Cook County Criminal Courthouse
Post-Exchange/JAMIE LOO

Student journalists protection still unanswered

Arguments over subpoena continue in light of new evidence.

By Jamie Loo, First Amendment reporter

June 25, 2010

CHICAGO—Evidence that may be re-introduced in the Anthony McKinney case has stalled the question of whether student journalists qualify under the Illinois Reporter’s Act.

The court has granted McKinney’s attorneys three months to find other documents students in Northwestern University’s Medill Innocence Project gave to them in 2005 and 2006.

These documents are important in determining whether the Cook County state’s attorney’s subpoena is still relevant because the state would be entitled to anything McKinney’s attorneys have under the discovery process in the post-conviction proceedings. The subpoena is for students’ notes, interviews, grades, class syllabus, and other materials.

The next status hearing will be in late September.

The tangle up in subpoenas and evidence in the post-conviction petitions, which have lasted more than a year, means that the court still hasn’t formally addressed the status of student journalists under the state shield law or McKinney’s innocence claim.

It has captured the attention of local and national news organizations because it could set precedent for how journalists are defined. Eighteen mainstream news organizations and professional journalism associations submitted a court brief in January supporting the idea that student journalists have the same rights as professional reporters and are protected under the Illinois Reporter’s Act.

Northwestern school of journalism dean John Lavine said Thursday that he feels the public, not the government, has the right to decide who qualifies as a journalist. Lavine said the public chooses who to trust, and that they read many non-mainstream media news Web sites every day. Society is enriched by having more news sources, he said, and a decision in favor of the state could create a chilling effect on anyone who publishes news to the Web whether they are journalists or citizens reporting on town meetings on a blog. Granting the subpoena will not only affect student journalists but college students across all disciplines in Illinois who regularly gather information in their communities for research purposes, Lavine said. He said the state should be focusing on whether McKinney is innocent or guilty. McKinney has been in prison since 1978 for the murder of Donald Lundahl in Harvey, Ill.

The state has maintained that students acted as investigators and not reporters when they collected information on the McKinney case. The information gathering was geared toward exoneration and not for news reporting, the state claims, because the findings didn’t generate a news report and none of the students subpoenaed wrote a story about the case. The information has been published to the Medill Innocence Project Website and has been used for stories by the mainstream media which credit the work by students. The state feels that because the students brought new information to light in the case the state should have the chance “to fully evaluate all of the evidence submitted on a petition for post-conviction relief,” according to court documents.

Although lawyers in the case agree that reporter’s privilege was waived when some materials were shared with McKinney’s attorneys the actual content is unknown. Some of the copies of students’ journals, memos and binders presented to the Center on Wrongful Convictions in 2005 and 2006 have potentially been destroyed.

Karen Daniel, McKinney’s attorney, told Cook County Circuit Court Judge Diane Cannon on Thursday that they kept documents they thought would be pertinent in his case at the time and discarded the rest. Daniel speculated that some of the material may have been homework assignments. She asked the judge for more time so that investigators in her office can check their files, attempt to recover copies of destroyed documents and contact former students. Nine teams of students have been involved in investigating McKinney’s case since 2003.

Cannon said in court that she is losing patience with Daniel and McKinney’s attorneys because they don’t know the content of these documents and whether they are even relevant to the case.

“I can’t even fathom what’s going on,” Cannon said.

Richard O’Brien, lead attorney for professor David Protess and the student journalists, said in court that they have already turned over all published materials to the state and Daniel. Following the hearing Protess said he cannot comment on the documents Daniel is referring to since the content is unknown at this time.

On Tuesday, McKinney’s lawyers filed a document with the court to withdraw their support of Northwestern’s request to drop the subpoena.

This motion ties directly into McKinney’s innocence case itself. The testimony of Anthony “Tony” Drake was originally part of the post-conviction petition but McKinney’s attorneys filed an amended petition in February which left out Drake’s testimony along with two other witnesses. The petition stated that without this testimony the state’s attorney’s request for students’ work, which included an interview with Drake, was unnecessary.

But Daniel now anticipates that Drake will be part of the case to exonerate McKinney based on new information obtained over the past month. A witness, Jerome Phillips, has told case investigators from Daniel’s office that Drake was present at the crime scene, McKinney wasn’t there when Lundahl was killed, and that he knows who committed the murder. Phillips refused to identify the killer to case investigators but stated that he would submit to a court deposition.

Daniel is now asking the court to restore portions of the original post-conviction paperwork and to order a court deposition for Phillips.