Updated 4/6/11 10:55 p.m.: Northwestern University accused Medill professor David Protess on Wednesday of misleading the school and the public about class documents that Cook County prosecutors subpoenaed in 2009.
A statement released by university spokesman Al Cubbage said a university investigation showed that Protess misrepresented how many documents he shared in 2005 with lawyers from the Center on Wrongful Convictions at Northwestern’s law school. The lawyers were defending Anthony McKinney — the subject of a Medill Innocence Project investigation. Protess struck back in a phone interview with North by Northwestern. He said he had long ago told the university that he couldn’t remember how many documents he had shared because he was preoccupied with a family member’s serious illness.
The statement said the investigation “uncovered numerous examples of Protess knowingly making false and misleading statements to the dean, to University attorneys, and to others.”
Protess accused the university of manipulating email correspondence, calling the statement “sinister stuff that they have come up with through selective quotes.”
Medill Dean John Lavine and Provost Daniel Linzer announced the university’s position in a meeting with Medill faculty Wednesday afternoon in Fisk Hall. A number of professors declined to comment after the meeting, and some left looking distraught.
The statement pointed to the allegations against Protess as the reason Lavine removed him from teaching an investigative journalism course spring quarter.
According to the statement, Northwestern began investigating Protess fall 2010, after McKinney’s defense produced documents that the professor said he had never shared. The documents comprised student memos from the Innocence Project’s 2003-2006 investigation into the conviction of McKinney, who was accused of slaying a security guard in 1978. Northwestern hired law firm Jenner & Block to conduct the investigation, headed by former U.S. Attorney Anton Valukas, a Northwestern Law alumnus.
The university pointed in particular to a message Protess sent Northwestern lawyers and Lavine in 2009. The message contained a forwarded copy of an email Protess sent to his program assistant in 2007 that said, “My position about memos, as you know, is that we don’t keep copies.” After searching Protess’ computers last summer, university investigators learned that the original 2007 email read, “My position about memos, as you know, is that we share everything with the legal team, and don’t keep copies.”
Protess confirmed that he changed the email when he sent it to the university in 2009, saying that the original wording did not reflect what he had meant. He accused the university of withholding the full context of the emails in its statement, saying, “That shows how desperate they are to defend their faulty position.”
Protess said that there were several memos he never shared with the defense because they contained personal information about students. In past interviews, students of Protess’ investigative journalism class have said that they traditionally turn in memos twice a quarter detailing their reporting. Protess said that these memos often contain students’ personal reactions to what they’ve seen. “We’re talking about documents, 95 percent of which are students’ subjective impressions of their field experience,” he said.
An email exchange indicates that lawyers representing the university knew as early as September 2009 that Protess and McKinney’s defense disagreed over how many documents were shared. Protess at the time claimed that he could not remember what documents McKinney’s defense received, one email said. He added in an interview Wednesday that he had worked on several other investigations between the time he shared the documents and the time lawyers questioned him about them.
Protess took a leave of absence this quarter and has begun work on a new Innocence Project independent of Northwestern.
See Northwestern’s complete statement below:
Northwestern University generally does not discuss publicly actions regarding its faculty and staff. However statements in the media by Professor David Protess and our desire to be as forthcoming as possible on an issue of great importance to the University, its faculty, our students, alumni and our community prompt us to make the following statement.
This afternoon Medill Dean John Lavine shared information with his faculty that explained his decision several weeks ago not to assign teaching responsibilities to Professor David Protess this quarter. Protess is on leave from both teaching and directing the Medill Innocence Project this quarter.
Lavine’s decision followed a thorough review by the University and its outside counsel, Jenner & Block, of the information provided by Protess to Lavine and University attorneys in connection with a court case and of the practices and procedures of the Medill Innocence Project, which has been led by Protess. The review 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.
Under Professor Protess’ supervision, student journalists working with the Medill Innocence Project investigated the murder conviction of Anthony McKinney from Fall 2003 through spring 2006.
In May 2009, the Cook County State’s Attorney’s Office issued a court-approved subpoena to Medill seeking 11 categories of documents relating to the McKinney case, including a request for memoranda created by students as part of their investigative journalism work on the case. The University began working on a way to respond to the subpoena completely and accurately and also protect our students, their privacy and journalistic independence.
To be responsive to the subpoena, Northwestern needed to be certain which materials could be protected by a claim of reporter’s privilege under Illinois law and not be relinquished to the State and what materials would have to be turned over because they had been published or shared with a third party outside Medill. University lawyers repeatedly made that distinction clear to Protess, and Northwestern relied on his representations, as the long-time director of the Innocence Project, regarding what had been shared outside Medill and for which privilege could therefore not be claimed. Based on the information provided by Protess, the University took the position that student memos were privileged.
However, in June 2010 the University discovered that there were many inconsistencies emerging between Protess’ representations and the facts. Mr. McKinney’s lawyers produced in court student memos they said were received from Protess or from the Medill Innocence Project at his direction – documents Protess had said were never shared outside Medill. As a result, it became clear that the position the University had taken in court concerning the students’ memos was not supportable. Additionally, Sidley Austin, the law firm representing Protess and the University, informed the court that statements it had previously made were not accurate and withdrew its representation of Protess. Northwestern then hired Jenner & Block to determine what had happened in the subpoena response process.
Jenner & Block scrutinized relevant material obtained from computer hard drives related to the McKinney matter and conducted interviews with individuals with first-hand knowledge of the conduct regarding the subpoenas in the case.
The review uncovered considerable evidence that Protess: authorized the release of all student memos to Mr. McKinney’s lawyers despite his repeated claims to the contrary; knew from the very beginning that doing so waived any claim of privilege; and repeatedly provided false and misleading information to the lawyers and the dean. As just one example, in December 2009 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. This communication included what Protess said was a copy of a November 2007 email, unredacted save for removal of “personal information,” that he had sent to his program assistant. The email copy he provided stated that: “My position about memos, as you know, is that we don’t keep copies….” However, examination of the original 2007 email, which was only recently obtained by the University, revealed that the original wording actually was: “My position about memos, as you know, is that we share everything with the legal team, and don’t keep copies….”
In sum, Protess knowingly misrepresented the facts and his actions to the University, its attorneys and the dean of Medill on many documented occasions. He also misrepresented facts about these matters to students, alumni, the media and the public. He caused the University to take on what turned out to be an unsupportable case and unwittingly misrepresent the situation both to the Court and to the State.
Medill makes clear its values on its website, with the first value to “be respectful of the school, yourself and others – which includes personal and professional integrity.” Protess has not maintained that value, a value that is essential in teaching our students. That is why Medill Dean John Lavine has assigned the course to another faculty member this quarter and Protess is on leave.
The Medill Innocence Project’s work and achievements have been instrumental in pursuing the truth and righting wrongs. Northwestern University and Medill are committed to this work and its continuance, and the investigative journalism class related to the Project is now underway for the quarter with new leadership.