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Is Texas About to Kill an Innocent Man?
Wed Oct 26, 2011 12:24pm

Among the many gripes about journalism -- and the one that's certainly justified -- is that reporters are horrible at following up the stories they cover. The public learns about interesting events and people, then... poof. What happened to them?

This failing is partly due to the nature of news. Hit refresh every few minutes and something new is hot, while something else fades into obscurity. But it's also caused by an over-reliance on official sources. Unless the authorities are spouting off, even provocative subjects will often vanish from reporters' radar screens. Case in point: Can you remember the last news story you read about Casey Anthony?

When my editor at HuffPost invited me to write about criminal justice issues (a decision he surely regrets), I swore I'd post frequent updates. Yet, there's always been a reason to delay. I am guilty as charged -- until today, when I will make up for the rain-outs with a double-header. First, I'll catch you up on a Texas death penalty case that most mainstream journalists have missed, and next, on the continuing public controversy over the subpoena of my journalism students' notes and emails. Let's save for another day the question of why the classwork of college kids is more newsworthy than a condemned man's fight for freedom.

"Texas to Condemned Man: Execution First, DNA Later"

On October 4th, I wrote about the latest outrage in the case of Hank Skinner, a resident of Texas' Death Row. Although Skinner recently won his case before the U.S. Supreme Court and in the Texas legislature -- giving him two opportunities to ask for DNA tests that could prove his innocence -- he still faces imminent death by lethal injection. That's because a Texas judge, indifferent to Skinner's requests to scientifically scrutinize untested crime scene evidence, has set his execution date for November 9th -- two weeks from today.

Believing this wouldn't really happen, even in Texas, I expressed my optimism to one of Skinner's lawyers at a recent benefit for the Southern Center for Human Rights. The lawyer assured me that Texas was dead serious. He had asked the Texas judge for a stay of execution but, having heard nothing, was heading to Amarillo to argue the DNA motion in federal court. If the federal magistrate defers to the state courts, he will be back in the Panhandle to ask a judge to apply the Texas statute that mandates DNA testing in cases like Skinner's. Unfortunately, that would be the same judge who signed Skinner's latest death warrant. So goes the ping-pong life of a death penalty lawyer.

Knowledgeable sources in Texas tell me that Skinner's chances will plummet if he loses before the lower court judges. The Texas Court of Criminal Appeals rarely sides with criminal defendants (Skinner already has lost there three times), and the U.S. Supreme Court has returned Skinner's case to the lower courts.

That would leave it up to Texas Gov. Rick Perry, who was lustily cheered by Republicans for his state's breath-taking pace of executions. But even if Perry intervenes simply to prevent Skinner's death from becoming a campaign issue, the most he can do under Texas law at this point is grant a 30-day reprieve.

Sensing the urgency, Skinner's wife, Sandrine, a French national, has booked a flight from Paris so she can be near her husband in what could be his final days. Skinner's daughter, Natalie, will be joining them from Virginia, the state where her father was raised.

They have posted a petition imploring the local district attorney to release the evidence for testing. Since the cost of the tests will be borne by the defense, there is no compelling reason to let the evidence sit in storage. Not when a man's life hangs in the balance.

"How F***** Up Is This?"

When I wrote on September 21st about Cook Co. State's Attorney Anita Alvarez's subpoena for the written work of my journalism students, the news peg was a judge's ruling that 500 or so emails must be turned over to the prosecution. The decision seemed bizarre since the emails did not demonstrate the innocence or guilt of the prisoner whose case was before the judge, and the messages had not been shared with the defense lawyers in the case.

I wondered aloud on the 21st whether the university would appeal the judge's ruling. It did not. Fine with me.

While I believe the university would have won, the fight would have been time-consuming and the prisoner, Anthony McKinney, has already been locked up for 33 years for a crime I believe he did not commit. Let's finally get him the hearing on the evidence uncovered by the students. Enough of Alvarez's legal sideshow and the media circus that has accompanied it.

Enter Michael Miner, a columnist for The Reader, Chicago's heralded alternative weekly. "I'm reading David Protess's old e-mails, the ones from 2005 through 2007..." Miner began his October 20th missive. "The e-mails are inconvenient facts," he continued. "Inconvenient to Protess, that is."

Miner, who hasn't been in the news business since the Chicago Sun-Times showed him the door in the 1970s, had a revelation about the inconvenient messages: They proved that my journalism innocence project had collaborated with the law school's innocence project to free an innocent prisoner. Stop the presses!

More flawed than Miner's news judgment was his conclusion that my students lacked the proper distance from McKinney's legal team. "[I]t's not the way journalists are supposed to act," he scolded. But in making this claim, Miner blissfully ignored the hundreds of emails that had been exchanged long before the law school began representing McKinney.

It's odd that Miner would miss this fact since he was aware that the students' investigation of the McKinney case was launched in 2003, continued through 2004 and culminated in 2005. What he apparently didn't realize was that McKinney was lawyerless during this period, and that every major investigative finding -- the recantations of the State's star witnesses, the confession by an alternative suspect and the corroborated statements of an alibi witness -- was unearthed solely by the journalism students. Oops.

It's revealing why Miner stumbled over himself, like the person who drops his keys in the dark only to look for them under the nearest light. The answer: He got used. Badly. Miner's primary sources included an aide to lame-duck Medill Dean John Lavine, and Anita Alvarez's prosecutors, whose court filings Miner dutifully linked to without referencing the considerable public record that contradicts their claims. (The previous week, Miner had been tipped by the State's Attorney's Office to a scoop about a former student who'd been accused of plagiarism. What does this say about Miner's independence from prosecutors? And don't prosecutors have something better to do? Like fighting crime?)

Miner also didn't bother to interview the directors of other journalism innocence projects that have sprung up across the country. Supervised by journalism instructors, undergraduates at the University of Missouri, Brandeis University and the University of Montana actively work with law students and faculty. While these projects sacrifice a dose of journalistic autonomy, the upside is a rewarding educational experience about journalism and the law.

Unlike Miner, these budding reporters are advocates for the truth, drawn to journalism for its higher calling: to right wrongs and correct injustices while informing the public of newsworthy events. Sure beats writing weekly poison pen columns for forty years.

  • DNA at center of Texas execution caseBritta, Tue Oct 25 10:31pm
    DNA at center of Texas execution case Published: Oct. 25, 2011 at 10:46 AM AMARILLO, Texas, Oct. 25 (UPI) -- A Texas death row inmate's request for DNA testing should be rejected because he's failed... more
    • Is Texas About to Kill an Innocent Man? — Britta, Wed Oct 26 12:24pm
      • Hank Skinner wins stay based on DNA evidenceBritta, Wed Nov 16 9:50am
        Hank Skinner wins stay based on DNA evidence By Gloria Rubac Published Nov 12, 2011 11:24 AM Bulletin: As this paper goes to press, on Nov. 7, the Texas Court of Criminal Appeals stayed the execution ... more
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