In the blood-sport that is capital litigation, ends often justify the means. The fight to save a client’s life can yield conduct that lawyers would not otherwise condone. And the state, as always, has the means, opportunity and motive to engage in strategic deception, as in all cases. The truth is that though we call trial a search for the truth, the truth is often not told.
Enter the journalists, those presumably objective souls unbeholden to anyone. Enter David Protess, recently resigned from the Medill journalism school at Northwestern University. He was forced out of the university after prosecutors in Cook County, Illinois, started raising questions about his methods. If those prosecutors applied the same standards to their own conduct that they insist be applied to Protess, they ought to hang themselves from the highest trees they can find: call the site of those noose-laden trees Protess’s Field.
Protess is an investigative journalist who cut his teeth covering flaws in the Chicago criminal justice system for Chicago Lawyer magazine. He then set up shop at the Medill journalism school, where he founded the Medill Innocence Project. He and his students broke stories that led to the release of at least a dozen men from prison, five of whom were on death row. He was instrumental in raising enough questions that then-governor George Ryan of Illinois put a moratorium on Illinois’ use of the death penalty.
But he was forced out of Northwestern University this year because his methods apparently did not pass the tests of journalistic orthodoxy the journalism school’s dean, John Lavine, insisted upon. Would that Dead Lavine cared as much for the truth as he does for the school’s image. And would that the Supreme Court would apply such a refined, one might even say prissy, sense of ethics to law enforcement agencies throughout the country.
Protess and his students investigated cases they believed to be based on untrue evidence. In the pursuit of truth, some students from time to time misrepresented who they were. In one instance, a student claimed to be a census worker. In another case, a student claimed to be a power company worker. This outraged the Cook County prosecutor’s office. But that protest rings hollow: law enforcement routinely engages in strategic deception to get the information it wants. The world is chock-full of confidential informants pretending to be friends of those targeted for investigation, but all the while wearing a deadly wire transmitting fatal truths. Let me see if I get this, Goliath is complaining that David resorts to the same methods?
The prosecution does appear to have the better argument as regards the journalistic privilege. I am not fan of press shield laws, permitting lawyers to claim as privileged the sources for their stories. It is too easy for scoundrels to hide behind a cloak of anonymity, or for professional politicians, like Scooter Libby, to use the press as a weapon. When the Cook County prosecutor’s office sought to obtain information from Medill about student investigations, the school dug in, claiming privilege. It now turns out the privilege was almost certainly waived because the school shared its files with counsel for th defense. Protess unconvincingly claims a failure of memory on this topic.
But forcing Protess out of the J-School for these quotidian sorts of issues – issues that arise daily in law enforcement circles, is wrong. Police officers hide all sorts of information from the public, and defense counsel, claiming law enforcement privilege. Police officers are trained to lie to get at the truth. Officers routinely resort to deception as an investigative technique in myriad ways. Do we tilt the playing field too much in favor of government by insisting that it can be investigated only my use of the most rarefied means?
The Medill school is one of the nation’s leading journalism schools, or, at the very least, it was so, once upon a time. Now it looks like a limping giant, adept at turning out students who can parse a press release, or fire off a snappy caption to someone else’s photograph. But when it comes to the gritty work of discovering difficult, and often uncomfortable truths – we kill innocent people in this country and care not a whit about it – the school gets all warm and fuzzy. Dean Lavine wants to neuter what was once a tiger and turn it into a simpering pussy cat. To what end? Certainly not the truth.
Shame on Medill. Perhaps shame on Protess, too. And certainly shame on the courts of this nation for permitting police officers to use deceit in the name of justice. We get the law enforcement we deserve, and, in the case of police deceit, we deserve lies because we tolerate them. What a pity Northwestern is now complicit in this scummy enterprise.