By Matthew Walberg – Chicago Tribune (MCT)
Student journalists for Northwestern University’s Medill Innocence Project wore hidden tape recorders during an investigation into an alleged wrongful conviction, prosecutors told a Cook County judge Wednesday.
A copy of one of the recorded conversations, as well as student memoranda that referenced the use of eavesdropping devices, was contained in about 800 pages of documents recently turned over to prosecutors by the university and a private detective who works for the Innocence Project.
The state’s attorney’s office has been engaged in a long-running battle with the school and journalism professor David Protess to obtain all of the information gathered by students investigating the conviction of Anthony McKinney.
Northwestern students working under Protess’ supervision surreptitiously recorded their interview of Anthony Drake, the man they contend is responsible for the murder for which McKinney was convicted, Assistant State’s Attorney Celeste Stack said in court.
“During the couple of hours [Drake] was with the students, an eavesdropping device was in use,” Stack said.
An attorney for the private detective who works with the Innocence Project, however, said a legal opinion cleared the surreptitious recording as a protection for the students who were interviewing a convicted murderer on parole.
At Stack’s request, Judge Diane Gordon Cannon ordered that Northwestern preserve any original copies of recordings.
“I would put the parties on notice that a cell phone wire was used at least once by students with other witnesses,” Stack said.
In Illinois, it is illegal to record anyone without their knowledge or consent—without court authorization.
Stack later said it was unlikely any criminal charges would be filed over the recording of the Drake interview, since it occurred in 2004 and the statute of limitations has since expired. The cell phone recording occurred in Wisconsin, she said.
Attorney Charles Sklarsky, who is representing Northwestern, told the judge that the university will comply with the order to preserve any recordings, but he said that he does not believe the school has any copies of such recordings.
“The university will comply with the state’s attorney’s office in addressing any concerns they have about the methods that were used by students,” he said. “I can assure you that the university does not condone the use of eavesdropping devices in violation of any statute and that we will look into that.”
University spokesman Alan Cubbage, speaking after the hearing, echoed Sklarsky’s statement that illegal methods are not condoned by the school and said that officials are reviewing “what occurred and who was aware of what occurred at what time.”
He said neither the law school nor the university’s general counsel authorized any secret recordings of witnesses. He declined to comment on whether the officials were launching a probe of Protess or whether he may face discipline.
“That’s a personnel matter that the university would not discuss publicly,” Cubbage said.
In an interview last week, Protess confirmed the university hired former U.S. Attorney Anton Valukas and a second former federal prosecutor, Gabriel Fuentes — both of the law firm Jenner & Block — to conduct what he called a review of the Innocence Project.
“Terminology is very important,” said Protess, who indicated that the attorneys were not investigating him. “We received a courtesy letter from Jenner & Block a couple of weeks ago notifying us that they were [joining the case]. They asked for my cooperation in a review of our policies and procedures. I may be missing something, but there’s nothing here that indicates any sorts of problems are afoot other than to fix any problems that occurred during the McKinney investigation, which I welcome.”
Protess said the review was the first ever done of the Innocence Project and that the school has already made changes in the way it handles information gathered by students.
“I don’t think there were adequate procedures in place during the McKinney investigation to safeguard against our documents being distributed outside of Medill,” he said, adding that students may have shared information with the law school attorneys representing McKinney without his knowledge.
Protess said he was caught between his desire to ensure his students had every tool to conduct the McKinney investigation and his responsibility to make sure that only documents relevant to McKinney’s case were turned over to the law school.
“On my second responsibility, I did not adequately protect those documents,” he said. “I made a tradeoff for the education of my students, and I think that we now need policies and procedures that will ensure a balance between journalistic freedom and the security of our records.”
Protess said he has fought the state’s request to view all of the memos and notes taken by his students because they contain personal, potentially embarrassing information that is irrelevant to the McKinney case. He would not describe the nature of the information.
Neither Protess nor Sergio Serritella, a private detective who took part in many of the interviews, were present for today’s hearing, the latest in a year and a half-long scuffle over whether prosecutors are entitled to view reams of documents written and compiled by students in their investigation of McKinney, who is seeking a new trial.
Prosecutors have argued that the students waived journalistic privilege when they shared information with the school’s Center on Wrongful Convictions, which is representing McKinney.
The school initially fought the state’s request but in June reversed course and agreed to turn over documents after discovering that there were more items that had been shared with the center than originally thought.
Serritella’s attorney, Thomas Breen, said the secret recording of Drake was only done after the Innocence Project received a legal opinion that it was lawful to use the wire in Drake’s case in order to protect the students.
“There was an inference in court that this eavesdropping was unlawful, and I’m not sure that it was,” Breen said. “This tape was done because young students on their own put themselves in a very precarious situation when they were interviewing a convicted murderer on parole. I doubt very much that the students did this on their own. I think it was done by their superiors out of concern for their safety. It [the wire] was used one time. It was an exceptional, very dangerous mission these students were on.”