Jared Hoffman, who had previously taken the class with Protess and signed up for what he assumed would be a second round with him. "I didn't know what I was getting with Alec Klein," Hoffman says. "Everybody wanted Protess you know, he's David Protess." Though the students said they had no issues with Protess' successor, Klein says the petition left him wondering whether any students would show up for his class.
The anxiety didn't end until six of the eight students including Hoffman, who graduated in June walked into the classroom in March. "We have a class," Klein wrote in a note he passed to Sergio Serritella, a private investigator who assists the students in investigations. While nervously waiting for the students to arrive, Klein says he told Serritella, "There are not many times in your life when you have to prove yourself, when you're given an opportunity to prove yourself this is one of them."
The students also knew they were operating under a microscope. "We all felt pressure to prove ourselves, to hit a home run," says Monica Kim, who graduated from Medill in June after taking Klein's 10-week class. "We showed we were still capable of producing something noteworthy and something valuable to the community," she adds, referring to the Watkins investigation.
Fellow alum Lara Takenaga agrees. "The media firestorm changed the reputation" of the innocence project, she says. "The reputation will be back very soon."
Protess and Klein say they have nothing against each other, though it's obvious there is little love lost between the two. Klein seldom uses Protess' name, instead referring to him as "the previous professor," and frequently points to how he's doing things differently. Protess says he was planning to retire from the innocence project at the end of the 2011-12 school year and launch a new initiative. He says he was eyeing a potential successor, quickly adding that Klein was not his pick.
While they may not talk much to each other, there is no doubt that Klein as well as his colleagues at innocence projects elsewhere learned an important lesson from Protess: Attaching an exoneration program to a journalism school is not enough to maintain a journalist's privilege in court. That privilege, which varies from state to state, is likely to be lost when a program provides information to attorneys representing people the students are trying to exonerate.
In an August hearing, prosecutors argued that by sharing documents with defense lawyers, Protess' students had lost the privilege granted to reporters by Illinois' shield law. During the hearing, Assistant State's Attorney Celeste Stack disclosed that Protess recently found a binder containing 98 pages of documents from the McKinney investigation, even though Northwestern officials had said they had turned over all the relevant evidence, according to the Chicago Tribune's account of the hearing. Included among the newly discovered documents was a memo detailing a meeting between Protess' students and McKinney's lawyers, Stack said.
Scheck says there is a clear boundary that separates what a journalist student or professional can and can't do in order to keep reporter's privilege. "Legally, it's not too hard of a line to draw," Scheck says. "Once you turn those notes over, that's a problem."
Rob Warden, executive director of Northwestern's Center on Wrongful Convictions, agrees. "If they want to keep the reporter's privilege, they shouldn't be sharing information with one side that they're not sharing with the other," says Warden, a former reporter who worked with Protess on exoneration investigations before the Medill Innocence Project was launched.
Klein vows that the problem will not arise on his watch. "We are not providing information to any attorney on either side," he says. Klein says the innocence project has not contacted Warden's group or the State's Attorney's Office since the article about the Watkins investigation ran, a statement confirmed by Warden and Daly. Klein says his students may contact prosecutors to find out whether their probe has sparked a reopening of the Watkins case. However, like a professional reporter doing a follow-up story, the students will ask whether their work prompted an investigation but they will not be allowed to lobby the authorities to launch a probe. (The State's Attorney's Office has not reopened the Watkins case, Daly told me).
Protess, on the other hand, would often lobby prosecutors to reopen a case involving a prisoner he thought was wrongfully imprisoned, though he stresses that the push would not start until after the students had completed their investigation. "I'm an unapologetic advocate," Protess says. "These are campaigns. You don't just spring an innocent person by wishing it so."
Maurice Possley, a former Chicago Tribune reporter who wrote a freelance story about the McKinney case for the Chicago Sun-Times, praises the efforts of Protess and the students. "They did great work," Possley says. "You got people whose lives were saved because of the work of the students." Still, Possley says he's a little uneasy about Protess' open advocacy, an attitude that he says was memorialized when it was caught on camera in 1999 after Anthony Porter was freed from death row. Upon his release, Porter ran to Protess and the men hugged, with Porter lifting the professor in the process. That photo was still on the Medill Innocence Project Web site in August.
"It's important to always keep yourself at arm's length," says Possley, who did wrongful conviction stories while at the Tribune. "I did get a sense that what was happening over there was advocacy."
For his part, Protess questions how a reporter could not show emotion following a lengthy investigation that helps release an innocent man. "When that prisoner goes free someday it would require us to suspend our humanity not to feel tremendous exhilaration," Protess says. "We're human beings first before we're journalists. Our journalism is premised on our humanity."
The Midwestern Innocence Project at the University of Missouri embraces advocacy, says Weinberg, who notes that the journalism students work with law students on investigations. The project is the result of a partnership between the journalism and law schools, he says.
"I chose a long time ago to cross the line in part of my life and to help students cross that line," says Weinberg, whose students do not write stories about the investigations. "If they become involved in one of the field investigations, they are part of a law team, and things like attorney-client privilege kick in." The students learn investigative reporting techniques that could serve them well in media careers, Weinberg says. "I'm not teaching them anything different, but it's definitely a different mindset. They're advocates."
Another big shift at Medill is that Klein now insists that students write a story after each investigation clearly laying out what they discovered and posting many of the documents unearthed during the probe. Under Protess, the students wrote stories only occasionally and those did not have the depth or transparency of the Watkins story posted by Klein's students in June. "We are not investigators, we are investigative journalists," Klein says. Adds Lavine, "Often in the past, what the innocence project turned up was taken by professional media and published. We should have published it ourselves."
One key element of the class under Protess that will remain, however, is having the students leave the comfort of the serene suburban campus and sending them into the inner city to investigate. Students who worked on the Watkins investigation, like their predecessors at the Medill Innocence Project, praise the experience as the highlight of their college career. "I was surprised at how much I loved it," says Takenaga, 22, who graduated in June. In the Watkins investigation, Takenaga and other students found a key witness on the street near the murder scene selling cigarettes. After the students confirmed her identity she went by two different names they interviewed her repeatedly on that street and at a nearby White Castle, a fast-food restaurant that several students say served as a neighborhood gathering spot. "I had never spoken to an addict before, and here I got to speak to one in a neighborhood I never had been in before," Takenaga says.
Though Protess is out of Northwestern, his shadow will likely remain on the campus for some time to come. For one thing, he has set up a new shop in Chicago's Loop, roughly 45 minutes on the El from the Northwestern campus. He is still doing the same type of work as the founder of the new Chicago Innocence Project, which has already posted a story that argues Stanley Wrice, a Chicago man serving a 100-year sentence for rape and deviant sexual assault, is innocent. That investigation was started in Protess' Northwestern class before he was removed from teaching and completed with the help of student volunteers from Northwestern. Protess says he hopes to continue attracting volunteers from Northwestern and other area schools to assist in his work.
Protess has a twist to gain attention for the Chicago Innocence Project: The new program will train some people who were exonerated after being wrongfully convicted in the art of investigation so they can help free others in the same situation. "I'll begin by working with exonerees who are looking to give back to the prisoners they left behind," Protess says. "I'm going to train them in the same way I train students." Lending his name to the Chicago Innocence Project is Rubin "Hurricane" Carter, perhaps the best known person ever to be exonerated after a conviction. Carter, a boxer who had been a contender for the middleweight championship, was convicted of a 1966 triple homicide but was cleared in 1985.
Protess and Klein agree there is more than enough room for the two exoneration programs to operate in the Chicago area. And Scheck says there are plenty of cases throughout the country for reporters and journalism students to investigate. Though the majority of exoneration projects are volunteer or linked to law schools, Scheck whose group trademarked the phrase Innocence Project says reporters should be in the mix as well.
"These kind of stories are vintage and classical avenues for journalists to pursue. Freeing a man wrongly convicted it's a great American tradition," says Scheck, bringing up a 1948 movie in which James Stewart played a Chicago reporter who did just that. "Watch 'Call Northside 777' it's one of my favorite movies." ###