Judge: Medill students acting as investigators, not protected by Ill. shield law

Ruling notes student reporters are generally covered

ILLINOIS — More than 500 emails chronicling the efforts of a Northwestern University journalism professor and his students to free a man serving a life sentence are not covered under Illinois’ shield law, a judge ruled Wednesday.

After a two-year legal dispute, Cook County Judge Diane Cannon ruled that Medill School of Journalism students and former Innocence Project instructor David Protess were “acting as investigators in a criminal proceeding,” not journalists, when their class delved into the case of Anthony McKinney.

Cannon ruled that the Medill students were working under the direction of McKinney’s lawyers while gathering evidence and conducting interviews and were not entitled to reporter’s privilege protection, The Chicago Tribune reported.

Northwestern spokesman Alan Cubbage said the school was pleased overall with what the judgment meant for student journalism.

“Basically, we’re encouraged by the judge’s ruling that the Illinois Reporter’s Privilege Act applies to student journalists, which she ruled, but said it did not apply in this particular case because of the facts of 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 McKinney case for two years with absolutely no involvement by defense lawyers,” he said via email. “Every major reporting development ... happened before McKinney even had a lawyer.”

After McKinney gained legal representation, all reporting decisions were still made within the Medill team, Protess added.

The Student Press Law Center, along with three other organizations, filed a friend-of-the-court brief in January 2010 in support of the students. But SPLC Executive Director Frank LoMonte said Wednesday’s ruling likely would not be overly detrimental to student journalists.

“If the basis of the order is collaboration between journalists and the legal defense team, then it shouldn’t have much effect on traditional journalists,” LoMonte said.

McKinney was convicted and jailed in 1978 for shooting a security guard in Harvey, Ill. The students, as part of their Innocence Project class, took up an investigation into his conviction in 2003.

Through their reporting, students unearthed evidence that convinced them of McKinney’s innocence; that evidence included recantations of state witnesses and the confession of an alternative suspect, Protess said. They then shared the information with the Northwestern University School of Law’s Center on Wrongful Convictions, helping to win a new court hearing for McKinney.

Assistant state attorneys subpoenaed Protess on May 20, 2009 to appear in court and provide interviews, electronic communications, notes, course syllabi, grading criteria and receipts for expenses incurred by students during their investigation.

Attorneys for Protess and the students fought to quash the subpoena on the grounds that the students are protected under the reporter’s privilege law and the Family Educational Rights and Privacy Act (FERPA).

The university did turn over student communications exchanged with the Center on Wrongful Convictions, but it had refrained from releasing internal emails and memos.

Protess said the real issue at hand is that an innocent man has been in prison for 33 years. But, he said, he sees large consequences for reporters’ rights as well.

“If the judge’s ruling becomes precedent, it will mean that journalists who advocate for a cause will be deprived of their basic legal rights,” Protess said.

The ruling is unfortunate for the program, but the “one-of-a-kind” project is not directly comparable to a traditional student newsroom endeavor, LoMonte said.

Sharing newsgathering information with one side of a legal dispute and not the other is likely to become an issue, he said.

“It’s not unheard of that journalists share information with sources,” LoMonte said, adding that there is a difference in exchanging information and handing over documents to a defense team.

A written ruling is forthcoming. The state attorney’s office, which is prosecuting the case, did not return a call for comment by press time.

Cannon granted a 10-day stay on her ruling. Northwestern attorneys have not yet decided whether to file an appeal, Cubbage said.

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