Prosecutors in Cook County, Illinois, want answers about the students associated with the Medill Innocence Project at Northwestern University. I say, the state should get those answers, but only if it agrees to provide like information to criminal defendants seeking information about police officers.
Here is what is at stake. Students at Northwestern University's journalism school are pressing for a new trial for a man named Anthony McKinney. The students say they have developed information that McKinney is actually innocent of the 1978 murder of a security guard. The students have marshaled evidence sufficient to get the matter into a Cook County court, no easy feat.
Prosecutors have issued a subpoena for records relating to the school. The subpoena asks for records relating to the student's grades. grading criteria. class syallabi, expense reports and e-mail messages. All this information is necessary, prosecutors say, to determine whether, among other things, students had a grade-related interest in the outcome of their investigation. "Our position is that they've engaged in an investigative process," said Sally Daly, a spokesman for the Cook County State's Attorney's office, "without any hostility, we're seeking to get all of the information they've developed, just as detectives and investigators turn over."
This sounds even handed, but it is not. Virtually every state prohibits defendants from discovering the contents of a police officer's personnel records on the grounds of privacy. In Connecticut, for example, subpoenas for such information are routinely quashed; the requests are called mere fishing expeditions. A defendant seeking such information must make a particularized showing of need for the material. It is not enough to rely on such truisms as officers are engaged in the often competitive business of solving crime, and I therefore want to see what interest in the outcome officers had in this case.
The Cook County subpoenas of the students' information is just such a fishing expedition. Are Cook County prosecutors announcing by means of this enterprise that there will now be an open file policy regarding the personnel records of Chicago police officers? If that is the case, I am all in favor of it. I think that defendants should be able to learn what dirty linen is tossed onto the floor of investigating officers.
But what of the students' right to privacy under federal law? And what of a journalistic privilege?
I am no fan of a testimonial privilege for journalists. It is to0 easy for an unnamed source to use journalists for means fair or foul. Justice does not require that a journalist be able to shield his or her notes and or sources from scrutiny. If there is a claim of tortious conduct, then the tortfeasor ought not be able to hide his or her tracks. And if the investigative leads developed by a journalist are material to a court proceeding, their notes and sources should be discoverable. Even prosecutorial immunity gives way in those cases where a prosecutor steps outside her functional role as advocate to become an investigator.
The right to privacy enjoyed by students is a far different and more difficult issue. I distrust government, and believe its reach should be limited whenever possible. There is no cause for subpoenas of a student's grades or attendance records in cases in which the student has not put his or her credentials at issue. But here, where students seek to intervene in the criminal justice process by working at investigation of an actual case, it seems anomalous to permit the right to privacy to frustrate discovery rights.
So here's my challenge to Cook County: Open the files of all police officers on the demand of any defendant seeking discovery of an officer's employment history. If you are not willing to do that, withdraw the subpoenas for the Medill students. Doing anything else smacks of hypocrisy and a rank desire to intimidate students whose only crime is trying to do justice.