News Mon Oct 26 2009

Are Alvarez and Prosecutors Losing Their Focus?

By Sheila Burt

In case you missed last week's front page Chicago Tribune story, it looks like Cook County State's Attorney Anita Alvarez and prosecutors are making it hard for a possibly wrongfully convicted man to receive another trial.

Anthony McKinney has spent 31 years in prison for the 1978 shooting and death of a Harvey security officer. He was 18 at the time of the crime. But after more than three years of investigations, students at Northwestern University say they found new evidence that proves his innocence, including a videotaped interview with a key witness recanting the story he told police.

The case was brought to the Center on Wrongful Convictions at the Northwestern Law School's Bluhm Legal Clinic in 2006. And, according to the Trib article, one year ago, the clinic filed a petition on McKinney's behalf so he could receive a new hearing in the Circuit Court of Cook County. The state's attorney agreed that a hearing should be held though no date has been set. But here's the catch--it's one year later, and what is the state's attorney focusing on? Students' grades.

Reporter Jeff Long writes that the state's attorney has subpoenaed the students' grades, notes and recordings of witness interviews, the class syllabus, and emails sent between students and David Protess (pictured above), the Northwestern professor who started the Medill Innocence Project in 1999. Thus far, the project has uncovered evidence that helped free 11 innocent men, five of whom were on death row.

According to the Trib, Northwestern has "turned over documents related to on-the-record interviews with witnesses that students conducted, as well as copies of audio and videotapes...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and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews not conducted on the record, or where witnesses weren't willing to be recorded."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 don't think it's any of the state's business to know the state of mind of my students," Protess told the newspaper. "Prosecutors should be more concerned with the wrongful conviction of Anthony McKinney than with my students' grades."

The New York Times picked up the story on Saturday, and the Tribune also weighed in on Wednesday with a nice editorial:

Prosecutors argue that they need all of the information to weigh the credibility of witnesses and the accounts they provided. In a brief filed with the court, prosecutors said they need the syllabus and grading criteria to learn, "for example, if students are told that they will get an A-plus if they get exculpatory evidence ..."

Say that again? Who's on trial here?

The prosecutors are overreaching, wielding this subpoena to send an unsubtle message to these students and other journalists: Back off. Don't make waves. You're embarrassing us.

The university rightly argues that the students and their professor are journalists and they have the protection of the Illinois Reporter's Privilege Act, which shields the newsgathering process.

We don't know if the information the students uncovered will stand up in court. The burden of proof is squarely on McKinney. His bid to reopen his case will rest with the credibility of witnesses whose stories have changed or who offer new testimony from events long ago. Prosecutors have every opportunity and all the tools they need to interview those witnesses and test their credibility. To find the truth.

An innocent man may be in jail. That's the focus here.

The students did their work. They have prompted a new look at an old case.

The prosecutors need to do theirs. That doesn't mean putting the students on trial.

If Alvarez won't back off, the court should quash the subpoena.