Other evidence presented in Anthony McKinney case

Latest court filings suggest student records are unnecessary in exoneration case.

By Jamie Loo, First Amendment reporter

February 12, 2010

CHICAGO—Attorneys for Anthony McKinney have dropped evidence that could potentially moot the subpoenas for Northwestern University student journalists’ notes and grades.

McKinney’s attorneys from Northwestern’s Center on Wrongful Convictions filed an amended post-conviction proceedings document which doesn’t include the allegations from Tony Drakes, Francis Drakes and Michael Lane. The three men, who were interviewed by students as part of David Protess’ investigative journalism class, claimed they were bribed for their testimony. The class is part of the Medill Innocence Project. McKinney has been incarcerated for 31 years for the murder of Donald Lundahl in Harvey, Ill. in 1978.

Without the testimony from Drakes, Drakes, and Lane as part of the case, McKinney’s attorneys say there is no reason for the state’s attorney’s office to pursue the students’ records. In the court filing attorneys say that Protess and his students are not parties in the case and therefore shouldn’t be subject to the evidence discovery process in a criminal case. Two other witnesses interviewed by the students who are still part of the case, Dennis Pettis and Robert McGruder, have supplied information to the state’s attorney’s office independent of the students’ work.

“I think today we’ve taken a major step in finally resolving this case,” Protess said on Wednesday.

Sally Daly, director of communications for the Cook County State’s Attorney’s Office, said this is an unusual development in this stage of the post-conviction proceedings process particularly since the statements from the three witnesses were previously the foundation of McKinney’s claim to innocence.

“Ultimately, it will be up to the judge in this case to determine whether Northwestern’s new amended petition will be admitted into the court proceedings so we would consider it premature at this time to speculate on any changes to our subpoena request,” Daly said.

The next hearing on the case is scheduled for early March.

Frequency of reporting

On Wednesday the state’s attorney’s office also filed a response to Protess’ attorneys and the friend of the court briefs that were filed by 18 news organizations last month. In their brief, the news organizations reaffirmed the argument made by Protess’ attorneys that student journalists have the same protections under the Illinois Reporter’s Act as mainstream news organizations.

But the state’s attorney’s office says in their response that McKinney’s attorneys and the news organizations are stretching the act’s definition of a reporter. The Illinois Reporter’s Act defines a reporter as “any person regularly engaged in the business of collecting, writing, or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.”

In their filing, the state says that the student journalists were not “regularly” collecting information for a news medium on a “full-time” or “part-time” basis. Using the school’s logic anyone who occasionally gathers and supplies information becomes a reporter, according to the state’s court filing.

McKinney’s attorneys and the news organizations cited the People v. Degorski case, which most people know as the Brown’s Chicken Massacre case, where a non-partisan watchdog group, the Better Government Association, qualified under the Reporter’s Act. The BGA published a report based on their investigation of the case.

The state said the judge’s opinion was unpublished and therefore cannot be cited as legal precedent. The BGA also has a record of regularly conducting investigations “with a news service coordinating the investigation.” The Medill Innocence Project has not published reports in news mediums and has not collaborated with the media on investigations, the state says, so its journalistic activities differ greatly from the BGA.

The Innocence Project attorneys have argued that students expect their work to be published on the Internet and possibly in conjunction with professional journalists. Protess has published articles on the Innocence Project’s Web site and according to their interpretation the law doesn’t require people to author the articles themselves.

News organizations support Northwestern University student journalists

Northwestern University, Anthony McKinney, and the state of Illinois

The case that has intertwined a convicted murderer’s quest for exoneration with a local college, student journalists and the state can become confusing at times. Here is a quick break down of the players involved:

Anthony McKinney: Anthony McKinney has been incarcerated for 31 years for the murder of Donald Lundahl in Harvey, Ill. in 1978. McKinney’s younger brother, Michael McKinney, brought the case to the Medill Innocence Project’s attention.

Northwestern University: The Center on Wrongful Convictions and the Medill Innocence Project are separate entities at the school.

The Medill Innocence Project is part of the university’s journalism program and professor David Protess serves as its director. Students use investigative journalism techniques to report on possible miscarriages of justice, particularly in death penalty or life without parole cases. The goal of the program is “to expose and remedy wrongdoing by the criminal justice system,” according to its Web site.

Protess and nine teams of students have been investigating the McKinney case since 2003. Protess and the students turned over some of their findings to the university’s Center on Wrongful Convictions in 2006. The Center took on McKinney’s case and filed its first court documents on his behalf in October 2008. The Cook County State’s Attorney’s Office subpoenaed Protess’ class syllabus, grades, student notes, and all of the witness interviews by the students in May 2009.

The Center on Wrongful Convictions investigates “possible wrongful convictions and represents imprisoned clients with claims of actual innocence,” according to their Web site. The center has lawyers and works with law students who are part of the university’s Bluhm Legal Clinic. The center has conducted research on systemic problems in the criminal justice system, works to raise awareness of wrongful convictions, and promotes system reform. The center also helps exonerated former prisoners transition back into society.

In October 2008, attorneys from the center filed a post-conviction petition in Cook County Circuit Court asking the court to vacate McKinney’s conviction or order a new trial.

Cook County State’s Attorney’s Office: The state’s attorney’s office is representing the state of Illinois in the case to determine whether McKinney’s conviction should be upheld or vacated. In May 2009, the state’s attorney subpoenaed the Innocence Project students’ notes, grades, interviews and other materials claiming that it is part of the discovery process in legal proceedings.