Innocence Project case turns on ‘who’s a journalist?’

Thursday, September 8, 2011

Local prosecutors in Chicago are determined to add legal weight to the ironic adage that “no good deed goes unpunished.”

A Cook County, Ill., judge ruled yesterday that prosecutors should be given more than 500 e-mails sent by Northwestern University journalism students to their professor overseeing a special “Innocence Project” program that investigated a 1978 murder conviction.

The e-mails were sent between former Northwestern professor David Protess and a small group of Medill School of Journalism students. Protess’ students over the years gained national attention by raising doubts about the outcomes of a number of murder trials that resulted in convictions.

There’s no question that those students did good work over time, uncovering errors or omissions made by police or prosecutors that helped courts later free the wrongfully convicted. The journalism students’ findings also played some role in persuading then-Gov. George Ryan in 2003 to commute the death sentences of everyone on the state’s death row. Illinois has since abolished the death penalty.

But at issue in this ruling was whether the students in this case were acting as journalists — who would be protected by Illinois law from disclosure of internal notes — or just working for lawyers for the convicted man.

Cook County Judge Diane Cannon said that the students were “acting as investigators in a criminal proceeding,” and as such, the Illinois shield law protecting journalists from court-ordered disclosures did not apply.

“In this case, the Medill students worked at the direction of Anthony McKinney’s attorneys, conducting interviews, gathering evidence,” Cannon said. “While a book may be written or an article published … the information is subject to the rules of discovery.”

Cannon got it partly right — private investigators working for defense lawyers are not journalists. But then, it would seem from the decision, the judge took it into her hands to define who is or is not a journalist.

Protess maintains that the students were acting as reporters, fulfilling the “watchdog” role of a free press. Medill lawyers had argued earlier in the two-year legal proceedings that advocacy journalism, though it may have a point of view, is still journalism.  In an e-mail reported by the Associated Press, Protess said after Cannon’s decision that “the facts show that my students investigated the McKinney case for two years with absolutely no involvement by defense lawyers.”

The AP story quoted Cook County Assistant State’s Attorney Celeste Stack as telling reporters outside court, “If the students had been working for a newspaper, there would have been no problem.”

Admittedly, it was easier for legal purposes to identify a “journalist” in the pre-Internet age:  Employment by a newspaper, magazine or radio television station usually settled the matter.  Freelance writers, documentary filmmakers and book authors would qualify when producing nonfiction accounts that touch on newsmakers or events.

But all of that was based on custom and common practice. Nothing in the First Amendment defines a “free press” in terms of the employers or medium involved or what kind of newsgathering techniques are used.

Consultation and the sharing of information, taking suggestions as to whom to interview, and even sharing results of those interviews may not be in every journalist’s “best practices” handbook. But the First Amendment doesn’t exclude any of that — and courts cannot “fill in the blanks” without intruding into newsgathering, and thus ultimately affecting the journalistic outcome.

Ironically, Judge Cannon ruled in June that students working for the Loyola University student newspaper were journalists, covered by the Illinois Reporter’s Privilege Act, in a case unrelated to the McKinney conviction. The decision was hailed by free-press advocates as the first in that state extending shield law protection to college journalists.

That June ruling is in keeping with the First Amendment — and for defining journalists by the work they do, not the company they keep.


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