Northwestern University journalism professor David Protess and his student reporters have shifted the course of Illinois legal history, helping to rescue innocent men from death row and influence former Gov. George Ryan's decision to halt executions.
Protess, the founder and public face of the Medill Innocence Project, is a media celebrity who co-wrote a book on a local murder case that was turned into a made-for-television movie.
Now the Innocence Project's methods are under scrutiny by its own university and Cook County prosecutors, who say the students crossed legal and ethical lines while investigating a decades-old murder.
Prosecutors -- so often the antagonists in the Innocence Project's story -- said in court Wednesday that students working on the investigation secretly recorded a witness, a practice prohibited under most circumstances in Illinois.
Northwestern has hired a former U.S. attorney to look into the project's investigation of the hotly contested case as well as other potential ethical violations by Protess and his students, sources said Wednesday.
Protess confirmed that there had been a secret recording made, but he denied that the investigation by high-powered attorney Anton Valukas is focusing on ethical violations. Northwestern spokesman Alan Cubbage said the university will review all the program's policies and procedures, including any use of a recording device. The university doesn't condone any class exercise that violates state law, Cubbage said.
State's Attorney Anita Alvarez said in a written statement that the recording revelation raises "serious legal and ethical questions about the methods that the professor and his students employed during their investigation."
Though he said he didn't authorize the recording, Protess said he doesn't think the students violated state law because they were wired so a nearby private investigator could listen in and intervene in case of trouble.
Protess said that since he learned of the recording, he has feared the wiretapping issue would create a distraction from his project's aim -- to add Anthony McKinney to the list of more than 10 inmates freed from prison with students' help.
"I was right, and I'm not happy about being right," he said.
McKinney was convicted of killing security guard Donald Lundahl with a shotgun in Harvey in 1978, and Protess' students' attempts to establish his innocence have fueled a running battle with prosecutors over the project's information-gathering tactics.
While the students and university-affiliated lawyers are pushing for a new trial, prosecutors have accused students of improperly paying witnesses. Protess has denied students made any ethically questionable payments. More than a year ago, prosecutors subpoenaed students' notes and grades, generating a storm of controversy. Wednesday's filing was part of a status hearing on that case.
More recently, a lawyer abruptly withdrew as Protess' lawyer in the case when he discovered not all the documents had been turned over to the state's attorney's office as promised.
According to an internal Innocence Project memo obtained by the Tribune, students went downstate in May 2004 to interview a man they believed might have been involved in Lundahl's killing. The students were concerned about the "possibility of bodily harm" by the man, described in the memo as a convicted killer, because they planned to confront him with audio-recorded accounts from people who blamed him for Lundahl's murder, according to the memo.
As one of the students wore a wire, the Innocence Project's private investigator, Sergio Serritella, listened to the interview in his car, ready to aid the students if necessary, the memo said. The man acted "erratically," pacing and raising his voice, then demanding money, after which Serritella started recording the conversation, according to the memo.
The Innocence Project-affiliated lawyer who wrote the memo in 2006, Rebekah Wanger, wrote that she didn't think the students violated the state's eavesdropping statute because the law exempts recordings made with "reasonable suspicion" the recorded party will commit a crime against the recording party on tape.
Wanger concluded the students didn't violate the law, but she noted that she didn't think the exemption had been tested in the courts.
Assistant State's Attorney Celeste Stack said it was unlikely criminal charges would be filed over the recording, because the statute of limitations has passed.
A second recording involving a cell phone took place in Wisconsin, which has less restrictive eavesdropping laws than Illinois, Protess said.
Protess said Serritella made the call to record the interview, and the professor said he was upset with the private investigator about that decision. Protess said he asked for the legal opinion after attorneys from the Northwestern University Law School's Center on Wrongful Convictions asked questions about the recordings. But that was about two years after the recording occurred, he said.
Serritella's lawyer, Thomas Breen, said he believes the recordings were legal, but his reasoning won't likely be printed on any brochures for the Medill School of Journalism.
"It was an exceptional, very dangerous mission these students were on," Breen said.
That "dangerous mission" troubles media ethicists.
An experienced investigative reporter might understand and accept the legal consequences and safety risks of secretly taping a convicted murderer as he or she is confronted with unpleasant allegations, but a student shouldn't be asked to take that assignment, said Stephen Ward, a journalism ethics professor at the University of Wisconsin at Madison.
Harvard University media ethics professor Alex S. Jones compared the situation to deploying student journalists to a combat zone.
"This is not student stuff," he said. "This is dealing with murderers."
Cubbage, the Northwestern spokesman, said that if Medill was allowing students to go into dangerous situations, "it is clearly a matter of concern."
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said any project as ambitious as this one merits the consultation of lawyers, but she disagreed on the danger factor.
"It's a really paternalistic attitude in a country where we expect young people to do all sorts of dangerous things," said Dalglish, a supporter of the program.
Medill Innocence Project students have spent the last 11 years fighting prosecutors for the freedom of prisoners, but the McKinney case has turned into an epic battle over the law and journalistic ethics. Knowing the project's audacious mission -- which brings it into frequent conflict with the state's system of justice and punishment -- Dalglish said she isn't surprised to see the project besieged.
"I'm actually surprised that something like this hadn't happened already."
Lisa Black contributed to this report.
-- Matthew Walberg and Dan Hinkel
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