Ethics and Freeing the Unjustly Convicted: A Utilitarian Controversy in Illinois

Northwestern University journalism professor David Protess and his student reporters have been carrying out a heroic and aggressive project aimed at rescuing innocent residents of Illinois’s death row. It was Protess’s Medill Innocence Project that played a major role in influencing former Illinois Gov. George Ryan’s decision to halt all executions. Now, however, the Innocence Project’s methods are now under attack by its own university and Cook County prosecutors, who say the students crossed legal and ethical lines while investigating a decades-old murder.

Prosecutors claim that some of Protess’s students used surreptitious taping in an investigation, secretly recording a suspect in violation of Illinois law. The students interviewed a man they thought might be the real killer in a 1978 crime that sent convict Anthony McKinney to prison. The man being interviewed had previously been convicted of another murder, and the Innocence Project students confronted him with audio accounts from people who blamed him for the crime McKinney was convicted of committing.
One student wore a wire. The Innocence Project’s private investigatorlistened to the interview in his car, and started recording the conversation.

Northwestern has hired a former U.S. attorney to look into the project’s investigation of the case, as well as other potential ethical violations by Protess and his students. Protess argues that the recording did not violate state laws, because the prohibition of taping includes an exception: if the recording is deemed necessary to protect the recording party when there is “reasonable suspicion” that a recorded party will commit a crime against him or her, the law may permit it. The Innocence Project’s status at the college is endangered by the controversy, as well as its mission.

What’s going on here?

Answering that question requires untangling issues of law and ethics. A school cannot support a student project that involves a violation of the law, no matter how noble the project’s objectives. This is exactly the kind of crusade that triggers an extreme utilitarian mindset, the classic case where the ends are seen to justify the means, even if the means are illegal. After all, the goal of the Innocence Project is to set innocent men free, and ensure that the real offenders are caught and punished. The point at which an objective may justify otherwise wrongful acts can be debated, and will be, for eons. In the United States, however, the philosophical point is settled: our culture rejects using illegal means to seek justice, as a contradiction in terms. If the students broke the law to prove McKinney innocent and violated another man’s rights in the process, that is unethical.

Protess’s defense may be successful in getting his students off the hook, but it appears to be bootstrapping of the most egregious kind, and therefore intellectually dishonest. Clearly, the exception for secret taping when one suspects one is going to be the victim of a crime was aimed at investigations in which the recording can prove spousal abuse, housing discrimination or other crimes in situations where the purpose of the recording is to catch a perpetrator in the act. Most states have similar provisions, though better written ones. The Innocence Project is arguing that the exception should apply any time an individual intentionally confronts a potential suspect who has a record of violence, since such an individual is always a threat to harm the interviewer. This interpretation would mean that the law could never apply any time a former felon, a suspect in a crime of violence, or Sean Penn were being interviewed in Illinois. It seems clear that the real purpose of the Innocence Project taping wasn’t to ensure the safety of the students, who could have protected themselves by not doing the interview at all, but to implicate their target suspect.

Even if the secret taping was legal, as it would be in most states, such conduct is usually unethical. It is dishonest, of course, and inherently unfair. It violates the Golden Rule. Our culture puts secret recording in the same ethical category as lying, breaking a promise or reporting a family member for committing a crime–generally unethical, except in extraordinary circumstances when it is outweighed by a more important ethical principle. This is the position taken by the Code of Ethics of the Society of Professional Journalists, which states: “Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public.” In other words, the method may be justified as a last resort, not as a general practice, and only when the results obtained are “vital.”

Like a lot of ethics code provisions, in journalism and elsewhere, this one is so subjective that it teems with wiggle room. What constitutes “vital”? When is it certain that open methods won’t yield the same information? Do they have to be tried first? If the secret taping doesn’t uncover anything, is it then unethical? Is it only ethical if it works, and if so, isn’t that consequentialism—judging the ethical nature of an act by its eventual results?

Sure—getting information that could free an innocent man could qualify as vital and necessary, if it was legal. This incident has to be justified by not only with a debatable exception to an ethical principle, but a questionable exception to a legal prohibition as well. This doesn’t even take into consideration the responsibility deficit in evidence when a university-sponsored project sends students into interviews where they are in danger of being attacked by convicted murderers.

Protess’s Innocence Project shows all the signs of a passionate mission for good that has reached a stage of self-righteousness where it is too willing to cut ethical corners and employ rationalizations. It appears to be so dedicated to its purpose that “the ends justify the means” now seems fair and reasonable. This is a dangerous state of mind for anyone; it is particularly ominous when it is being taught to students.

If the Innocence Project is going to go forward, it must re-establish clear and well-reasoned  legal and ethical boundaries for its investigations.


2 thoughts on “Ethics and Freeing the Unjustly Convicted: A Utilitarian Controversy in Illinois

  1. And isn’t this the germ from which terrorism is eventually born?

    “My cause is so just, and so great, that cultural, legal, and fairness rules do not apply?”

    “My service to my cause overrides the law, the culture, our very sense of decency and fairness. But that’s okay, because my goal is just.”

    Where have we heard that before? It doesn’t matter if it’s the Innocence Project, the IRA, the KKK or Muslim extremists, the rationalization is basically the same.

    And it’s wrong.

    And isn’t it true that thousands of felons are not convicted because of the “technicalities” that are enforced to protect the innocent? We as a nation have lived with and argued this point for generations. And still, it seems, we lean toward protection of the defendant with the “reasonable doubt” premise. (The rights of the victim are a separate issue, and not to be dealt with here. I’ll wait for Marshall to write on that one.)

    I am pleased to see unfairly convicted persons eventually go free because the advent of
    DNA technology has enabled additional investigation into old cases.

    But I have to agree here: the cause cannot be greater than the law, the culture, or the systems that drives them.

    Teach students that their cause overrides law, ethics, and honesty and you have chaos in the making.

  2. This should be treated like police corruption. You wouldn’t cut a police department. Fire everyone and bring in a new group to do their jobs. Wait, that doesn’t happen in police corruption cases? Pretend I said “how police corruption should be treated.”

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