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"About the Most Airtight Case of Innocence" 

How a legal storm capsized a petition to free a man who’s been imprisoned for three decades.

More recent developments in this story are posted on the Reader blog here.

Northwestern University professor David Protess became a pedagogic superstar 15 years ago, when a team of students he led helped clear the names of the convicted killers known as the Ford Heights Four. Stories acclaiming Protess's triumph ran in newspapers that ranged from the New York Times to the National Enquirer, whose headline screamed, "COEDS SOLVE 18-YEAR-OLD MURDER. They free four innocent men & track down real killers." The Disney studio approached Protess about a movie.

But though justice triumphed, in other ways the story ended badly. The three women students fell out with their professor and wouldn't sign with Disney. Protess belittled their role and called them greedy. A private detective involved in the investigation accused Protess of grandstanding. The Chicago ACLU withheld an award it believed Protess and the students deserved because it didn't want any part of the pissing match.

That's the story I chose to tell in a long Reader column in 1996. Soon after it was published, the phone on my desk rang. A reporter from a national magazine—Newsweek, I think—was doing a piece on the Ford Heights Four, and she had a question for me:

Why did you take the angle you took? Why didn't you didn't write about what really matters—about why the Chicago dailies didn't lift a finger to free the Ford Heights Four and a journalism school had to?

I had no good answer. Protess might be a load, but what he'd accomplished was extraordinary. And ever since, there have been students coming to Medill simply because it offered the opportunity to learn investigative reporting from Protess in his Medill Innocence Project. Few seem to regret the experience.

Now Protess is back in the news, more controversial than ever, and I don't want to make the same . . . not mistake, really, but second-guessable choice of priorities. Recent breathless headlines—Northwestern accuses Protess, strips Protess of class; Protess takes leave, plans independent program—shouldn't turn our eye from what matters most here, the wretchedly compromised fate of Anthony McKinney.

Arrested in 1978 when he was 18 years old, McKinney has been behind bars ever since for a murder Protess isn't alone in believing he didn't commit—the killing of a security guard in suburban Harvey. Today, McKinney is a long-term patient in the psychiatric unit of the state prison in Dixon, and his one hope of freedom is a 2008 petition asking criminal judge Diane Cannon to grant him another trial on the basis of compelling new evidence. Much of this evidence was developed from 2003 to 2006 by Protess and his students in the Medill Innocence Project.

"Of all the many investigations I've ever been involved with, this was about the most airtight case of innocence," Protess tells me—though I grant you prosecutors always seem to have an airtight case of guilt. If State's Attorney Anita Alvarez had behaved like state's attorneys before her, Protess says, she'd have grudgingly accepted the Innocence Project evidence, followed up with her own investigation, and then done the right thing. "If the McKinney case had been handled the way law enforcement has handled every one of my cases," says Protess, "Anthony McKinney would have been released two years ago."

But Alvarez, a careerist in the office she's headed since 2008, reacted to the McKinney petition as her predecessors might have been tempted to—as someone rubbed the wrong way by the righteousness of Protess and his students and maybe a little creeped out by the tactics they might have used to wheedle admissions and confessions from the scum of the earth. Alvarez's spokesperson, Sally Daly, tells me the Innocence Project turned over a file in 2007 that consisted of single-page affidavits signed by the witnesses the students had interviewed and a videotape of one of those witnesses, Anthony Drake, claiming on camera that he'd been present at the murder and McKinney hadn't. When the state's attorney's office followed up, says Daly, it discovered "serious issues of credibility," particularly with Drake— who recanted his statement and said he'd been paid $40 after his interview, the money coming to him from the students via a taxi driver who dropped him off at a crack house.

"We don't have the luxury of only exploring one side of the story," says Daly, and through 2008 her office negotiated with the Innocence Project for more documents. But that December Alvarez became state's attorney, and she decided on a more in-your-face approach: she slapped Protess and Medill with a subpoena in April of 2009 demanding the students' "notes, memoranda, reports and summaries." She also wanted to know the grades Protess gave the students, his course syllabus, and grading criteria—and lots more.

It was a fishing expedition that would bring the campaign to free McKinney to a standstill and turn Northwestern University into a house divided. Two years later, Judge Cannon's courtroom remains mired in side issues. Are the student journalists entitled to the reporter's privilege to withhold information? And what information was actually withheld, anyway? Daly says Alvarez now knows that the Innocence Project turned over a lot more information to McKinney's lawyers in 2005 than it gave the state's attorney two years later. When a document's given to either side the reporter's privilege is waived; and the other side must get it too.

Cannon's courtroom, June 24, 2010: The various sides had gathered, but an answer to the question of whether McKinney would get a new trial was nowhere on the horizon. "This is not [that] hearing," said Cannon sarcastically. "They're responding to respondents to respondents to motions to amendments to motions to responses. We're nowhere near a hearing to my dismay."

On hand were Karen Daniel of the Northwestern law school's Center on Wrongful Convictions, representing McKinney, attorney Richard O'Brien, representing Northwestern and Medill and the Innocence Project, and an assistant state's attorney.

The session was all about the students. "You're not getting their grades," Cannon told the ASA. However, if someone "wants to make an accusation against a student, that's their right." A few weeks earlier Daniel had tried to get out from under Alvarez's subpoena by submitting a revised petition for a new trial that left out Anthony Drake and other witnesses interviewed by Protess's students. Then she thought twice and kept them in.

Judge Cannon imagined an accusation far more flamboyant than padded cab fare being made against Protess's students, and if that happened, she wondered if they'd come to court and defend themselves. She told O'Brien, "If a witness came in here and said a student promised me a date or gave me a wink and a nod and I told her what she wanted because she spread her legs, and we have no students to say he's full of it, then it's a question of credibility."

And she wondered if reporter's privilege even applied to students doing a class assignment? Does posting findings on the Innocence Project website constitute publication? "Is someone who has a website a journalist?" Cannon inquired snarkily. "And if I'm going to make that decision, I think it will be good news to all the parents in this state that they now have journalists for children."

"We're not making that argument," O'Brien replied.

You'd expect Protess and Daniel to be allies—the one developing new evidence, the other presenting it. But they haven't spoken in months. "We stopped being on the same page in December of 2009," Protess says, "when she claimed that I'd given her all of my students' reporting memos and I claimed I'd only given her some." The truth, he says, is that he didn't give her them all but he did give her more than he'd said. "I should have done a better job of keeping track of records," he allows. "I'm definitely guilty of that. But my focus is on the innocence case. The record keeping was sloppy as hell. Now it is much tighter."

In Protess's view, O'Brien and Daniel made the mistake of trying to placate Alvarez. "Every time you yielded, the prosecutors have demanded something else," he says. "It's the equivalent of trying to negotiate with terrorists. I'm speaking metaphorically here. When people are completely unreasonable, you cannot reach an adequate compromise."

Daniel doesn't disagree: "There's no end to the additional documents they seem to be asking for." And Daly, Alvarez's spokesperson, says her office isn't satisfied yet. "We still don't have any student notes, the notes they'd have taken of interviews," she says. "Some of the potential witnesses say they were interviewed five or six or seven times. So we don't have any of those—if they exist. And that's something we've been requesting from the outset."

But progress is finally being made on that front, Daly says, because the university has imaged the hard drives of five computers containing Innocence Project data: three at the project's offices and two at Protess's home.

That Northwestern took such a dramatic step tells us all we might need to know about the collapse of anything resembling a united Wildcat front. Last fall O'Brien repudiated Protess as a client, the Tribune recently reporting that he wrote Protess to say, "We believe that you have displayed a lack of candor with us and have not cooperated with us." Not so, says Protess, who claimed he "fired" O'Brien and hired a lawyer of his own because O'Brien wanted to placate Alvarez with documents and Protess didn't.

Earlier last year, Daniel had repudiated Protess. In a court filing in February, she tried to make it clear that her Center on Wrongful Convictions "is a distinct entity from the Medill Innocence Project. . . . The two entities have different missions and do not share staff. Their governance is entirely independent of one another." There was something ridiculous and tragic about this declaration. It wasn't simply that both entities were arms of the same university, one focused on freeing the innocent, the other on freeing the wrongly convicted. It's also that one was run by Protess and the other by Rob Warden, longtime friends who have written two books together. Yet Alvarez got them at cross-purposes. "It was a divide and conquer strategy, and it worked," says Protess.

Says Warden: "The whole thing here is that poor Anthony McKinney is innocent, for God's sake, and in this whole hullabaloo that's the story. Look here, what is the state's attorney saying? They're saying a couple of Protess's kids offered somebody $40 to basically implicate himself in a capital murder. That is totally absurd. We have documented cases in which prosecutors have paid witnesses tens of thousands of dollars to implicate people the prosecution thought were guilty. For them to suggest this is absurd. They ought to be ashamed. Anita Alvarez ought to be ashamed of herself."

Meanwhile, Northwestern hired Anton Valukas, a former U.S. attorney, to investigate Protess's program. (Hence, the imaged computers.) And this was not the first close look someone took of it. In 2008 Medill's dean, John Lavine, asked lecturer Eric Ferkenhoff, a former Tribune reporter, to do a pedagogical study of Protess's investigative-reporting class. It was a request that flattered Protess. After all, it was probably the most celebrated course on campus, and Protess's magic needed to be studied and understood. But more than two years later, Ferkenhoff's project remains unfinished, and Ferkenhoff now has an attorney of his own, someone he thought he might need to head off prying investigators demanding his notes and his sources. And last November Protess's new attorney, Robert Stephenson, wrote Lavine a letter accusing Ferkenhoff of using "false promises and misrepresentations" to gather information "aimed at unjustifiably discrediting" Protess and the Innocence Project.

However ham-handedly Northwestern may have handled the Protess affair, it clearly lost confidence in Protess's judgment and veracity—which gave it no choice this spring but to remove him from the classroom. That left Protess with no choice but get out from under these faithless deans and administrators. Hence, his leave and his new plans.

"So, in the short term," he says, "what I'm doing is continuing to work with Medill students on the cases we were investigating last term. Five students from that class will work with me on a volunteer basis. We're reporting on two wrongful conviction cases. We're very close to freeing one of the two prisoners." (Alvarez is not a party to that case.)

And in the longer term, there's the Chicago Innocence Project he's putting together. "The reporting's still going to be done by students, but they're going to come from all over the city, including universities that draw upon working-class populations of students and who have decided diversity. Please don't read that as a shot at Medill."

But if Protess lands on his feet, what good will that do Anthony McKinney?

He's so mired in limbo that Judge Cannon actually had an occasion to pose as his only benefactor. At a March 2010 proceeding—during the time Daniel was proposing to strip Innocence Project-tainted witnesses from her petition for a new trial—Cannon asked for assurances that McKinney knew what she was doing and approved. "Because of the breath that is being taken out of your original petition, I believe it is incumbent on me to make sure that Mr. McKinney knows what's going on," the judge told Daniel. "I feel that someone has to step up to the plate for Anthony McKinney and that would be me today."

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