Chicago Prosecutors Investigate Innocence Project

Journalism and law students working for the Innocence Project investigate the cases of prisoners who may be falsely imprisoned. Students at Northwestern believe they have found proof of a convicted murderer's innocence. Cook Country prosecutors want to subpoena their work.

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

Across the country, journalism and law students team up to investigate cases of prisoners who may have been falsely convicted. The programs are broadly modeled on the Innocence Project, which specializes in DNA technology. But students also pore over court transcripts, conduct new interviews with witnesses, and reconsider other kinds of evidence. And in fact, dozens of convictions have been overturned. Now a group of students at Northwestern University's Medill School of Journalism in Chicago believes they've found proof of the innocence of a man in prison for three decades for murder.

But in a novel response, the Cook County state's attorney, Anita Alvarez, is putting the spotlight on the university and the students. She says they've taken on the role of investigators and therefore need to turn over their emails, all the notes they've compiled on the case, and their grades. Is this a far-reaching redefinition of innocence projects or prosecutors trampling the rights of journalists?

Later in the program, a deadly bomb kills senior members of Iran's revolutionary guard and exposes ethnic and religious splits in the Islamic republic.

But first, the challenge to the Innocence Project. If you've worked for that or a similar project as a student, what records are prosecutors entitled to? We would also like to hear from criminal prosecutors and defense attorneys. Give us a call, 800-989-8255. Email us talk@npr.org. You can also join the conversation on our Web site, that's at npr.org. Click on TALK OF THE NATION.

Constitutional law expert Jonathan Turley joins us here in Studio 3A. He teaches public interest law at George Washington University. Nice to have you back on the program…

Professor JONATHAN TURLEY (George Washington University): Thank you very much.

CONAN: And I have here a copy of the subpoena from the state's attorney. She was not able to appear on the show today. She had other business. But their argument is quote, "There simply are no exemptions that allow a university to investigate a murder case and then withhold new information it generated at the resulting post-conviction hearing. The law imposes a duty on all citizens to reveal relevant information in criminal matters," end quote. To that end, they've asked for all the notes, memoranda, reports and summaries created by the students, the professor's notes, instructions, grading criteria, and the syllabus, the students' grade for each quarter they worked on the case and any emails, payments, audio or videotapes created as a result of the case. This is a pretty broad subpoena.

Prof. TURLEY: Well, it's breathtaking how really the scope of the subpoena goes into everything they could possibly get on these students. Now, from the prosecutor's standpoint, they're saying that basically once you throw into play a question of a criminal conviction, the people of the state of Illinois have a right to see all the evidence. And judges may, in fact, be sympathetic with some of the things on the subpoena list, like the first one being notes, memoranda that might have additional evidence that goes to innocence and whether…

CONAN: Or guilt, for that matter, because the subpoena also says certainly justice requires an objective review of all evidence, not simply the evidence the school now feels is supportive of their version of events.

Prof. TURLEY: That's right. And I think that some judges will frankly be sympathetic. They will say we're trying to find out whether this person is guilty or innocent. You have sent people out there to gather information. We need to know not only what it is that you've gathered but we also have to know something about the investigators. Obviously the press and free speech advocates view this in a much darker way. I've never personally seen anything quite like this. I don't know of any other case where prosecutors delved this deeply into what is normally viewed as privileged material. Now, the problem is also going to be a test of the Illinois privilege given to reporters.

CONAN: The shield laws.

Prof. TURLEY: The shield law. And most states have shield laws. The federal system actually is behind the ball in that sense. They don't protect reporters the same way. But Section 8902 defines a reporter under the Illinois law. And it defines it as any person regularly engaged in the business of collecting, writing or editing news for publication. Is that a student? Is the student engaged in the business of collecting and publishing information? I would say yes, because if that's not the case, literally thousands of journalists who are working for excellent newspapers - college and university papers are serious papers that do serious work. But…

CONAN: Well, are these materials gathered and published in the student newspaper or are they just presented to the court?

Prof. TURLEY: That's the other problem. That is, even if they can establish that these are student journalists, the question is, what were they doing? Was it journalism or was it just standard investigation? These students gathered information and gave it to prosecutors. And the prosecutors are saying, you know, we see this all the time. You're called an investigator. And we have a right to see what you have.

CONAN: And that makes a degree of sense, but nevertheless, the other side is going to say - hey, hey, hey, wait a minute, you're asking for a reporter's notes.

Prof. TURLEY: That's right. And it creates an enormous chilling effect that's positively glacial. You're talking about one of the most successful programs in media and the law, the Innocence Project. You're also talking about prosecutors who, frankly, collectively in this office failed miserably in these cases. This is a very embarrassing area. These groups of students collectively…

CONAN: Wait, this is 30 years ago. Yes, embarrassing, but the people who were embarrassed are either in Florida or dead, presumably.

Prof. TURLEY: True, but prosecutors really reel from these cases. There's 11 cases in Illinois that have been shown to have been in question or invalid, the people have had their convictions reversed. That has an embarrassing effect upon prosecutors, it affects juries. And suffice it to say, many prosecutors are somewhat hostile towards these efforts. And when you look at the subpoena, what free speech advocates see, what free media advocates see, is hostility. What's the purpose…

CONAN: In other words, if you're going to mess with our office, we're going to mess with your office.

Prof. TURLEY: Yeah, and what's fascinating is usually in these cases you see a fight over a subpoena to get evidence of a crime. This is getting evidence of the motivation to investigate a crime. That's what makes it different. You know, the Supreme Court in a case called Zercher(ph) in 1978 created a very low bar for the searching of a student newspaper. That was the Stanford Daily.

CONAN: Mm-hmm.

Prof. TURLEY: And the court basically said that journalists generally are not given any particular protection from these types of searches. But those were searches looking into crimes. What's different here is they're saying, we want to know what your motivation was to say that we failed to do our work and convicted an innocent man.

CONAN: The grades, presumably, at least as I read the subpoena, are they want to know were students given an incentive to come to a certain conclusion that somebody was innocent by getting better grades if they came to that conclusion - if they - or rather, if they came to the opposite conclusion.

Prof. TURLEY: That's right. And I think what the prosecutors will say is that if this wasn't a university, it was an investigator, the first thing we would ask is, who's paying you? What are you getting for this work? And for students, that comes in the form of an academic benefit. But that really treats very lightly the protection that has been normally given academic projects like this. And so you're talking about a request here that seems to go not into whether the evidence is valid, but whether the people who collected it had the best motivations. And I think what these students are saying is, what does it matter? Why don't you talk to our witnesses, look at our videotapes - judge the evidence instead of trying to shoot the messenger.

CONAN: We're talking with Jonathan Turley, a professor of public interest law at George Washington University, an expert on Constitutional law. And we're talking about the Innocence Project and its ilk. If you have worked for one of these projects around the country, give us a call, tell us about your experience. Or if you're a prosecutor or defense attorney, we'd like to hear from you as well, 800-989-8255. Email us, talk@npr.org. And James is on the line from San Antonio.

JAMES (Caller): Hi, this is James calling from San Antonio. I'm a criminal defense attorney down here and my inclination in hearing this is absolutely don't force these kids to hand over anything. And my main reason in thinking this is the chilling effect. I had similar situations come up here where I think court appointments on felony cases in three different counties and the district judges don't want to give us any money for investigators and we end up having to investigate the cases ourselves.

Well, what's been happening recently is the attorney general's office along with some of the counties here have been indicting attorneys for tampering with witnesses in a, quote, unquote, "tampering with witnesses" because they're out investigating cases themselves because they're not getting any money for investigators to do it. And the…

CONAN: (Unintelligible) never got indicted for that.

(Soundbite of laughter)

JAMES: Yeah. And so, yeah, exactly. And, you know, to me it's the chilling effect. We have to look over our shoulders when we're investigating a case. We have to watch out for, you know, if we say the wrong things to a potential witness, how it may be viewed by the D.A.'s office and the A.G.'s office. And, to me, that's just - it's unconscionable. I mean, I can't - we have to be able to defend out client. And this is no different.

CONAN: If, in the course of your investigation, James, you ran across a witness who said, yes, the accuse, Mr. Jones, I saw him do it. Would you be required to turn that over to prosecutors?

JAMES: Absolutely not.

(Soundbite of laughter)

JAMES: You know, I mean, you know, obviously I wouldn't be calling in to the witness, but I'm not going to hand him (unintelligible) either, you know?

CONAN: So that kind of…

JAMES: No shit. I mean, I got (unintelligible) for my client and that would, you know, kind of get in the way of that, you know?

CONAN: Yeah. But the other side, the prosecution, if they find something that supports your client's case, that's called exculpatory evidence and they're required to give that over to you, right?

JAMES: Absolutely. And Brady v. Maryland, I mean, they have to do that. But, you know, there's a little bit of a difference here in the government's role in prosecuting a case. You know, they're supposed to be seeking justice, we're supposed to be advocating for our client. That's not exactly the same thing. In fact, it's very different.

CONAN: And so, you would see these innocence project type organizations as effectively being on the defense side?

JAMES: Well, yeah. I mean, you know, at a minimum, I mean, look, if they're coming up with information that can help, you know, prove the innocence of somebody, I think that they shouldn't be, you know, hounded into giving up information that can ultimately create a chilling effect that could, you know, to - in the future, where somebody who could be in the same situation and it's exculpatory evidence can be sound, well, this could prevent that person from being found innocent because of the chilling effect that's created. And I'm absolutely against the government going in and messing with these kids.

CONAN: All right, James, thanks very much for the call. Appreciate it.

JAMES: Thank you.

CONAN: And is that description correct, as far as you know, Jon?

Prof. TURLEY: Well, certainly Brady requires the government to turnover information. It is a one-way street. You do have different functions, he's quite right in that. What's different here is that you have a project that's being handled by a journalism school, one of the very best in the world. But there is a question of whether this would have been more protected to be housed in a law school, where they could claim some type of legal privilege which has always been more robust than a journalistic privilege.

CONAN: And you think that in a law department, law school, they might say, well, we're only gathering evidence for this guy, we're not required to turnover evidence that might his guilt. Nevertheless, journalists are supposed to find the truth just like the prosecution.

Prof. TURLEY: That's right. I actually went to (unintelligible) law school and they have a wonderful clinical program and they, in fact, would resist any effort to get their privilege to documents. Courts are very protective over that. What people don't understand is that the First Amendment puts a huge amount of burden on reporters that protect us in a lot of ways, but it offers few protections to them.

CONAN: Stay with us, if you would, Jonathan Turley of George Washington University. Coming up, Barry Scheck from the Innocence Project will join to give us his view. And we'd like to hear from you. If you, as a student, worked on one of these projects, call and tell us what your experience was like. And we'd also like to hear from prosecutors and defense attorneys, 800-989-8255. Email us: talk@npr.org.

I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

Journalism students at Northwestern University have been looking at the work of police and prosecutors with real results for better than a decade now. It's part of the Medill Innocence Project. But now, prosecutors have turned the tables. They subpoena the grades, email messages and much more of the journalism students themselves.

We've been talking to Jonathan Turley, professor of public interest law at George Washington University. In a moment, Barry Scheck, pioneer of the Innocence Project in New York. We also want to hear from you. If you worked for a similar project as a student, what records do you think prosecutors are entitled to? We'd also like to hear from criminal prosecutors and defense attorneys, 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our Web site. That's at npr.org, click on TALK OF THE NATION.

Joining us now from our bureau in New York, Barry Scheck, founder and co-director of the Innocence Project of the Benjamin N. Cardoza School of Law. Nice to have you back in the program today.

Mr. BARRY SCHECK (Benjamin N. Cardoza School of Law): Great to be here.

CONAN: And what exactly do these students do? Are they acting in the role of investigators or are they journalists?

Mr. SCHECK: Well, you have to make a distinction first. And I agree incidentally with Professor Turley's legal analysis completely. But the Innocence Project that we started at Cardoza Law School and in many other law schools and public defenders offices across the country and private law firms, there are law students there that are investigating the case. There are a few Innocence Projects that use journalism students. And the most famous one, the Medill School and Professor David Protess, one of the founders of this whole movement there, had issues.

So first, you have to distinguish between law students as part of a legal, you know, services innocence projects and journalism students. And so, journalism students might be considered journalists, but law students certainly would not be.

Mr. SCHECK: That's right. And different kinds of privileges attach to both sets of activities. And I don't think there's very much of a question here that David Protess supervises these students and they are engaged in an act of journalism of a highest order. And, you know, frequently reporters will call prosecutors and they'll say, look, I think you should look into something. You know, here are some information before they even publish it. That doesn't mean that the prosecutor can turn around and get all their email messages or anything of that nature. And this subpoena is so overbroad that it would a chilling effect on any Innocence Project, whether it's journalism students or law students.

And none of our projects across the country have ever received a subpoena like this before.

CONAN: No, that's why this is a novel attempt by the Cook County Prosecutor's Office. But on the basis of fairness, some of the things might be correct if Innocence Project - why should we just get, from the prosecutor's point of view, why should we just get your version of events if you've got other interviews that might support the other side, we'd like to hear those too.

Mr. SCHECK: Well, the point is, witnesses. And one of the problems here is that sometimes prosecutors unfortunately they own witnesses when, in fact, you know, both sides should have access to witnesses and even journalists if the witnesses choose to talk to them should have access to witnesses. And, yes, as I understand it, the tapes that the students made of the witnesses have been made available to the prosecutors. The prosecutors themselves can and should talk to the witnesses. Witnesses can be subpoenaed in court.

And you know, arguably if the issue arises, even the students themselves with respect to certain conversations that are public, that are part of the tape, that are quoted even in the newspaper can be questioned about those things. Although when you start looking at (unintelligible) those kinds of matters become narrower and narrower. But the idea that you're going to get everybody's email records and the grades of, you know, such marginal relevance is overboard. And then a lot of these things they could get just by going to the Web site. If they want the syllabus, they can get this by less intrusive means that won't shove investigative activities.

CONAN: As Professor Turley was suggesting, the grades go to motive and were the students - did they have an incentive to seek an evidence of innocence rather than the truth?

Mr. SCHECK: Well, I mean, journalists themselves have, you know, an incentive a good story. No matter what, do we subpoena, you know, their salaries, their evaluations within the newspaper as to whether they're doing a good job or a bad job? Do you get their personnel files? No, unless it's a very, very special circumstances. Do we get the prosecutor's personnel file about his or her motivations in bringing a case? Do we get the police officers personnel case in every case? No. So this subpoena is way out of bounds.

CONAN: Jonathan Turley, is it normal for a subpoena to be issued saying, asking for the moon hoping to get a crater or two?

Prof. TURLEY: Well, certainly, you can get very broad subpoenas like this. Prosecutors are often criticized for not tailoring subpoenas. But when you're in an area of sensitivity like journalism or the clergy, there are policies that you're supposed to balance those needs, look at alternative sources. And what fascinating, I was in a case where I ask for motivational evidence of a prosecutor in a criminal case. And I was met with sheer horror from the prosecutors who immediately said, his motivation's not relevant in the facts in this case.

And here, you've got prosecutors saying the opposite. It is very relevant. And I think they would have been better off with a degree of adult supervision here in reducing this subpoena. I could see them, for example, asking if money was exchanged. For example, you know, was there any compensation given to these witnesses in any form. That seems a relevant a question. But those types of questions are usually handled on a telephone call where the professor says, you know, that's a fair question and I'll go ahead and I'll answer it in a letter to you.

CONAN: We should point out again, we did make a request for the Cook County prosecutor to be available to us or somebody from her office and they were not able to make anybody available to be on this program with us. So, anyway, 800-989-8255. Email: talk@npr.org. John's(ph) on the line from Cleveland.

JOHN (Caller): Yes, I'd like to ask Professor Turley if this isn't just subjecting defense investigators to the same scrutiny that prosecution investigators are now subject to under Henthorn and Giglio where in fact the defense attorneys are allowed to go fishing through police officers' personnel files.

CONAN: By quoting Henthorn and Giglio, John, I assume you have some professional expertise?

JOHN: Yes, I'm a retired federal criminal investigator.

CONAN: Okay. Jonathan Turley?

Prof. TURLEY: Well, I think this goes to the difference of the position between the parties. You know, the burden is on the state to prove guilt. And that's probably one of the most important things that a government does. And so, we put a lot of burdens. We require the government to give us information in their possession. It's not a got you type of thing. And we do protect the defense files because there is this need to protect the process.

The government has many, many advantages. So, I think the answer to that is it's not really this identical position where everyone should get the same type of information because they're not in the same position. And I think that we have here is something that's hard to imagine why this evidence is relevant. Why does it matter how Laura Brown(ph), Evan Ben(ph)…

CONAN: These are the students named in the subpoena.

Prof. TURLEY: Yeah. What does it matter how Laura did in her full term? Does that really matter what grade she got?

CONAN: Matters to her parents.

(Soundbite of laughter)

Prof. TURLEY: Yes, it certainly does. But I think the question here - it's not a question of whether some information should have been given, but rather the scope of this. And it does come across as highly antagonistic.

CONAN: John, you sound like you think this is unfair.

JOHN: Well, the professor seems to be saying what's good for the goose isn't good for the gander.

CONAN: Well, I think what he's saying is the prosecution has a lot more power than the defense.

JOHN: Well, I just know that all of my co-workers thought it unfair when defense attorneys were allowed to read through their personnel files and it just seems that the subpoena is an attempt to extend the same type of scrutiny to defense investigators, whatever label they put on themselves.

CONAN: Barry Scheck?

Mr. SCHECK: First of all, I think the audience ought to know what Giglio is. Giglio is a case out of the United States Supreme Court which says that when a witness, a testifying witness, has been offered a deal by the prosecutor in exchange for their testimony, the state has to turn that over. So, I don't think that that is an issue in this case at all. That's clear and I don't think that's a problem.

As far as the personnel files is concerned, you can't just, as a defense lawyer, get access to an investigator's personnel file and go rummaging through them. I don't know of a jurisdiction where that can possibly happen. Before one can even get access to a personnel file, which first ordinarily will be turned over to a judge for what they call in-camera inspection, certain very rigorous kinds of standards have to be met in a case by case basis to get access. And as Professor Turley was indicating at the beginning of the program, sometimes one can get to the files of journalists or get journalists to testify about certain events.

But again, the First Amendment requires certain kinds of particularized showing. And I want to add very quickly, with respect to defense investigators, if the defense investigator goes out, interviews a witness and then that witness interview was proffered in court for any particular purpose, the defense is under the same obligations as the prosecutor, what they call reverse discovery, to turn over those statements and does so. So…

CONAN: Just with that witness, not every witness?

Mr. SCHECK: Not every witness they talk to, but that witness. And finally, I'd like to make a point about Innocence Projects generally, whether they are part of a legal program or a journalism program. Innocence Projects are a little different from a policy point of view, because we are investigating cases where individuals have been convicted and our purpose, even as lawyers, is to find out whether they did it or not, and often try to find out who really committed the crime.

And let us not forget that the biggest case the Medill Innocence Project arguably handled was man named Anthony Porter, who came within two days of execution. An 18-year-old journalism student, Charm Ambrast(ph), who now is actually - teaches at Georgetown Law School, runs her own Innocence Project, you know, went out and found the information showing that another person who had actually been a witness against Porter committed the crime and saved Porter's life and actually led Governor George Ryan to begin to look at other death row convictions, exonerate some others and give, I think, close to 170 people life in prison instead of potentially the death penalty.

CONAN: Barry Scheck, how often do Innocence Projects find that the case is not justified, that in fact the person did do it?

Mr. SCHECK: Well, our Innocence Project at the Benjamin N. Cardozo School of Law, we do DNA testing, which is kind of a magic bullet. And we find that in the cases where we get results now, about 40 percent of the time the person turns out to have actually committed the crime, or the DNA is unfavorable. Forty-three percent of the time, it's exonerating. And I must hasten to add, out of the 200 and, I think, 44 post-conviction DNA exonerations now, we have found the real perpetrator, identified them 105 times.

So this whole enterprise of Innocence Projects, be they legal or journalistic, I think, you have to recognize we're after the truth, we're after seeing whether the person is innocent or guilty. If we come up with proof that they're guilty, generally speaking, the projects drop the cases. They always do. And in turn, we often find the real person who committed the crime.

CONAN: You're listening to TALK OF THE NATION from NPR News.

Jonathan Turley?

Prof. TURLEY: Well, I agree entirely with what Professor Scheck said. And I think he made a very important distinction between his project and his other projects. These are the most amazing projects we've seen in the legal system since the beginning of the Republic. These are amazing projects.

But I think that when we're talking about chilling effect, we should remember that part of a chilling effect here is the one that reporters really worry about, and that is the willingness of people to speak to them.

That's - we have to remember that the privilege is not there just as a protection for journalists. It's there to do the work of journalism. And what these students were doing was going to people who could put themselves in legal jeopardy or maybe physical jeopardy. And they were able to at least suggest some privilege, some protection if they could speak to them. They might be willing to speak to them rather than a state attorney.

If Illinois gets its way, you could have a perfectly glacial chilling effect where people will say: yeah, I can talk to you, but, you know, the prosecutors can then find out everything I said to you. And that has an impact on what they do.

CONAN: Let's get another caller on the line. And let's get to Ben(ph). Ben, with us from Sacramento. And I understand, Ben, you're a reporter for Capital Public Radio.

BEN (Caller): I am and I was also in (unintelligible) journalism class at Northwestern.

CONAN: At Northwestern and actually got a job, so that's good news. But what was that experience like?

BEN: It was a really good experience. And I learned a lot in terms of, you know, investigative techniques, in terms of, you know, when you go to - you know, getting documents and talking to people who really don't want to talk to you. You have to try to - you know, you're an outsider going into a community where you really have nothing in common. And you've got to try to convince people to talk about a very sensitive subject. And, you know, we don't - you don't always succeed.

We - my group did not succeed in what we were trying to do. It was a case involving a prisoner in Michigan who - a black man who had been convicted of shooting a white cop. And it was a very racially sensitive area - at the Benson Harbor area of Michigan.

CONAN: Yes.

BEN: And we were not able to come up- you know, we had someone we thought was an alternate suspect and we went out to Ohio to talk to him and the statute of limitations was up but this person did not obviously say that the…

CONAN: Spill the beans, yeah.

BEN: …he actually ruined it.

CONAN: Did your grades suffer as the result of not getting the goods?

BEN: Not to my knowledge. I don't remember exactly what I got, but I got a decent grade. You know, to the extent that the grades might suffer, it might just be simply how hard you try, and not how hard do you try to find someone who's guilty, but, you know, are you doing your job as a reporter out there? Are you persistent? Are you talking to the people you should be? You know, especially when you're a young journalism student who hasn't - doesn't necessarily have a lot of full-time experience, you know, you get a little nervous out there. You're out of your element, and a lot of it just throwing up as a reporter.

And if you're not able to really just get out there and talk to people, if you were a hesitant and if you don't push, not push to try (unintelligible) it's not there. But if you're just sitting there not doing your job, you're not going to get a good great. But that has nothing to do with, you know, whether the person is guilty or not.

CONAN: Ben, thanks very much. And I think what you're saying, if I could summarize, we just have a few seconds left, is you didn't detect any incentive to say, if you don't find people who are going to be cleared of convictions, you're going to get a D?

BEN: That's correct. That never really crossed my mind.

CONAN: Okay, Ben. And continue the good work there at our member station in Sacramento. Appreciate the phone call.

BEN: Thanks.

CONAN: Bye-bye. Barry Scheck, thank you very much for your time today.

Mr. SCHECK: My pleasure.

CONAN: Barry Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law in New York. And we'd also like to thank Jonathan Turley for joining us in Studio 3A. He's professor of public interest law at George Washington University and an expert on Constitutional law. Thanks again.

Prof. TURVEY: Great, pleasure. Thank you.

CONAN: And we should again remind you, we did invite a representative from the Chicago public prosecutor's office to be with us to discuss their side of this case. They declined to make anybody available on short notice, and we appreciate their efforts to try to provide somebody. In any case, we did make the effort.

I'm Neal Conan, it's the TALK OF THE NATION from NPR News.

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