Journalism Or Advocacy?
The question of whether members of Chicago’s media community are working as advocates or journalists may be making its way back to a courtroom.
Jamie Kalven, a founding member of an organization fiercely critical of the police, may be forced to testify about his coverage of the Laquan McDonald case. This coverage, defense attorney Dan Herbert claims, was based on confidential information that should not have been released to any reporters. The release of this information may have violated his client’s rights, Herbert has argued in court.
Kalven has stated he won’t reveal his sources, even if required to do so by a judge.
But here’s the problem. Kalven’s predicament is eerily familiar to other high-profile cases alleging police misconduct in which confidential information was released. Each of these cases bolstered a narrative of police misconduct. Chicago journalists appear palpably nervous about Kalven being called to testify.
Consider the background.
It was 2009 and Circuit Court Judge Diane Cannon was faced with a controversial decision.
Cook County State’s Attorney Alvarez had argued that students and a professor at Northwestern University’s Medill School of Journalism were not acting as journalists in their investigation of a wrongful conviction claim in which they argued a man named Anthony McKinney was falsely convicted of murder.
Reporters Committee for Freedom of the Press:
After examining the McKinney case, Alvarez accused Medill students of unethical practices such as paying for interviews and flirting with witnesses, leading her to subpoena all student materials related to the investigation - emails, notes, memos, grades and even grading criteria.
But it wasn’t just these possible transgressions that caught Alvarez’s eye, according to reports. Witnesses told Alvarez that some of the affidavits submitted by Northwestern investigators were not true.
National Public Radio:
But after the Cook County state's attorney's office started reinvestigating the case, prosecutors raised questions about the students' methods. "When we went out and interviewed these people, we were finding that they were telling us, you know, 'No, that's not what I said to them,' or, 'This is what they said to me, this is how that statement came about,' " says Cook County state's attorney Anita Alvarez.
Judge Cannon had to decide. Should Cannon grant a subpoena by then Cook County State’s Attorney Anita Alvarez demanding a vast body of documents and transcripts from students and a professor from Northwestern, or should she reject it because the students and professor were from a journalism school and were therefore protected reporter shield laws?
Despite a powerful backlash from the journalists, academics and activists, Judge Cannon ruled that Protess and his students were not working as journalists. She said they were working on behalf of defense attorneys, who just happened to be at Northwestern’s Law School.
From journalist J C Derrick
Cook County Judge Diane Cannon ruled the students had acted as “investigators in a criminal proceeding” when they collaborated with Northwestern Law students.
“In this case, the Medill students worked at the direction of Anthony McKinney’s attorneys, conducting interviews, gathering evidence,” Cannon said. “While a book may be written or an article published…the information is subject to the rules of discovery.”
The Alvarez subpoena became a nightmare for Northwestern. In gathering the documents, the school said they discovered that Protess was not telling the truth about his cases and that he had altered evidence submitted to the courts in the case. An investigation followed and Protess was ultimately prohibited from teaching at the school.
So in agreeing with prosecutors that Protess and his students were not in fact engaged in journalism, a major scandal at the school was uncovered, revealing a potentially chilling body of misconduct in the chorus of police accusers.
To this day, the Chicago media machine has refused to dig more deeply into this evidence.
Then another controversial case emerged in Judge Cannon’s courtroom.
In a criminal case against Chicago Police Commander Glenn Evans in which Evans was accused of misconduct during an arrest, attorneys for Evans called public radio station WBEZ reporter Chip Mitchell as a defense witness. Attorneys for Evans argued someone at IPRA, the agency that conducted the investigation against Evans, illegally released the confidential state police DNA report to Mitchell. The attorneys further argued that Mitchell mischaracterized the report as if it were powerful evidence against Evans.
Lawyers for Mitchell from the powerhouse law firm of Jenner and Block argued that calling Mitchell to the stand violated Mitchell’s rights as a reporter. But Judge Cannon rejected the argument, saying that she would not compel Mitchell to reveal his sources, but otherwise he had to testify.
The fact that the defense subpoenaed Mitchell to testify for their side and the ruling by Cannon suggests that both Evans’ defense team and the judge suspected Mitchell may have been acting as more than simply a journalist. Otherwise, why would he have been compelled to testify for the defense?
Just as Evans’ attorneys argued, Cannon ruled that the state DNA report, the one that was surreptitiously released to Mitchell, was not a smoking gun against Evans. Evans was acquitted on all charges.
Then came another bizarre media event.
Tribune writers Eric Zorn and Steve Mills published articles earlier this year in which they too released the contents of confidential documents in a high-profile case.
These were documents related to the infamous Anthony Porter exoneration in 1999. Zorn and Mills were among the first to cover the story, echoing Protess’ claims that Porter was innocent.
But over the years the Tribune narrative fell on hard times as evidence slowly emerged that the Porter exoneration was rife with suspicious activity, not the least of which was the means by which Northwestern investigators obtained a bizarre confession from Alstory Simon to the murders, a confession that paved the way for Porter’s release.
In the wake of this evidence, Cook County State’s Attorney Anita Alvarez re-investigated the case. After a year-long review, she released Simon from prison in 2014.
After he was released, Simon’s attorneys filed a $40-million lawsuit against former Northwestern Professor David Protess, his private investigator, Paul Ciolino, and Northwestern University.
As the case took shape and depositions began, Mills and Zorn suddenly announced “bombshell” evidence that they claimed bolstered Simon’s convictions for the murders after all.
But the problem with this evidence, a memo from a Cook County prosecutor, is that it was under a court protective order. It was not supposed to have been released to the media.
Here it was again, a confidential document released to the media to bolster an anti-police narrative.
Simon’s attorneys blasted the release of court protected materials and said the memo, like the state DNA report in the Evans case, did not vindicate the Simon conviction at all.
From their motion:
This Court must enforce its orders in order to prevent the parties and counsel from seeking to influence the jury pool by exploiting protective orders as both a sword and a shield in order to selectively release and discuss those pieces of information which they deem, rightly or wrongly, as supportive of their position.
The attorneys alleged that “media advocates” were working in support of the defense in the case.
From their motion:
…the intentional violation of the Court’s protective order in connection with the…memo, has revealed a calculated and stunning lack of respect for the Court’s authority, perpetrated by someone who was fully confident that Defendants’ media advocates would protect their identities, and cover-up their blatant disregard of the Court’s Orders.
"Media advocates”? Selectively releasing and discussing “pieces of information which they deem, rightly or wrongly, as supportive of their position?” “Media Advocates” who would protect identities and the blatant disregard of court orders?
Influencing the jury pool?
Doesn’t this sound eerily familiar to what defense attorney Daniel Herbert is suggesting in the Laquan McDonald case? Doesn’t it sound similar to Chip Mitchell’s reporting in the Evans case? Doesn’t it sound similar to Northwestern investigators hiding behind laws protecting journalists, then those investigators are accused of misconduct?
How does Kalven’s release of alleged confidential information fit into all of this?
Kalven is listed as a member of the Invisible Institute. The organization bills itself as conducting investigative reporting. But, according to their website, the institute is supported by prominent wrongful conviction law firms like Loevy and Loevy.
Calling oneself a journalist lends a lot of legal protections. But the question remains if Herbert’s claims pan out.
If they are true, how and why did Kalven get confidential information?