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Wednesday, April 6, 2011

Northwestern Accuses Protess of of Rank Deceptions

Posted By on 04.06.11 at 07:10 PM

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Northwestern University Wednesday afternoon accused Medill professor David Protess of "knowingly making false and misleading statements to the dean, to University attorneys, and to others."

The statement issued by vice president for university relations Alan Cubbage continued, "Such actions undermine the integrity of Medill, the University, the Innocence Project, students, alumni, faculty, the press, the public, the State and the Court."

Protess's alleged misdeeds turn on the university's response to a subpoena issued by State's Attorney Anita Alvarez two years ago. Alvarez wanted a variety of documents that supposedly would help her evaluate a dossier submitted by Protess and students of his Medill Innocence Project concerning a 1978 murder in Harvey. After a three-year investigation, the Innocence Project concluded that Anthony McKinney, convicted of that murder, was innocent. Protess resisted the subpoena, and Medill and the university at first took his side; but they would come to the conclusion that Protess had been hiding the fact that the Innocence Project had improperly turned over far more information to McKinney's lawyers than it did to Alvarez's office.

For much more on the court fight, and on the breach that's opened between Protess and McKinney's lawyers and between Protess and the Northwestern and Medill administrations, see my column this week.

Northwestern has gone so far as to image the hard drives of Project Innocence and Protess's personal computers. This imaging apparently led to what might be the gravest charge in the university's bill of particulars, that Protess sent Medill dean John Lavine "a falsified communication in an attempt to hide the fact that the student memos had been shared with Mr. McKinney’s lawyers. This communication included what Protess said was a copy of a November 2007 email, unredacted save for removal of 'personal information,' that he had sent to his program assistant. The email copy he provided stated that: 'My position about memos, as you know, is that we don’t keep copies….' However, examination of the original 2007 email, which was only recently obtained by the University, revealed that the original wording actually was: 'My position about memos, as you know, is that we share everything with the legal team, and don’t keep copies….'”

I asked Protess for comment on the statement.

"They accused me of lying to them about the memos sent to the Center, except this time Cubbage claimed I lied from the very beginning," Protess emailed me. "Unfortunately for Mr. Cubbage, I have proof that this issue didn't even arise for four months and, when it did, I replied by saying 'it had been years' and I wasn't sure."

Here's the university's complete statement:

Northwestern University generally does not discuss publicly actions regarding its faculty and staff. However statements in the media by Professor David Protess and our desire to be as forthcoming as possible on an issue of great importance to the University, its faculty, our students, alumni and our community prompt us to make the following statement.

This afternoon Medill Dean John Lavine shared information with his faculty that explained his decision several weeks ago not to assign teaching responsibilities to Professor David Protess this quarter. Protess is on leave from both teaching and directing the Medill Innocence Project this quarter.

Lavine’s decision followed a thorough review by the University and its outside counsel, Jenner & Block, of the information provided by Protess to Lavine and University attorneys in connection with a court case and of the practices and procedures of the Medill Innocence Project, which has been led by Protess. The review uncovered numerous examples of Protess knowingly making false and misleading statements to the dean, to University attorneys, and to others. Such actions undermine the integrity of Medill, the University, the Innocence Project, students, alumni, faculty, the press, the public, the State and the Court.

Under Professor Protess’ supervision, student journalists working with the Medill Innocence Project investigated the murder conviction of Anthony McKinney from Fall 2003 through spring 2006.

In May 2009, the Cook County State’s Attorney’s Office issued a court-approved subpoena to Medill seeking 11 categories of documents relating to the McKinney case, including a request for memoranda created by students as part of their investigative journalism work on the case. The University began working on a way to respond to the subpoena completely and accurately and also protect our students, their privacy and journalistic independence.

To be responsive to the subpoena, Northwestern needed to be certain which materials could be protected by a claim of reporter’s privilege under Illinois law and not be relinquished to the State and what materials would have to be turned over because they had been published or shared with a third party outside Medill. University lawyers repeatedly made that distinction clear to Protess, and Northwestern relied on his representations, as the long-time director of the Innocence Project, regarding what had been shared outside Medill and for which privilege could therefore not be claimed. Based on the information provided by Protess, the University took the position that student memos were privileged.

However, in June 2010 the University discovered that there were many inconsistencies emerging between Protess’ representations and the facts. Mr. McKinney’s lawyers produced in court student memos they said were received from Protess or from the Medill Innocence Project at his direction — documents Protess had said were never shared outside Medill. As a result, it became clear that the position the University had taken in court concerning the students’ memos was not supportable. Additionally, Sidley Austin, the law firm representing Protess and the University, informed the court that statements it had previously made were not accurate and withdrew its representation of Protess. Northwestern then hired Jenner & Block to determine what had happened in the subpoena response process.

Jenner & Block scrutinized relevant material obtained from computer hard drives related to the McKinney matter and conducted interviews with individuals with first-hand knowledge of the conduct regarding the subpoenas in the case.

The review uncovered considerable evidence that Protess: authorized the release of all student memos to Mr. McKinney’s lawyers despite his repeated claims to the contrary; knew from the very beginning that doing so waived any claim of privilege; and repeatedly provided false and misleading information to the lawyers and the dean. As just one example, in December 2009 Protess sent them a falsified communication in an attempt to hide the fact that the student memos had been shared with Mr. McKinney’s lawyers. This communication included what Protess said was a copy of a November 2007 email, unredacted save for removal of “personal information,” that he had sent to his program assistant. The email copy he provided stated that: “My position about memos, as you know, is that we don’t keep copies….” However, examination of the original 2007 email, which was only recently obtained by the University, revealed that the original wording actually was: “My position about memos, as you know, is that we share everything with the legal team, and don’t keep copies….”

In sum, Protess knowingly misrepresented the facts and his actions to the University, its attorneys and the dean of Medill on many documented occasions. He also misrepresented facts about these matters to students, alumni, the media and the public. He caused the University to take on what turned out to be an unsupportable case and unwittingly misrepresent the situation both to the Court and to the State.

Medill makes clear its values on its website, with the first value to “be respectful of the school, yourself and others - which includes personal and professional integrity.” Protess has not maintained that value, a value that is essential in teaching our students. That is why Medill Dean John Lavine has assigned the course to another faculty member this quarter and Protess is on leave.

The Medill Innocence Project’s work and achievements have been instrumental in pursuing the truth and righting wrongs. Northwestern University and Medill are committed to this work and its continuance, and the investigative journalism class related to the Project is now underway for the quarter with new leadership.

And here's documentation that according to Protess undercuts the accusations against him.It's an email to him, dated September 14, 2009, from a Sidley & Austin attorney then helping represent him, the Innocence Project, and Medill against Alvarez. It said, in part:

an issue has come up that we wanted to flag for you. We are still exploring it, but will likely want to have a call to discuss it later this week or early next week. Karen Daniel, McKinney's counsel, has indicated to us that she has a significant amount of materials from the investigation, including videos, transcripts, and student memos to David. Apparently she received these materials when she was first getting involved in the matter. It is her belief that some of these materials may not have been published. If that is true, it may create a waiver issue for us, at least with respect to those materials provided to McKinney's counsel.

My understanding at this time is that she has turned over to the State the videos and transcripts and intends to turn over to the Court for her review the remainder of the documents in response to discovery responses from the State's Attorney's Office. Ms. Daniel is obviously concerned about both complying with her discovery duties and also with representing McKinney to the best of her ability. I plan to talk with Ms. Daniel to further explore precisely what she has in her possession. At that point, we will likely want to have a call to discuss the status of the case and how best to proceed.

Protess replied, in part:

As for Karen Daniel, I asked her long ago what she'd kept, and she told me she only had the videos, audios and transcriptions from the interviews, which is what she'd told ASA Dalkin. The day before I left for vacation, she asked what we meant by the sentence on p. 2 of the brief about information we had "given" to her. When I said it had been several years and I couldn't remember, but thought it was just the tapes and transcriptions, she responded by saying it didn't matter since she hadn't saved anything besides the tapes. I'm befuddled that she's now suddenly claiming she has "student memos" and a "significant amount of materials."

Protess's reply to me Wednesday evening continued:

"They also claimed I misled them by redacting something from an email I showed them. Trouble is, what I redacted was inaccurate, and I did it so as to NOT mislead them. They also didn't show the entire message or the email that preceded and followed it — only one sentence, out of context.

"Ugh. Now I know, for the first time, what it's really like when powerful people try to railroad someone to promote their own agenda. In this case, they screwed up by not imaging the computers when they learned on Sept. 14, 2009 that Karen's memory and mine diverged."

What Protess removed from “My position about memos, as you know, is that we share everything with the legal team, and don’t keep copies….” was the language I just put in italics. I asked Protess what he meant by "what I redacted was inaccurate, and I did it so as to NOT mislead them."

He replied that the deleted passage wasn't literally true: "The clause was an over-generalization I casually made to my program assistant. (I used the word 'everything' but actually meant everything that was in her files.)" And he elaborated, "Who writes an email message that reads: I shared everything in the files but not the documents that didn't make it into the files in the first place?" Considering I was communicating with my program assistant who knew what "everything" meant, there was no need to elaborate....I take students' memos home and remove personal and private memos (which includes a lot, but nothing of evidentiary value) so that the file that ends up at the MIP office no longer contains everything. By definition, the Center could not have received everything."

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