The fine line between journalism and advocacy

AP Photo by M. Spencer Green

In this 2009 photo, then Northwestern University professor David Protess, founder of the Medill Innocence Project, talks with journalism students about reporting.

When professor Bill Moushey conducts class each semester at the Innocence Institute of Point Park University, the first day always begins the same way: “The first thing I give my students is the Society of Professional Journalists Code of Ethics and say, ‘these are the rules. We follow the society of SPJ Code of Ethics – all of it.”

The code is straight forward, featuring such admonitions as “Seek the truth and report it,” and “Act independently.”

Yet the ethics of Moushey’s program — which uses investigative reporting skills to re-examine a case, often involving a convicted prisoner on death row — were called into question in September 2010 by a witness in a Pennsylvania criminal case that swiftly led to a restraining order being slapped on the Innocence Institute after Moushey and two students visited the witness’ church and former landlord.

Moushey said a woman who had a drug problem and admitted to prostitution was the source of the harassment complaint.

“We do not act as anything other than reporters,” Moushey said. “They put a restraining order on us, accusing us of being an activist organization.” After a 30-minute appearance in court, the order was promptly dropped without incident. Still, the brief episode forced Moushey to squeeze enough money out of the Innocence Institute’s shoestring budget to hire a lawyer.

The Allegheny County district attorney’s rush to judgment was cause for concern for Moushey, who believes his tale is not an isolated incident. Since the Innocence Institute draws a distinct line between journalism and activism, he said he was left wondering if innocence projects were becoming a new target for embattled prosecutors who are looking for ways to combat embarrassing overturned convictions.

In light of the well-publicized legal battle at the Medill Innocence Project at Northwestern University, about 30 minutes outside of Chicago, the timing of the Innocence Institute’s legal issues could be seen as suspect.

“If you put it on a timeline, you don’t need a weatherman to tell which way the wind is blowing,” Moushey said, alluding to a Bob Dylan lyric.

A Northwestern adventure

AP Photo by Charles Rex Arbogast

Cook County State’s Attorney Anita Alvarez.

Former Northwestern University journalism professor David Protess started the Medill Innocence Project in 1999, three years after he and his students helped exonerate four men of a 1978 murder they didn’t commit. The overturned convictions kept rolling in and led to the suspension of executions in Illinois in 2000. In 2003, outgoing Gov. George Ryan commuted all death sentences, and in March of 2011 Illinois Gov. Pat Quinn signed legislation that permanently abolished the death penalty.

These events helped Protess and Medill reach near-legendary status in the fields of journalism and law, and helped pave the way for other innocence projects to pop up around the country.

Meanwhile, however, what Protess calls “the perfect storm” was brewing.

In 2003 Medill students began investigating the case of Anthony McKinney, a man convicted of murdering a security guard with a shotgun in 1978. During a multi-year investigation, students said they turned up new evidence including alibi witnesses and recanted testimony. State’s Attorney Anita Alvarez wasn’t impressed. Alvarez, who was elected in late 2009, had seen the effects of the Medill Innocence Project while working in the state’s attorney’s office for more than two decades. After examining the McKinney case, Alvarez accused Medill students of unethical practices such as paying for interviews and flirting with witnesses, leading her to subpoena all student materials related to the investigation – emails, notes, memos, grades and even grading criteria.

Protess was stunned. “It is not the job of the student journalists to do the reporting for the government,” he said.

Just as the Innocence Institute would experience a few months later, Alvarez asserted that Medill students were not journalists but activists, and therefore not covered by the Illinois shield law. Alvarez based her claim on the fact that Medill students had shared information with Northwestern Law students at the Center on Wrongful Convictions, who had taken on McKinney’s case. While much disagreement still exists over exactly what information was shared, Protess says one thing is certain: the records sought by Alvarez all pre-dated McKinney having legal counsel.

“Every major investigative reporting finding in the McKinney case happened in the first two years the students worked on the project – from 2003 to 2005. During that time McKinney didn’t even have a lawyer,” Protess said. “I don’t understand why this has escaped journalists, and more importantly, the judge.”

In September, Cook County Judge Diane Cannon ruled the students had acted as “investigators in a criminal proceeding” when they collaborated with Northwestern Law students. The request for student grades had been dropped, but Cannon ordered Northwestern to release all other documents to prosecutors. Protess insists the subpoena did nothing but undermine the rights of journalists. “[The documents] had nothing to do with Anthony McKinney’s guilt or innocence, which is the only question before the court,” he said.

Protess does not dance around what he perceives to be motives behind the legal battles. “Anita Alvarez has consistently fought efforts to expose wrongful convictions, this is just the most recent effort,” he said. “I think to some extent it’s also payback for years of my journalism students embarrassing them.”

The work of Medill students has also cost the state a significant amount of money, including a $36 million civil suit won by the “Ford Heights Four,” the men Protess helped free in 1996 after spending a combined 63 years behind bars. Repeated attempts to reach Alvarez for comment were unsuccessful, but she told Chicago Magazine “to suggest that it’s a vendetta is false, and it’s misleading.”

Alvarez has since issued another subpoena against Northwestern in the case of Armando Serrano, who was convicted in the 1993 slaying of Rodrigo Vargas. Alvarez’s office is again accusing Northwestern students of unscrupulous practices leading to recanted testimony, but a ruling has not yet been issued.

“It clearly followed the McKinney subpoena, but I don’t think it’s a reflection of what Judge Cannon ordered,” Protess said. “It’s a continued effort on the part of the state’s attorney’s office to harass journalism students who are trying to bring a matter of great public importance to their attention. They don’t want to hear it.”

What rules?

The general opinion among innocence projects seems to be that if the rules are followed, the Medill situation will not be repeated.

There’s just one problem: virtually none of them agree on the rules. At journalism schools, all innocence projects were not created equal. In the words of Protess, “There’s no one way that journalists do innocence projects. It ranges from complete autonomy to active collaboration.”

On one end of the spectrum is Point Park, which maintains a strong wall between itself and the rest of the world. The program either shares everything with everyone, or it shares nothing. “If we find information, which we always do, that impacts cases, we used to turn it over to both sides. Now we just put it on our website and let people know that it’s there,” Moushey said. “We don’t work for anyone.”

Neither does Protess.

Amid accusations that Protess had tampered with email and misled Northwestern in the wake of the subpoena, the university severed ties with him in early 2011. Protess has since started the Chicago Innocence Project, an idea he said he had already been working on for several years. The project is structured similarly to Medill, only Protess pulls students, who still receive class credit, from several area schools.

Alec Klein, who took over at Medill after Protess’ departure, speaks proudly of the changes instituted since his arrival, including a requirement to write stories. Klein, a former investigative reporter for The Washington Post, said he still remembers the reaction of the students in his first class when he said they would have to write a story about their findings.

“I don’t think they were that happy about it, to be honest with you,” Klein said with a laugh. “I said, ‘We’re not investigators, we’re investigative reporters. As investigative journalists, we write stories.” Klein’s first class wrote a story and two sidebars totaling about 10,000 words on the case of Donald Watkins, who in 2007 was sentenced to 56 years in prison for a shooting death.

Although students were intricately involved, stories were not a hallmark of Protess’ program at Medill. In the case of Anthony McKinney, the only two published stories were written by Protess and Chicago Sun-Times reporter Maurice Possley, a fact noted by Cannon when she made her ruling. Protess said the publication argument does not hold water. “There is nothing in the law that says the journalist has to have a byline in order be covered by the shield law,” he said.

Moushey, who credits Protess with giving him the idea to start an innocence project, maintains that if journalists to their job, society will do the rest. “My attitude is that if it’s a bad case, you write the story and let the system act. And the system does act,” he said. “We seek the truth, and sometimes the truth sets people free.”

One thing Medill hasn’t changed under Klein is its use of a private investigator, albeit in a lesser role than under Protess. Perhaps the equivalent of an innocence project “purist,” Moushey adamantly opposes the practice.

“The reason why I’m running an innocence project is that I’m trying to teach journalism students how to conduct investigations,” Moushey said. “Having a private investigator in my view would disrupt the learning process.” Moushey also pointed out that private investigators typically would not be covered under a shield law.

Steve Weinberg, who for three years ran the journalism arm of the Midwestern Innocence Project in conjunction with the University of Missouri-Kansas City (UMKC) School of Law, said private investigators were rarely used – and when they were it was under the supervision of a lawyer. Since Weinberg’s retirement in 2010, the Missouri School of Journalism ended its formal classroom affiliation with the Midwestern Innocence Project.

Ellen Suni, dean of UMKC School of Law, said some Missouri journalism students come to work with the project independently, and are protected by attorney-client privilege. “In order to work with the project, they had to agree that they were working under the supervision of the lawyers and could not write anything,” she said. “It’s more for learning purposes.”

The same setup exists at the University of Montana, where Jessie McQuillan is the executive director of the Montana Innocence Project. She said the program incorporates four disciplines at the university, including law, journalism, paralegal and criminology.

Although Montana has a shield law, McQuillan said they do not expect any source protection from it since they do not publish their findings. “As they work through these cases they are learning a lot about our criminal justice system and how to investigate and review innocence claims,” she said. “We treat our journalism students like our other students, as investigators who are working under the supervision of attorneys.”

Moushey said working for an attorney is not journalism.

Moving forward

As some journalism schools shift positions and tweak operating practices, the Innocence Project at Brandeis University decided to re-evaluate its entire program. A representative for the Schuster Institute for Investigative Reporting at Brandeis declined comment for this story, explaining in an email that they are in the process of “thinking through” the way the project is conducted. When asked if the Medill ruling has changed the way the Innocence Institute operates, Moushey said it has had a slight impact.

“We no longer provide anything to anybody. We just put it all online,” he said. “Prior to that, if we gave something to the defense, we gave it to the prosecutors.” Moushey said legal teams have been known to request information, and each is firmly turned away. He doesn’t mince words with his students either, instructing them, “Don’t you dare do anything that you wouldn’t be willing to put your hand up and swear to tell the truth about.”

The changes at Medill under Klein include changing the mission statement to expressly state a commitment to transparency. Klein also said students no longer engage in surveillance or undercover work.

“I think we can teach students to be great journalists by doing things the right way — without those kinds of methods,” Klein said.

McQuillan maintains that although the Montana Innocence Project operates under the supervision of attorneys, it can still provide great benefit to aspiring journalists by teaching students how to effectively investigate the justice system. “They learn a lot,” she said. “They don’t walk away with clips, but they learn those investigative skills.”

McQuillan said while the problems at Medill have not directly affected her program, she is motivated to monitor the developments at other innocence projects. “We’re certainly interested in the issues of journalism students nationwide and how they’re the subject of court proceedings,” she said.

For Protess, he says it’s business as usual at the Chicago Innocence Project. “It hasn’t affected me,” he said. “We don’t do things differently as a result of the subpoena because to overreact to a subpoena is to, in effect, cave to what prosecutors would like to have happen. What happened at Northwestern was a perfect storm and not likely to occur repeatedly.”

Still, Protess believes the tale of Northwestern provides a lesson for all innocence projects. “If there is one clear lesson it’s that we have to be cautious about the rules regarding a waiver (of the shield law) and be cautious about protecting documents that shouldn’t leave a journalism program – whether that’s a newsroom or a program on a college campus,” he said.

“That’s a simple fix. We don’t have to change the way we do things fundamentally in response to this. We just have to be a little bit more careful.”