Soon to be 50-year-old Anthony McKinney will wait behind bars another two months as lawyers representing Northwestern’s Medill Innocence Project — which is attempting to exonerate McKinney for the 1978 murder of Donald Lundahl – prepare to respond to new evidence brought forth by the Cook County state attorney’s office to support its subpoena of documents including grades and course syllabi from the students and professor involved in the Innocence Project.
The state’s attorney office filed a new motion on Tuesday suggesting a private investigator working with the Medill Innocence Project may have paid off a witness to provide exculpatory evidence for McKinney’s case, who was convicted in 1978 of killing a security guard in the Chicago suburb of Harvey.
But the hearing to decide whether the school will be forced to submit the grades and course documents of students was postponed until January 11, 2010.
University attorney Dick O’Brien was given a postponement because he said he was not prepared to respond with oral argument or written response to the state’s brief. O’Brien said the state had said it would file the brief before the hearing to give his team time to prepare a response. Instead, prosecutors filed the motion 15 minutes into the scheduled hearing, attributing the delay to computer problems.
“As it turned out, events were such that it was not filed until today which, given the fact that it was 30 pages, made an oral argument today impractical,” said O’Brien, whom Cook County Judge Diane Cannon criticized at the beginning of the hearing for a formatting issue in his documents and for submitting a reply brief that was “dripping with sarcasm” and which Cannon characterized as editorial.
The state’s motion alleges that questions of credibility in the Project’s witness accounts bolster their case to have the court review students’ grades, notes, unpublished recordings of witness interviews, course syllabus, and e-mail exchanges between David Protess and his investigative journalism class on the Innocence Project case to check for signs of bias towards McKinney that might have skewed the evidence they “created.” Specifically, the motion claims that the way the students conducted their investigations and the fact that there were not any newspaper stories about their findings until two years later proves that they are not journalists, and therefore their materials are not protected by the Illinois Reporter’s Privilege.
Anthony Drakes, one of the Project’s witnesses and alternative suspects in McKinney’s case, was taped in an interview saying he was present during the murder and that McKinney is innocent. Drakes said to the camera at the end of the interview that he was not given any sort of compensation for making the statement. The state’s motion said Drakes claimed he asked the students for compensation before the interview and they denied his request, but one student “flashed a wad of cash toward” him.
Drakes recanted this video statement during an interview with the prosecutors and the new motion cites Drakes as saying a detective gave extra cash to the cab driver to give to Drakes, who told the state he bought crack with the money.
“In light of this record,” the motion states, “the State has a duty to determine whether the money given to the cab driver and then to Tony Drakes was given in exchange for Drakes’ affidavit.”
Protess and former student on the McKinney case, Evan Benn — who said he paid the cab driver to send Drake back to his home before curfew — described the motion’s claims as “absolutely false.”
The motion also contained an interview with Francis Drakes — nephew of Tony. In the interviews, Francis Drakes recanted an affidavit he had given to Medill students and signed in 2006 in which he stated that his uncle Tony and a friend Michael Lane came home on the night of the shooting and admitted their involvement. He was only eight at the time of the murder. Francis also claimed that the female Medill students who recorded his affidavit “flirted with him and flattered him,” and that “he made up the story for the female students from the school.”
“Basically I’m characterizing this brief as nothing more that the continuation of the state’s smear campaign against my student journalists, who work so hard on this case, with their only goal being to find the truth,” Protess said outside the courtroom.
But the state’s attorney office denies the presence of such motive, highlighting in the motion past cooperation with the Innocence Project on wrongful conviction in the post-conviction petition of Thaddeus Jimenez, who was exonerated in May.
Similar subpoenas have bugged the Innocence Institute at Point Park University in Pittsburgh. According to its director Bill Moushey, the judges in his cases have predominantly ruled the documents subpoenaed to be irrelevant to the cases.
“In all innocence projects, we have been the subject of situations where the government also has tried to attack the messenger,” Moushey said.