A "Tie" to Politics

Freivogel: Medill prof fights to prove his own innocence

By William H. Freivogel, visiting professor, Paul Simon Public Policy Institute

In 2009, when a prosecutor went to court to force David Protess to release information compiled by journalism students working on his famous Innocence Project, Northwestern University and the Medill School of Journalism came to the defense of the popular, pugnacious professor. After all, Protess had made the school famous for having helped free 12 men who had been wrongfully convicted, including five from death row.

Two years later, the university and Protess are in an ugly fight. The university removed him from his classroom, claiming he made misleading statements to its lawyers. Protess responded by accusing the university of conducting a “smear campaign” in search of a fall guy.

One issue in the dispute is whether Protess’ students are covered by the Illinois “Shield Law” permitting reporters to protect confidential sources and information. The university, which at first was ready to defend the reporters’ privilege of the students, now says that Protess hid the fact that he had provided confidential student memos relating to a murder case to a defense lawyer. By providing the memos to the lawyer, Protess may have waived the privilege, the university says.

In explaining its decision to back away from Protess, the university said in a statement this month it had “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.”

In 2008 it looked as though the case of Anthony McKinney was the latest of Protess’ triumphs. Based on evidence largely collected by Protess and his journalism students, lawyers went to court to seek a new trial for McKinney, who had been convicted of the 1978 murder of a security guard in Harvey, Ill. Protess’ students found a witness who said McKinney was not present at the murder scene.

Protess recently told a reporter for the Chicago Reader that “Of all the many investigations I’ve ever been involved with, this was about the most airtight case of innocence.”

“If the McKinney case had been handled the way law enforcement has handled every one of my cases, Anthony McKinney would have been released two years ago.”

But Cook County State’s Attorney Anita Alvarez did not react the way others had. Instead she was suspicious of the tactics used by the students, calling into question the $40 of cab fare that students paid to the witness who said McKinney was not at the murder scene.

Alvarez went to court in 2009 seeking 11 categories of information including “notes, memoranda, reports and summaries” prepared by the students. She also sought the students’ grades, Protess’ course syllabus and grading criteria.

Judge Diane Cannon refused to force Protess to turn over the grades, but, based on the account in the Chicago Reader, appeared unconvinced student journalists should be covered by the Shield law.

“Is someone who has a Web site a journalist?” she reportedly said at a hearing in June, 2010. “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.”

Around the time of the hearing, Sidley Austin, the firm representing the university and Protess, concluded it had received misleading information about the student work. It withdrew from the case and the university hired Jenner & Block to conduct an inquiry into what had happened. Former prosecutors at the law firm imaged the hard drives of Protess’ computer.

The university said the inquiry found 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” in December 2009.

Protess had turned over a November 2007 email stating, “My position about memos, as you know, is that we don’t keep copies….My position about memos, as you know, is that we share everything with the legal team, and don’t keep copies….”

In other words, Protess had removed the phrase about sharing the memos with the legal team.

The university maintains that Protess knew from the start that sharing the memos jeopardized that reporters’ privilege claim. But Protess says the university knew from the beginning the memos had been shared. He also maintains the altered email had a notation at the top saying that part was redacted.

Protess says the phrase he removed was inaccurate and he was altering the email to make it more truthful. By stating “everything” was turned over, the email suggested every student document was turned over to a lawyer for McKinney. In fact, many student documents were of a personal nature and never were included in the file turned over to the defense lawyer, he said.

Protess also said his wife had been fighting cancer at the time and his memory was not as clear for that reason.

Medill removed Protess from his signature class earlier this semester, leading students to protest his absence. Dean John Lavine met with the faculty behind closed doors earlier this month to present them with Jenner & Block’s findings. Then the university released its statement explaining the action.

In response, Protess called for an independent review of the entire matter and raised the question of whether Dean Lavine is acting “in retaliation” for Protess’ involvement in a 2008 scandal concerning quotes Lavine had used in a Medill alumni magazine. Protess spoke to students who might have made the statements quoted by the dean and found that none had. The university cleared Lavine although the source for the quotes was not identified.

“I want to be clear, I’m not accusing the dean of anything here,” Protess said in an interview with the Daily Northwestern this month. “I’m saying, ‘Let’s have an independent, impartial review that looks at the problems that have occurred in the past few years.’”

Protess, who has taken leave this semester, has started a new Chicago Innocence Project intended to involve journalism students from other journalism schools.

Meanwhile, McKinney remains locked up in the psychiatric unit of the state prison at Dixon, Ill.

Freivogel: SCOTUS strongly defending free speech

By William H. Freivogel, visiting professor, Paul Simon Public Policy Institute

The Roberts court, with the chief justice in the lead, is amassing a strong free speech record by refusing to carve out new exceptions to the First Amendment and by expanding the frontiers of free speech in the areas of campaign finance and hate speech.

This month’s 8-1 decision protecting the virulently anti-gay speech of the Rev. Fred Phelps of Topeka, Kan., is the most recent of a series of important free speech decisions by the Roberts court.

Last term the court ruled that corporations could use treasury funds to support political candidates in the weeks leading up to the election. It also threw out a federal law punishing depictions of animal cruelty. Court observers expect the court to toss out California’s law against violent video games for juveniles when it hands down its decision in that case later this year. › Continue reading

Freivogel: Justice Dept. investigation of NYT reporter questioned

By William H. Freivogel, Visiting Professor, Paul Simon Public Policy Institute

The following is an excerpt from a story Bill Freivogel wrote for the St. Louis Beacon.

The Justice Department obtained the credit reports, credit card statements, personal bank records, travel records and telephone call information for New York Times reporter James Risen during its espionage investigation of St. Louisan Jeffrey Sterling, according to a recent court filing.

The disclosure is the latest indication of the unusual tactics used by the government in the prosecution of Sterling, a former CIA agent who once accused the agency of racial discrimination and later allegedly leaked information about a botched intelligence operation directed at Iran’s nuclear program.

Justice Department rules discourage the use of prosecutorial power in a way that “impairs a reporter’s responsibility to cover as broadly as possible controversial public issues.” The rules normally require the approval of top Justice Department officials before prosecutors obtain a reporter’s personal phone records. The same requirement normally applies before prosecutors can call an attorney for a defendant such as Sterling before a grand jury. The purpose of the rules is to protect freedom of the press and the lawyer-client relationship.

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Freivogel: State leads nation in prosecuting citizens who record police

By William H. Freivogel, Visiting Professor, Paul Simon Public Policy Institute

At a time when millions of Americans have a cell phone with video and audio capability and when videotapes of police misconduct often are the stuff of news reports, Illinois is leading the nation in prosecuting citizens who tape officers in public.

Illinois has one of the three most restrictive eavesdropping laws in the country, along with Maryland the Massachusetts. And Illinois police and prosecutors are not shy about using the law to punish the taping of arrests and interrogations.

Chicago authorities recently have charged a street artist and a stripper for violating the law. Both face 15 years in prison. › Continue reading

Freivogel: Mo. Proposition B flew under the radar

By William H. Freivogel, visiting professor, Paul Simon Public Policy Institute

The passage in November of the Missouri’s statewide ballot proposition to prevent cruelty to dogs in puppy mills illustrates the
adage: be careful what you wish for.

Proposition B – The Puppy Mill Cruelty Prevention Act – passed on election day with 51.6 percent of the vote, winning big majorities in Missouri’s urban counties. Meanwhile, in rural Missouri, where groups like the Missouri Cattlemen’s Association saw it as a harbinger of future regulation of livestock, huge majorities voted against the proposition.

What didn’t get much attention on Election Day was that the statewide victory won by urban liberals and progressives on Prop B may have had the unintended consequence of riling up rural voters so much that Republicans gained 17 seats in the Missouri House, giving them an almost veto-proof majority. › Continue reading

Freivogel: Are Wikileaks the 21st century’s Pentagon Papers?

By Bill Freivogel, visiting professor, Paul Simon Public Policy Institute

The following is an excerpt of an analysis written by Visiting Professor Bill Freivogel for the St. Louis Beacon.

The verdict of history, at least within journalistic circles, is that the New York Times and other leading newspapers made the right decision in printing excerpts of the Pentagon Papers, the top secret history of the Vietnam War. The papers showed that the government had been lying about the war and their publication was a factor in continuing to turn public opinion against it.

But it is easy to forget that the situation was not that black and white in the spring of 1971 when the Times began publication. The Nixon administration’s solicitor general, Erwin Griswold, filed a secret brief with the Supreme Court listing 11 drop-dead secrets contained in the papers. The government claimed that disclosure could endanger the lives of intelligence agents and prolong the war, with the resulting death of thousands more soldiers and many prisoners of war. (See sidebar for list of the 11 secrets.)

Some of Griswold’s claims are more alarming than the claims made about the WikiLeaks disclosures, and some are strikingly similar.

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Freivogel: Student death penalty watchdog facing legal questions

The surreptitious recording of conversations by a reporter – a tricky legal and ethical issue – is the latest charge that prosecutors have raised about the tactics used by David Protess’ students at the Medill Innocence Project.

State’s Attorney Anita Alvarez maintained in a written statement that the secret recording raised “serious legal and ethical questions about the methods that the professor and his students employed during their investigation.” The Innocence Project’s investigation concluded that Anthony McKinney was innocent of the 1978 murder of a security guard in Harvey, Ill.

The Innocence Project has been influential in freeing 11 people from death row in Illinois.

The prosecutor has spent more time during the past year investigating the reporting tactics used by Protess and his class than their evidence suggesting that McKinney was not the killer. › Continue reading

Freivogel: Court upholds Illinois “Silent Reflection”

By William H. Freivogel, Visiting Professor, Paul Simon Public Policy Institute

A divided federal appeals court in Chicago has upheld Illinois’ Silent Reflection and Student Prayer Act, requiring that public school teachers and students begin every school day with a “brief period of silence” for “silent prayer or reflection.”

The court ruled 2-1 that the law did not violate the First Amendment because it was justified by the secular purpose of calming school children to prepare them for the day. The decision sets aside a federal judge’s order barring the state from implementing the law on the grounds that it violated the separation between church and state. › Continue reading

Freivogel: Big money was around before Citizens United decision

By William H. Freivogel, visiting professor, Paul Simon Public Policy Institute

The following is an excerpt Bill Freivogel wrote for the St. Louis Beacon.

Conventional wisdom is taking hold in the news media and the political arena that the U.S. Supreme Court’s landmark Citizens United decision has opened the floodgates to big, secret money donations to conservative Republican candidates.

Legal experts say that conventional wisdom is misleading and overstated. Even before Citizens United, corporations could make unlimited corporate contributions to advocacy groups.

“Citizens United has become a whipping boy for criticism of money in politics,” wrote Bruce La Pierre, a Washington University Law School professor and expert on campaign finance law. “Many doors were left wide open before Citizens United and corporations and wealthy individuals were taking advantage of them. Citizens United’s door is not particularly attractive to most corporations because they would have to disclose, I think, their ‘vote for X’ statements. So corporations are using other vehicles to support candidates — other vehicles available before Citizens United.”

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Freivogel: Second time should be the charm for Fitzgerald

By William H. Freivogel, Visiting professor, Paul Simon Public Policy Institute

U.S. Attorney Patrick Fitzgerald has a good chance of winning additional convictions the second time he proscutes former Illinois Gov. Rod Blagojevich, say lawyers who are expert in white collar crime. After the first trial, the jury convicted Blagojevich on one of 24 counts.

Federal prosecutors in complicated white-collar cases that end in mistrials often win convictions the second time around. They learn what worked with jurors the first time and they simplify their cases to make them more comprehensible to the jury. › Continue reading