” The United States Attorney [a prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

- United States Supreme Court Justice Sutherland’s majority opinion in Berger v. U.S., 295 U.S. 78, 88 (1935)

Imagine you have just spent tens of thousands of dollars to send your college-aged student to a prestigious university.  He/she is pursuing a degree in journalism, and received an “A” in one of their classes which involved investigation of the case of a man convicted of murder and serving time in prison.   Now a state prosecutor wants to subpoena records pertaining to your student’s grade in that class, as well as their private emails, in order to see if they possibly received a high grade as a result of being pressured to find evidence of the convicted man’s innocence.

Unfortunately, this is a real case, and the potential consequences could have a very chilling effect on the future of the privacy students have in pursuing an education of their choosing.

Professor David Protess of Northwestern University’s  Medill School of Journalism established the Medill Innocence Project in 1999.  That project has investigated over a dozen cases in Illinois since that time, which has  resulted in the exoneration of eleven men convicted of serious crimes, including one man that was sentenced to death for a murder he did not commit.  As a result, former Republican Illinois Governor George Ryan declared a moratorium on the death penalty, and commuted the sentences of all Illinois death-row inmates in 2003.  Moreover, the Illinois Legislature has payed-out over $10 million dollars in reparations to those who were wrongfully convicted, all of which served lengthy prison sentences as innocent men.

In an investigative journalism class that serves as an adjunct to the program, Professor Protess gives students a project case to research in order to inquire whether the evidence that was used to convict the person prosecuted for the crime was accurate and valid.  The students then review the case file,  interview people involved with the case, and look at how physical evidence was tested in order to determine if the process was fair and just.  One of those cases revealed serious doubts as to the validity of the evidence used to prosecute and convict a man back in 1978.

Now Anita Alvarez, Prosecutor for Cook County (Chicago), has to reply to the petition filed by the Medill Innocence Project on behalf of the man serving time for the crime.  In response to this legal imposition placed upon her office, Alvarez also has filed a subpeona asking for the grades and the private emails of the students who participated in this investigation, as well as Professor Protess’ syllabus for the class.  One can fairly glean from her action that Ms. Alvarez has no interest in her duty to seek justice nor the truth, as stated above by Justice Sutherland in the Berger case.   Instead she is attempting to intimidate the university, the professor, and it’s future journalism students.

Frank LoMonte, executive director of the Arlington, Va.-based Student Press Law Center, said it best. “Background material about the investigators [is not] legally relevant to guilt or innocence. It is worrisome that the response of the justice system is not to interview the witnesses, but to investigate the investigators.”  This is particularly magnified by the fact that these were college students engaged in a class project to learn about investigative techniques.  Unfortunately, they are receiving a lesson in the midguided and malicious actions of an individual who is othewise held in high esteem as part of this ostensible system of justice.

If you have not personally had the displeasure of battling people who sit in a position of enormous power, and then utilize their office and the law in order to skirt their legal duties to pursue both justice and the truth, you have not seen the legal system from the inside.  I have been witness to this behavior.  And it is often every bit as disturbing as some of the people it prosecutes. 

When that sword in Lady Justice’s right hand is used to slay the innocent, and those who only seek the truth, something has gone horribly astray in the justice system.