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The Innocence Project Tries to Duck Subpoena



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The Medill School of Journalism (disclosure: I’m an alum) is fighting Cook County prosecutors over a case the school’s Innocence Project handled:

The Cook County state’s attorney subpoenaed the students’ grades, notes and recordings of witness interviews, the class syllabus and even e-mails they sent to each other and to professor David Protess of the university’s Medill School of Journalism.

Northwestern has turned over documents related to on-the-record interviews with witnesses that students conducted, as well as copies of audio and videotapes, Protess said.

But the school is fighting the effort to get grades and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews not conducted on the record, or where witnesses weren’t willing to be recorded.

I’m not sure the syllabus, grading criteria, and final grades are relevant. I’m skeptical the excuse that “students might have been pressured to find evidence that McKinney was innocent or else they would get poor grades in the class” — why not evaluate the evidence itself, much of which was recorded live, rather than the process by which it was collected?

But prosecutors probably are entitled to the notes on the interviews, and to e-mails that discuss the case. Illinois has a “shield” law for journalists, but the Innocence Project, while run in this case from a journalism school, is pretty clearly activist, not journalistic, in nature (at some universities, it’s run out of the law or criminal-justice school). The point of the Medill Innocence Project is, in its own words, “to expose and remedy wrongdoing by the criminal justice system.”

Medill’s dean can point out that the students “took reporting to the nth degree,” but under Illinois law, you have to report for publication to be a reporter. These folks report, overwhelmingly at least, for the purpose of exonerating the wrongfully convicted. In this particular case, they “took their findings to the Center on Wrongful Convictions at the Northwestern law school’s Bluhm Legal Clinic,” according to the story linked above. Further, even if the students are journalists, under Illinois law the shield does not apply if the information is essential to the public interest and isn’t available elsewhere.

If anything, the debate about whether these students count as journalists helps to demonstrate the problems with shield laws. The government has no business deciding who is and who is not a journalist, and then giving special privileges based on the distinction.

Now, I’d respect the folks in the Innocence Project if they, out of respect for the promises they made to their sources, refused to turn over the documents and went to jail. I’m just unimpressed by their request for the law to treat them differently than it treats everyone else.



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