I'm reading David Protess's old e-mails, the ones from 2005 through 2007, and I'm wondering why they didn't show up in the October issue of Chicago magazine. Bryan Smith, who wrote the Protess piece for Chicago, complains in it that Medill professors critical of Protess wouldn't talk to him. But all they would have added to Smith's story were their opinions. The e-mails are inconvenient facts.
Inconvenient to Protess, that is. That's why the Cook County State's Attorney put them in the public record last June, and it's why the associate dean of the Medill School of Journalism and Etcetera is so unhappy Smith pretty much ignored them. When Mary Nesbitt read Smith's story in early September, she judged it to be a shallow, pro-Protess puff piece, and wrote a long letter of complaint. An exchange of e-mails and telephone calls with different Chicago editors and even its publisher did not give Nesbitt the satisfaction she was looking for, so she restated her beef on the record to me.
"I was stunned that a city magazine of the caliber of Chicago would publish a story with so many journalistic problems and fail to acknowledge so few of them," Nesbitt began. "I guess we have very different standards of responsible journalism." She scorned the terms she said Chicago offered in response to her complaint: published "clarifications" of a couple of minor points (the clarifications ran in the November issue) and an invitation to write a letter to the editor of 300 words or less, with Smith allowed the last say.
What she wrote for me instead can be read at chicagoreader.com. She attacked Smith for his "conspicuous lack of sources, named or otherwise, bringing other perspectives and information to the story," and for ignoring "extensive documentary evidence" that Protess acted inappropriately. This evidence would be the e-mail stash a forensic search of Protess's computers revealed—e-mails that might have played a central role in the Chicago story but instead played almost no role at all.
The founder of the Medill Innocence Project, Protess taught his students the investigative trade by enlisting them in his crusade to free innocent men from prison. Medill basked in his fame. But Medill's primary business is not to free the innocent; it's to teach students to be responsible and ethical journalists. Last spring Medill got rid of him.
The parting was brutal and public. From 2003 to 2006 the Innocence Project had investigated a 1978 murder on behalf of the Anthony McKinney, who was a teenager when he was convicted of it. Protess's team presented its case that McKinney was innocent to the Cook County State's Attorney's Office, which then conducted its own inquiry and in 2008 concluded that—as a court filing four months ago put it—the innocence claim "had no merit." The next step might have been to let a judge decide—McKinney's lawyer presenting the Innocence Project's evidence, the state's attorney's office contradicting it. But Anita Alvarez, the new state's attorney, decided in 2009 to go on the offensive. To again quote from the recent court filing, the Innocence Project had turned in "affidavits and video clips of selected witnesses from selected interviewers [her office's emphasis]." Perhaps all the affidavits and video clips and student memos would tell a different story. So Alvarez subpoenaed them.
Protess argued that these materials were protected by the reporter's privilege—he and his students had acquired them as journalists, hadn't shared them with McKinney's lawyer, and couldn't be made to share them with the state. Medill's dean, John Lavine, and Northwestern University's attorneys backed Protess to the hilt. But then they didn't. Last April the university issued a statement accusing Protess of "knowingly making false and misleading statements to the dean, to University attorneys, and to others" about what he'd shared.
The university offered one now-celebrated example. The forensic review of Protess's computers had established that in December 2009 Protess sent the dean and the attorneys a "falsified communication in an attempt to hide the fact that the student memos had been shared with Mr. McKinney's lawyers." He'd shown them a 2007 e-mail to his assistant, Rebekah Wanger, that said, "My position about memos, as you know, is that we don't keep copies . . ." Yet the university now knew the original wording was, "My position about memos, as you know, is that we share everything with the legal team, and don't keep copies . . ."
The "we don't keep copies" e-mail from Protess to Wanger is the only e-mail Smith cited. But last June the state's attorney's office put about 60 pages of e-mails in the public record—many of them ones Lavine had already shown the faculty. Rifle through them as I'm doing and ask yourself this: "Could the university read these and still claim Protess and his students acted as independent journalists, rather than as investigators in league with Anthony McKinney's attorney?" That's a central question Smith could have addressed on his own authority. (Smith referred me to his editor, Elizabeth Fenner, for an on-the-record response to Nesbitt. Fenner said Chicago stands by its story and she was sorry Nesbitt turned down the opportunity to write a letter to the editor.)
McKinney's attorney, Karen Daniel, to Protess, June 2, 2005: "It won't bother me if you and your students visit Tony before we do. It might even be preferable. We'll have a different type of relationship with him than your group, and if we overlap, it might be confusing to him. Let me know if you decide on a date (and I'll do the same)."
Protess to "Team McKinney," May 25, 2005: "I had a long talk with Karen yesterday about the case. . . . We agreed on a protocol for disseminating memos and transcripts of your forthcoming interviews. . . ."
Protess to Daniel, May 27, 2005: "We finally located Clyde Long ('Huckabuck'), the alleged eyewitness to the Lundahl murder. . . . Needless to say, I'll immediately let you know what he recalls about the shooting."
Protess to Daniel, June 6, 2005: "Here is a transcript of the latest prison interview with Francis Drake, Tony Drake's nephew. . . . While Francis was incredibly helpful, I firmly believe that he knows more than he's saying. I'm hopeful that in future interviews he'll directly implicate his Uncle Tony, Michael Lane and others in the crime. (In particular, it would be great if he'd acknowledge that his uncle said 'We shot. . .' rather than 'they shot' when he and Lane entered the home on the night of the crime . . . )"
Daniel to Protess, December 14, 2005: "In looking at your students' list of future plans, though, I noticed that Gwen Pettis is a prospective interviewee. I'm writing to suggest that your students not contact her. One of my students (in fact, my most personable student) talked with Gwen this semester . . ."
Protess to Daniel, December 7, 2005: "On Monday my students turned in their final reporting memos for the quarter. They're on the verge of several important breakthroughs, and will push to finish their work when they resume in January. (Four of the five are returning.) Meanwhile, if you'd like to read their memos, just have one of your students contact [staffer Yuri Gottesman]. I believe he has everything on a CD, or you can ask for printed copies."
Daniel to Rebekah Wanger, October 25, 2006: "My students are about to travel to Columbus OH to interview a witness named Dennis White. For the life of me I can't find the address and phone number that David's students found for White. Is that something you could put your hands on in the next day or so? For that matter, I have electronic copies of every semester of Medill reports on the McKinney case except Winter and Spring 2006. Yuri put them on a CD for me. Is there any chance that you could do that for the last two semester's worth of reports?"
It seems Protess, running the Innocence Project of Northwestern's journalism school, and Daniel, staff attorney for the Center on Wrongful Convictions of Northwestern's law school, conducted themselves as allies in a common cause. I'm neither shocked nor surprised; but, no, it's not the way journalists are supposed to act. In September, criminal court judge Diane Cannon ruled that the Innocence Project students hadn't been reporters and must obey the subpoena.
Bryan Smith e-mailed me with an explanation of why his story didn't get into the e-mails. "I thoroughly reviewed that filing, including reading carefully through the e-mails included in it," he told me. "And though I didn't quote the emails verbatim, the story does make clear, more than once, their importance to the university's case against Protess. More to the point, what those emails revealed is that Protess shared the evidence his students uncovered with McKinney's lawyers—a fact he himself acknowledged on the Innocence Project's website six months before the subpoena was even issued. The issue was not whether Protess collaborated with the center. The issue was whether Protess had turned over everything to McKinney's lawyers. Those emails could have misled readers into believing he had, when a later court filing by the Center's attorney—referenced in my story—made clear that he had not."
This is a reasonable point, and Smith does describe John Lavine leading "stunned professors through a detailed PowerPoint presentation" of Protess e-mails. But it would have been helpful to examine what stunned them. At the core of this saga—as I perceive it and would have written it—is the question of whether Protess and his students acted as journalists and could be defended from Alvarez's meddling or acted as partisan investigators and could not. The lawyers defending Protess against Alvarez's subpoena believed one thing until they concluded they had no choice but to believe another.
Normally, journalists and prosecutors aren't on opposite sides in a courtroom. Normally, investigative reporters try to build a case of criminal conduct and hope a prosecuting attorney will act on it. Protess earned his bones with the Better Government Association, where he was research director from 1976 to 1981. In that era, BGA investigators teamed up with journalists but didn't think of themselves as journalists exactly, though some later became reporters. For example, Bill Recktenwald now teaches journalism at Southern Illinois University in Carbondale. "If we knew about something, like a shakedown or something," Recktenwald remembers, "we'd contact prosecutors and say we know about this shakedown. On a couple of occasions I wore a court-authorized wire and was involved before the individual was arrested." One of his first big assignments, he remembers, was a probe of west-side vote fraud for the Chicago Daily News. His job was to register in flop houses under phony names and later look for those names in the rolls of registered voters.
Recktenwald's boss is Bill Freivogel, a former St. Louis Post-Dispatch reporter who admits that at various times in his career he's "traded information on a confidential basis with policemen or prosecutors in hopes of teasing out information I didn't have." A lawyer, he's followed the Protess affair closely enough to write about it, yet he had to think hard to recognize that Protess had compromised his reporter's privilege. "If you gave a test to 1,000 reporters," Freivogal says, "I don't think too many of them would realize off the top of their heads they were potentially waiving any right to claim confidentiality if they used the information they had to trade up to a prosecutor to get additional information."
I also had a conversation with Ed Pound, who was the top investigative reporter at the Sun-Times back in the 70s, when I worked there. He and his colleague Tom Moore were the reporters who brought down Tom Keane, the powerful floor leader of the City Council. Their articles laid out a complicated real estate scheme Keane had masterminded, and the U.S. Attorney's Office later convicted him of fraud and conspiracy. Pound wouldn't talk then about how he got that story, and he won't talk now. But, he said, emphasizing that he was only sharing general principles, "There is nothing unusual about working with prosecutors or defense attorneys. For most investigative reporters, those are essential relationships for getting the job done. It's part of the game—you have to do it."
He continued, "What you don't do is give people your internal work product—I took documents, I didn't give them up. It's pretty hard to take a position you've got [First Amendment] protection if you're turning over internal work product. But let's say somebody asked you about a particular individual and wanted your paper's clips on him. I'd give them the clips. It's a road you have to travel very carefully."
And once a reporter wrapped up his investigation, I asked Pound, would he ever discuss what he had with the prosecutors before publishing it?
Yes, he said.
Protess traveled the road, but not carefully—and not, Anita Alvarez might say, in the right company. Alvarez spotted her opportunity and she took it. But it's not a clear line or a straight line that Protess crossed, or a line that runs a country mile this side of the place those e-mails put Protess in. Alec Klein, the former Washington Post investigative reporter who now runs the Medill Innocence Project, says he'll make it clear his students are reporters by simply publishing their findings on the project's website. That's a proper, necessary, second-generation reform. The first generation has left the building.