Friday, April 08, 2011

David Protess Responds to Critics

More on the David Protess case can be found in Michael Miner's Chicago Reader article and his follow-up blog.

Michael Miner makes one serious error in this article: claiming that Northwestern administrators, after losing confidence in Protess' veracity, had "no choice this spring but to remove him from the classroom." In fact, they did have a choice. According to the faculty handbook, they could have let him teach, or they could have filed charges of misconduct against Protess before a faculty committee and then show an "immediate harm" to students in allowing him to teach. Administrators instead chose to suspend Protess without due process, and they violated their own university rules. Administrators are not the gods of the university, empowered to toss aside any tenured professor they have lost confidence in. The administration must prove very serious misconduct in order to suspend or fire a professor, and so far Northwestern officials have alleged very little of significance and proven absolutely nothing. Perhaps that's why they refuse to provide Protess with the due process he is guaranteed--because administrators know they have nothing that can justify what they have done.

Meanwhile, Protess himself wrote a response to critics in a letter to alumni:

Dear Medill and Innocence Project Alums,

On April 6, a spokesperson for the university informed the public that Medill Dean John Lavine would tell the faculty that afternoon why the dean had suspended me from teaching in Spring quarter. Dean Lavine informed me in advance by email that I would be denied the opportunity to be present at that meeting to tell my side. I also have called for the administration to make public its report about my project as well as another report by a junior faculty member who shadowed me -- at the dean's instigation -- for almost two years. Both requests have been rejected.

I am therefore left to respond to a news release by a university spokesperson You deserve a more complete explanation, particularly in light of your outpouring of support the past few weeks, and I will provide it if the dean ever fulfills his obligation to transparency. Meanwhile, this response will have to do.

The spokesperson's news release -- issued 48 hours after the American Association of University Professors (AAUP) launched an investigation into the dean's violation of rules for suspending faculty -- is filled with blatant distortions of the truth. I will reply to each of the main allegations in his release.

1. The spokesperson: "Protess...knew from the very beginning" that he had "authorized the release of all student memos to Mr. McKinney's counsel."

The facts:

The university knew from the very beginning that I had provided McKinney's lawyers with the evidence in the case. On November 19, 2008, six months before the subpoena, I wrote a story for our Web site describing that evidence -- most of which was in the form of student memos. Here's what I wrote: "We shared the evidence in 2006 with lawyers and law students at the Center on Wrongful Convictions at our law school's Bluhm Legal Clinic.".My public statements about the collaboration between my innocence project and the law school's were well known to the legal team when they began fighting the subpoena in June of 2009. The original Web posting is still up. You can find it at . Regrettably, the university spokesperson is now blaming me for matters communicated to the university more than two years ago.

2. The flak: "The review uncovered numerous examples of Protess knowingly making false and misleading statements to the dean, to University attorneys, and to others."

The spokesperson:

There is an important distinction between knowingly making false statements and recollections that sometimes prove to be inaccurate. Here is the first of many examples of this distinction: On September 14, 2009 a lawyer for the university reported that she had spoken with McKinney's lawyer, Karen Daniel, and indicated that "she has a significant amount of materials from the [Medill] investigation, including videos, transcripts and student memos..." The email continued: "If that's true, it may constitute a waiver..." This was indisputably the first time that the issue of a waiver of journalistic privilege had arisen -- four months after the subpoena was served. I replied by email the same day: "As for Karen Daniel, I asked her long ago what she'd kept, and she told me she only had the videos, audios and transcriptions from the interviews....I said it had been several years and I couldn't remember...." [Italics added.]
At this point, when my memory diverged from McKinney's lawyer, it was incumbent on Northwestern's legal team to conduct computer imaging to find the truth. The university blundered by waiting ten months to do the imaging, and now has decided to deflect attention from themselves rather than accept responsibility for their failure to act.

3. The spokesperson: "[I]n June 2010 the University discovered that there were many inconsistencies emerging between Protess' representations and the facts."

The facts:

Since I have not been given the opportunity to review and reply to each of these "many inconsistencies," I can only generally acknowledge that they did occur. However, none was intentional. I was being asked in 2009-10 to recall events from the McKinney investigation, which we had conducted from 2003-06. We had undertaken numerous investigations in the intervening period with the sharing of evidence varying from case to case. Moreover, most of the memos in McKinney were shared with the Center in 2005-06, a time when my wife was being treated for metastatic breast cancer. My thoughts were not focused on how many student memos were given from my innocence project to another innocence project, so I relied on my best memory. Unfortunately, my memory often failed.
On October 10, 2010, several months after the "many inconsistencies" were identified, Northwestern's General Counsel Thomas Cline reached this conclusion about the problem in an email to the dean and me: "I recognize that it is often difficult to recall fully and accurately matters that occurred several years ago. It is now apparent, based on what we learned from the Center on Thursday, that some of your statements and recollections regarding materials published to the Center may not have been completely accurate." [Italics added.]
I couldn't agree more. The university flak's statement, a desperate effort to publicly justify my suspension by the dean, is fundamentally at odds with the private conclusion of the head lawyer for the university.

4. The spokesperson: "As just one example [of false information], in December 2009 Protess sent them a falsified communication in an attempt to hide the fact that the student memos had been shared with Mr. McKinney's lawyers."

The facts: While this allegation sounds sensational, the reality is quite benign. First, out of more than a thousand email exchanged in the McKinney case, only one part of one message has been questioned. Second, no one changed the wording of that email by adding or substituting language. Rather, a clause within a single sentence was redacted. Third, the clause that was redacted was inaccurate. That is, it was redacted so university lawyers would NOT be misled. Fourth, the lawyers were informed at the top of the message that a portion had been redacted. Fifth, I explained all this to the three former prosecutors who investigated my innocence project at the university's behest. They didn't care about the truth.They had an agenda from day one: to shift blame away from the university lawyers for not imaging the computers sooner, and from the law school that destroyed most of the documents I gave them.

5. The spokesperson: "He caused the University to take on what turned out to be an unsupportable case..."

The facts: If the subpoena case is "unsupportable," why is the university continuing to fight it? In truth, my students' memos were a fraction of the documents demanded by prosecutors. The other records include students' notes, binders, summaries, email and grades, reimbursements for travel expenses, as well as my syllabi and evaluations of students' performance. The fight goes on, both by my lawyers and the university's, because this cause transcends reporting memos. It involves a fundamental infringement by the State on the autonomy of the university. To suggest the subpoena would not have been worth fighting simply because more memos went to the Center than I recalled reflects the lack of principle that has been the hallmark of the university's actions in this matter.

Finally, I could not help but notice that the spokesperson's statement failed to mention the plight of the most important person in this sideshow: Anthony McKinney. An innocent man, Anthony has been locked up for more than three decades for a murder he did not commit. I am proud of the many project alums who worked tirelessly to uncover evidence of his innocence, and of the lawyers who have bravely pursued his cause. It is a shame that a university flak, and the dean of a once-proud journalism school, have chosen to join prosecutors in compounding one injustice with another.

I have hired lawyers at great personal expense to protect the journalistic and privacy rights of project alums while turning over 26,600 "hits" from my personal computers to the university to expedite the process of securing justice for Anthony McKinney.

Beyond that, I will continue to respond to the university's smear campaign and will always be available to answer your questions about this case.




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