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The Innocence Project crossed a line

But it's not a clear or straight line: Chicago magazine, David Protess, and the murky mores of investigative reporting

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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.

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