Sidley Helps Northwestern Journalism Students in Spat with Prosecutors
Prosecutors want a ton of information from Northwestern University journalism students who concluded, after three years of work, that a man convicted of a Chicago-area murder is actually innocent. The school has turned to Sidley Austin to fight prosecutors' requests for information.
The American Lawyer
By Zach Lowe
October 26, 2009
This article first appeared on The Am Law Daily.
Sidley Austin has a long history of collaboration with Northwestern University, and Richard O'Brien, a Sidley partner in Chicago, has defended media companies under the state's shield law for years. But the two lines of work have never crossed until now, as Sidley is representing Northwestern and several former journalism students who concluded, after a three-year investigation, that a man convicted of a 1978 Chicago-area murder is actually innocent.
The school retained Sidley to fight a rare request from prosecutors who want access to the students' notes, grades and other materials as part of the state's examination into whether the alleged murderer deserves a new trial, according to a Chicago Tribune report from over the weekend. O'Brien and the school claim the prosecutors' request would violate the state's so-called shield law, which protects media members, as well as privacy laws protecting student grades and records, according to the Tribune.
The school retained O'Brien when prosecutors initially subpoenaed the information earlier this summer, he says. The university's law school and its U.S. Supreme Court clinic have a long-standing relationship with Sidley, and the firm knew O'Brien was the right partner for this case because of his long experience defending media members and publications against shield law intrusions, he says.
O'Brien's involvement in media law began in the mid-1980s, when he and Sidley were the go-to counsel for the Chicago Sun-Times in defamation cases, Freedom of Information Act requests and other run-of-the-mill matters. Defending media protections under the state's shield law, enacted in 1982, became a part of his regular practice. (Fun Chicago trivia note: The firm switched over to the Chicago Tribune after a personnel move and had to drop the Sun-Times as a client, O'Brien says. "You can't represent both in this town," he says. "They are competitors.")
"Before Sept. 11, the law was trending pretty favorably toward the media" in regards to shield laws, O'Brien says. "Since then, journalists haven't fared as well," he adds, citing the infamous case of Judith Miller, the ex-New York Times reporter who served prison time for refusing to divulge the source of a leak about the identity of an undercover CIA officer.
The Northwestern case involves Anthony McKinney, a Harvey, Ill. man convicted of fatally shooting a security guard with a shotgun in 1978, the Tribune explains. The journalism students, working between 2003 and 2006, tracked down witnesses who placed McKinney away from the crime scene at the time of the shooting. They also re-interviewed the main eyewitness against McKinney, who recanted his story, the Trib says.
The school has freely turned over some records from student interviews with those subjects, including audio tapes. But prosecutors doubt the credibility of the interview process and say they cannot assess the new witness statements without understanding that process. And that entails getting their hands on the students' handwritten notes, the school's grading criteria, and even grades themselves, prosecutors say in court filings. In particular, students claim that prosecutors have implied that grades may have depended on whether students could turn up information on McKinney's possible innocence--an allegation the school and O'Brien vehemently deny.
In court papers filed last month, the school flatly claims prosecutors don't understand the scope of the state's shield law. Prosecutors argue it protects only the identity of confidential sources; the school says the protections clearly extend to reporters' notes and other items. The school also argues that prosecutors, in order to get around the shield law, must demonstrate that they cannot obtain the information they want from any other source. Prosecutors cannot meet that standard, the school argues, because they are free to interview witnesses and evaluate tapes of the interviews. Prosecutors disagree, saying they can't get the student notes anywhere else.
Prosecutors also have questioned whether the students even qualify as media members, an argument the school has scoffed at in court papers.
The next hearing on the matter is scheduled for Nov. 10, O'Brien says. He would not say whether the firm is handling the matter pro bono.
