November 10, 2009
New Developments in the Innocence Project Pushback in Illinois
The Circuit Court of Cook County held a hearing today on the state's request for documents from Northwestern's Innocence Project. The state earlier requested copies of interview tapes, transcripts and other witness related materials. It also asked for grades, grading criteria, expenses incurred, syllabus, emails, unpublished memos, notes, interviews conducted off the record and other investigative material.
The reasons for that request have now come out in a filing responding to Northwestern's motion to quash the subpoena. The state contends that one of the key witnesses that gave statements to the student team was paid for that testimony and that the witness used the money to buy crack cocaine. There are other allegations that witnesses may have spoken to each other about whether the student team was willing to pay for statements. The filing contends that the judge overseeing the case has to have all the evidence in the underlying action, including evidence of the student team's "bias, motive and interest."
I suppose the state sees this as just one back and forth in the pursuit of justice rather than mindlessly attempting to uphold a conviction. The evidence is the evidence and always subject to a credibility evaluation by the trier of fact. Does the state have to explain it's bias and motivation in the same case, or is that obvious? Illinois Supreme Court Rule 412 covers disclosure to both sides in a criminal trial. This action is an attempt to reopen a criminal conviction. The state is required to turn over exculpatory information in its possession. The Fifth Amendment, however, limits the state's ability to turn over evidence of culpability from the defense. As for what's not subject to disclosure:
(i) Work Product. Disclosure under this rule and Rule 413 shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the State or members of its legal or investigative staffs, or of defense counsel or his staff.
On the other hand, rule 413, which covers disclosure to the prosecution seems to limit the disclosure to what is relevant to the trial. However, subpart (e) broadens the possible materials available to the prosecution:
(e) Additional Disclosure. Upon a showing of materiality, and if the request is reasonable, the court in its discretion may require disclosure to the State of relevant material and information not covered by this rule.
The question now becomes is this underlying "work product" material relevant? The answers would be easier if this was a straight criminal prosecution. The context is muddy because the issues are not directly litigated between the state and a defendant. This has to do with evidence developed by third parties who would like it protected under the Illinois reporter privilege. The state's response to the motion to quash is here. It contains a basic statement of the facts and the procedural posture in the case. The Chicago Tribune has a story on today's hearing. More on this when the judge rules. [MG]