New Evidence About Old Suspect Disclosed in Anthony McKinney Case (June 23, 2010)
THE LATEST: "Fight still on over NU journalism students' notes" (The Chicago Tribune, June 24, 2010)
Newly Released Recordings Cast Further Shadow Over Murder Conviction
| For a complete list of documents and recordings, click here |
| For Media Coverage, click here |
The Anthony McKinney Case: A Profile in Injustice
By David Protess
November 19, 2008
Around 9:30 p.m. on September 15, 1978, Donald Lundahl, a white security guard, was sitting in his car in the far south Chicago suburb of Harvey when he was murdered at close range by a shotgun blast. Later that evening, one of the Harvey police officers who was called to investigate the murder noticed an African-American youth, Anthony McKinney, running down the street near the crime scene. The officer arrested Anthony, even though he possessed no weapon, signs of blood spatter or other physical evidence that would have predictably linked him to the brutal homicide.
Anthony, an 18-year-old Harvey resident with no history of violent crime, professed his innocence and explained that he was running from gang-bangers when the officer saw him. Lacking any direct evidence against Anthony, the Harvey police released him, though he remained a prime suspect. The authorities soon began questioning others about the crime, including another Harvey teenager, Wayne Phillips. Phillips eventually told police that he was an eyewitness to the murder, claiming that -- from 50 yards away -- he saw Anthony point the shotgun at Lundahl and declare, “Your money or your life.” Anthony then was re-arrested, and, after a lengthy interrogation, signed a confession (typed by police) admitting the crime and saying the motive was robbery.
At the trial, Anthony recanted his confession and swore that he was at home watching the Muhammad Ali-Leon Spinks heavyweight championship fight when the murder occurred, an alibi that was corroborated by his father. Anthony also testified that the confession had been coerced by the Harvey police. However, based on officers’ testimony that the confession was legitimate, and the testimony of the eyewitness, Anthony was convicted by a jury in the south suburban Markham courthouse.
Prosecutors sought the death penalty -- execution by lethal injection. Instead, Judge Richard Samuels sentenced Anthony to natural life in prison. His appeals were denied by the Illinois Court of Appeals and the Illinois Supreme Court.
Anthony McKinney today
Our Investigation
In the fall of 2003, my Investigative Journalism students began digging into the case, which initially had been brought to the attention of the Medill Innocence Project’s program assistant by Michael McKinney, Anthony’s younger brother. After more than three years of reporting, involving nine reporting teams, we became convinced that Anthony had been wrongly convicted and that several other men were responsible for the crime.
We shared the evidence in 2006 with lawyers and law students at at the Center on Wrongful Convictions at our law school’s Bluhm Legal Clinic. On October 29, 2008, the Clinic filed a Post-Conviction petition in the Circuit Court of Cook County seeking to vacate Anthony’s conviction or order a new trial. And, on Thursday, November 20, 2008 Maurice Possley's by-lined story about the McKinney case appeared in the Chicago Sun-Times.
The following is a summary of the Medill Innocence Project's investigative findings:
**In a videotaped interview, Wayne Phillips recanted his eyewitness testimony and claimed police beat him until he made up a story against Anthony McKinney. Phillips’ assertion was corroborated by Dennis Pettis, a 15-year-old resident of Harvey, who alleged in a videotaped interview that he was brutalized into making a similarly false statement against Anthony. (After testifying before a Grand Jury, Pettis went into hiding to avoid being forced to lie at Anthony’s trial.) In sworn statements, Phillips and Pettis also asserted they were offered money and other inducements in exchange for their incriminating statements.
**The original testimony of Philips and Pettis could not have been true. Both men had sworn they watched the Ali-Spinks fight at their homes until after the ninth round and later witnessed the shooting. But the official ABC-TV fight log showed they could not have arrived at the scene until well after Donald Lundahl had been murdered. Moreover, my students went to the crime scene and determined that it would have been impossible to discern any words, spoken or shouted, from 50 yards away on a busy street.
**A Harvey Fire Department document, while incomplete, indicated that paramedics were called to the police station during Anthony’s interrogation, and repeated attempts by law enforcement to corroborate Anthony's allegedly coerced confession were unsuccessful. Evidence that the two “eyewitnesses” were beaten has been provided by family members.
**The Harvey police detective who led the interrogation of Anthony and the questioning of witnesses, Coleman McCarthy, has been formally accused by Harvey residents of numerous incidents of brutality. McCarthy, who now is retired from the force, at one time faced federal criminal charges for civil rights violations in the beating of a suspect.
**Concerning Anthony’s alibi, my students interviewed two of the “gangbangers” who allegedly chased him on the night of the crime. Angry that Anthony had recently damaged their car, they admitted pursuing him after a chance encounter after the heavyweight fight. They further acknowledged halting their chase when they saw Anthony running towards police vehicles parked at the murder scene. One of the “chasers,” Darnell Fearence, has corroborated Anthony’s version of the chase in a videotaped interview and sworn statement – and claimed other men were responsible for the crime.
The Alternative Suspects:
Convicted killer Anthony Drake interviewed by
Medill student-journalists in
Swansea, IL on May 28, 2005.
**Seven current and former residents of Harvey have stated in recorded interviews that convicted killer Anthony Drake admitted to them almost thirty years ago that he was involved in the Lundahl murder, which he described as “an armed robbery gone bad.” According to these sources, including Leslie Washington, Robert Holmes and Charles Holmes, Drake also said that Anthony McKinney had nothing to do with the crime.
**After listening to several of the taped statements, Anthony Drake acknowledged in a videotaped interview in downstate Swansea, Il. in 2004 that he was "present" when the murder was committed and that Anthony McKinney was innocent. In the presence of my students and private investigator Sergio Serritella, Drake named the perpetrators, including two of his friends, Michael Lane and Roger (“Big Magooda”) McGruder.
**In a prison interview in 2005, Anthony Drake’s nephew, Francis Drake, stated that on the night of the crime both his Uncle Anthony and Michael Lane arrived home and admitted participating in the shooting. Francis has signed a sworn statement recounting this conversation.
**In a videotaped interview in Columbus, Ohio in 2005, former Harvey resident Dennis White stated he was present the morning after the crime when Anthony Drake and Michael Lane confessed their involvement to friends at a neighborhood playground.
**In a videotaped interview in St. Paul, MN. in 2006, William Hambrick, a first cousin of Roger (“Big Magooda”) McGruder, confirmed that McGruder told him on the night of the crime that he was present when Anthony Drake pulled the trigger on the shotgun that killed a man whom he later learned was the white security guard. Hambrick also signed a sworn statement recounting the conversation with his cousin.
In sum, the actual perpetrators were widely known at the time of the crime, yet law enforcement officials arrested, prosecuted and sought the death penalty for an innocent teenager who happened to be near the crime scene because he was being chased and needed their help.
Anthony McKinney currently is incarcerated at Dixon. Now 49-years-old, he has maintained his innocence for 31 years.
| "Alvarez should speed justice for McKinney" Chicago Sun-Times lead editorial November 21, 2008 "During her campaign for Cook County state's attorney, Anita Alvarez called the subject of abusive cops beating witnesses for confessions 'an issue we must stay on top of' and 'a top priority.' When Alvarez takes office next month, a test case will be waiting. Police brutality looks to have played a major role in Anthony McKinney's conviction for a 1978 murder.... David Protess, director of the Medill Innocence Project, calls McKinney's plight 'about the most tragic I've ever seen. That's saying something, as Medill students have been investigating cases for nearly 10 years, helping free 10 men from prison. McKinney's lawyers are seeking a new trial, a process that Alvarez could bog down if she wishes.... Dropping the charges against McKinney is within her power but, at the least, we are asking her to speed justice for McKinney. His attorney says she has been keeping the state's attorney's office aware of developments, so McKinney's case won't be a surprise. McKinney, serving life in prison, has spent almost two-thirds of his life behind bars. Alvarez should not needlessly delay his day of justice." |
Updated November 27, 2009
Late last year, Anthony McKinney's case was assigned to Judge Diane Cannon at the main criminal courts complex in Chicago. Judge Cannon promptly agreed to docket the case, meaning she found sufficient evidence for the post-conviction petition to be considered.
The state subsequently conceded that the evidence in the petition deserved a hearing to determine whether Anthony's 1978 conviction should be vacated or affirmed. However, prosecutors contended that much of the evidence developed by the Medill Innocence Project -- including the Ali-Spinks fight log and the claims of police brutality -- was not "newly discovered" and thus should be barred from the hearing. (Under Illinois law, evidence is inadmissible at a post-conviction hearing if it were known or reasonably could have been known by the defense at the time of the original trial.)
On July 7, 2009, Anthony's lawyers from the Center on Wrongful Convictions struck back, filing a brief challenging the prosecution's claim. Citing statutory and case law, the Center's brief asserted that "the state's objections to evidence directly bearing on [Anthony McKinney's] claim of innocence are inconsistent with the ends of justice." Judge Cannon is expected to rule in the fall on the scope of the hearing.
Meanwhile, the case has entered the "discovery" phase, where each side requests evidence possessed by the other. Beyond routine requests to Anthony's lawyers, prosecutors introduced a surprise into the proceedings. They subpoenaed Medill Innocence Project records, demanding access to the grades of students who investigated the case, course syllabi, unpublished memoranda, reimbursements for student expenses incurred during reporting, and e-mail communications, among other things.
With the support of Northwestern University, the Medill Innocence Project retained the services of Richard J. O'Brien and Linda R. Friedlieb of Sidley & Austin to quash the subpoena on the grounds of reporter's privilege, relevance and privacy. Their brief, invoking protections under the Illinois shield law for journalists and federal privacy law, was filed on August 13, 2009.
The state filed its reply brief on September 14, and Sidley & Austin responded on October 5. Judge Cannon set November 10 for oral arguments.
As prosecutors waged war with the Medill Innocence Project, Anthony McKinney began serving his thirty-first year behind bars for a crime he did not commit. If the state had gotten its way, he would have been executed long ago.
--David Protess
|
"Alvarez's Overkill"
Chicago Tribune editorial "In September 1978, Anthony McKinney was accused of gunning down a south suburban security guard. There was a witness: a Harvey teenager who told police he saw McKinney kill the guard. After a lengthy interrogation, McKinney signed a confession. He was 18. He has been in prison ever since. More than 30 years later, there's reason to suspect that McKinney was wrongly convicted. The main witness has recanted, alleging he was beaten by police until he fingered McKinney. Two other witnesses say they can confirm McKinney's claim that he had nothing to do with the killing. Another man said he was present during the murder and that McKinney wasn't. That information was uncovered not by prosecutors or defense attorneys, but by student journalists at the Medill Innocence Project at Northwestern University. Their information has prompted a hearing before a Cook County judge. Northwestern says it has turned over copies of all the audio and video recordings the students made in their investigation, and other materials related to on-the-record interviews. But Cook County State's Attorney Anita Alvarez wants much more. Her office has subpoenaed students' grades and the grading criteria for their course. Prosecutors want the class syllabus. They want e-mails that students sent to each other and to their professor, David Protess of the university's Medill School of Journalism. They want records of the expenses that students incurred during the inquiry. They want unpublished student memos and more. On Monday, Alvarez defended the subpoena. 'If you're going to put yourself into the role of an investigator, then you need to turn over whatever your notes are,' Alvarez said. Prosecutors argue that they need all of the information to weigh the credibility of witnesses and the accounts they provided. In a brief filed with the court, prosecutors said they need the syllabus and grading criteria to learn, 'for example, if students are told that they will get an A-plus if they get exculpatory evidence ...' Say that again? Who's on trial here? The prosecutors are overreaching, wielding this subpoena to send an unsubtle message to these students and other journalists: Back off. Don't make waves. You're embarrassing us. The university rightly argues that the students and their professor are journalists and they have the protection of the Illinois Reporter's Privilege Act, which shields the newsgathering process. We don't know if the information the students uncovered will stand up in court. The burden of proof is squarely on McKinney. His bid to reopen his case will rest with the credibility of witnesses whose stories have changed or who offer new testimony from events long ago. Prosecutors have every opportunity and all the tools they need to interview those witnesses and test their credibility. To find the truth. An innocent man may be in jail. That's the focus here. The students did their work. They have prompted a new look at an old case. The prosecutors need to do theirs. That doesn't mean putting the students on trial. If Alvarez won't back off, the court should quash the subpoena." |
On November 10, the State's Attorney's Office (SAO) filed a 54-page document containing claims that Medill students had given cash to witnesses during the investigation of the Anthony McKinney case. Breathless accounts by journalists rapidly appeared in print, broadcast and on-line publications across the country. "Northwestern students paid witnesses, prosecutors allege," proclaimed the Chicago Tribune's headline over a story by Georgia Garvey.
Never mind that prosecutors did not make that assertion. Rather, two career criminals did. Questioned by representatives of the State's Attorney's Office (SAO), the convicts' most scintillating claims were paraphrased by prosecutors in the first few pages of the court document. By failing to cover the actual interviews with the witnesses -- which were buried in exhibits at the end of the SAO's document -- Garvey and other reporters missed the real story of what the witnesses alleged.
Here is what we know from those exhibits - the SAO's own investigative reports:
1. Two witnesses -- and no others -- claimed the Medill team paid them money. One is convicted killer and armed robber Tony Drake, who, after murdering a disabled man in 1985 by repeatedly beating him with a pole and a rifle, has been re-incarcerated twice for aggravated domestic battery. The other is a Wisconsin drug dealer, Michael Lane, who currently faces charges of cocaine distribution and maintaining a place for narcotics trafficking.
2. Tony Drake was recently interviewed, in prison, by two prosecutors and a state's attorney's investigator, and questioned about the 2004 videotaped interview with Medill students in which he confessed to being present for the murder of Donald Lundahl. Is it surprising that, under the circumstances, Drake recanted?
3. Even though Drake had stated on the videotape that he did not receive any compensation for talking with the students, he told the trio from the SAO that he was paid $100. Yet, the state's evidence of the alleged payment was a $60 cab fare given to the driver, for which the students obtained a receipt. When prosecutors asked Drake about being paid for the interview, here's how he responded, according to their own report: "...the students told him they could not give him money for an interview."
4. The evidence that purportedly corroborated the payment to Drake came from the cab driver, who allegedly was so "concerned that the [$60] transaction was, in fact, a drug deal or sting" that he made notes about the fare in a cab company log. But prosecutors failed to reveal the identity of the cab driver or disclose the report of his interview -- the only instance where this occurred in the entire document -- and even a casual inspection of the log shows that "the driver's" notes were entered at a different time and in different handwriting than the rest of his log. (Readers can see the difference themselves by reviewing Exhibit B in the 54-page document.)
5. Anthony McKinney's lawyers have filed affidavits or tape-recorded interviews with seven sources indicating that Drake confessed the Lundahl murder to them. There is no reference to this corroborative evidence in the SAO report.
6. The second witness, Michael Lane, told a state's attorney's investigator that the students had paid him "a couple hundred dollars." The investigator was openly dubious of this claim. According to his report, he said "it seemed unlikely the students gave him a couple hundred dollars."
7. Lane stated that he also was interviewed by a private detective from Northwestern, describing him as "a male black with a ponytail maybe in his late forties." Sergio Serritella, the only detective who has worked with the Medill Innocence Project since 2000, is a white male with short wavy hair and (at the time) was in his mid-twenties. Since the SAO investigator knows Serritella, he must have wondered who Lane was talking about.
8. The SAO investigator gave Lane $10 "as a travel expense," according to his report. The reason: "[Lane] was driving a Denali and it was costly to operate." The money for transportation was paid directly to Lane, not to a cab driver, and was provided to him up front.
9. The SAO interview with Lane took place on June 22, 2009 -- one month after the state issued a subpoena for grades because prosecutors purportedly had hard evidence that questioned Medill students' "motivation." But the sole pre-subpoena evidence regarding motivation was their interview with Tony Drake.
10. The only other source to raise the issue of money was Robert McGruder, who was named by Tony Drake as an alternative suspect in the crime. In response to questioning by a SAO investigator, McGruder did not claim that Medill students paid him, at any point, for their two interviews. However, McGruder did report that the lead detectives in the McKinney case paid him "30.00 to 40.00 dollars." When asked to explain, McGruder said it was their way of apologizing "for hitting him in the police station."
In sum, except for Tony Drake's claims, the SAO presented no independent documentation that the Medill team paid sources, while two witnesses said in official reports that they were paid by law enforcement. And, in the case of Drake, the documentation was not memorialized in any interview reports or credible records. On the other hand, SAO investigators acknowledged Drake told them the students "could not give him money for an interview."
Team McKinney alums Nicole Lapin and Evan Benn join Prof. David
Protess at the Cook County Courthouse on November 10, 2009.
Why would law enforcement officers believe a convicted killer's account over the students' -- unless their motivation was to discredit the students and to direct attention away from the powerful evidence of Anthony McKinney's innocence?
Moreover, it seems the state has undermined its own legal position on the subpoena by acknowledging they have live witnesses who are available to impeach the evidence that was tendered to them. So why do they need the students' notes and grades? Let their witnesses take the stand, and let the truth be known.
--David Protess
November 22, 2009
More than a dozen national media organizations, including the New York Times, Washington Post, Hearst Corporation, Associated Press and CBS Broadcasting, were joined by the Chicago Tribune and the Chicago Sun-Times in signing an amicus curiae ("friend of the court") brief supporting the Medill Innocence Project's fight to quash subpoenas by Cook County prosecutors for information developed by student journalists investigating the Anthony McKinney case.
The brief, along with a separate amicus brief by the Student Press Law Center, were presented yesterday to Judge Diane Cannon, who is hearing the case. The briefs asserted that Medill student journalists are protected by the Illinois Reporter's Privilege Act and argued those rights are not different than reporters at mainstream news organizations.
"If student reporters at the beginning of their career path cannot conduct real investigative journalism under the supervision of a journalism professor, subject to the same protections as a working journalist, it will curtail their training and impede the development of future generations of reporters," wrote David P. Sanders, a Jenner & Block attorney who represents the Hearst Corporation in asking the judge to consider the brief. "Student journalists are integral to the work of the Press Amici, and the prosecution's efforts in this case to characterize the work of student journalists as something other than journalism should be rejected."
"We are deeply grateful to the national media, our local friends, and the Student Press Law Center for their ringing endorsement of our cause," said Medill Professor David Protess, the innocence project's director. "Both briefs make it clear that Anita Alvarez's prosecutors are misguided in demanding information that is protected by our state's shield law." Protess vowed to "relentlessly continue the fight" until the state's subpoenas are withdrawn or quashed.
|
"Medill justice project gets some media muscle" |
In addition to the amicus briefs, lawyers from Sidley Austin yesterday morning filed a response to the state's November 10 brief insinuating that Medill student reporters had "paid" witnesses in exchange for their statements:
"The State's brief recounts purported information it claims to have uncovered surrounding Respondents' [the Medill team's] interview of Tony Drake. This 'information,' whose source is two career criminals, includes the false insinuation that the cab fare that Respondents have always acknowledged was paid on Drake's behalf was actually some sort of 'bribe' used for drugs and was paid to induce Drake to make a false statement to Respondents.
"This false insinuation, however, does nothing to advance the State's burden of divesting Respondents of their privilege under the Act or otherwise justify the overbreadth of the subpoenas. Respondents long ago published the on-the-record videotape of the Drake interview, where he unambiguously stated that he was paid nothing for his statement, and have also given [Anthony McKinney's] counsel the reimbursement receipt for the cab fare given on behalf of Drake, which was in turn produced to the State in discovery." (See our November 27, 1999 update for David Protess's ten-point rebuttal of the state's allegations.)
The Sidley Austin reply brief, written by lawyers Richard J. O'Brien, Linda R. Friedlieb and Eric Mattson, also argued that the state's shield law applied to Protess and his teaching assistant, Sergio Serritella. The brief cited scores of Illinois cases supporting the notion that the privilege was not generally waived when published interviews were shared with Anthony McKinney's lawyers and prosecutors, that students' grades are irrelevant to McKinney's innocence or guilt and protected by federal privacy law and that the state "cannot satisfy the stringent requirements of the Illinois Reporter's Privilege Act."
At a brief court appearance yesterday, Judge Cannon accepted all three briefs and set February 10 for the next status call in the case.
"Anthony McKinney has waited 31 years for justice," Protess said. "I hope we can move past this sideshow created by prosecutors and allow the judge to consider the substantial evidence that Mr. McKinney was wrongfully convicted."
The other organizations signing the amicus briefs are the American Society of News Editors, the Newspaper Association of America, the Newspaper Guild, the Radio Television Digital News Association, the Association of Alternative Newsweeklies, Advance Publications, CBS Radio, Dow Jones & Co., Newsday, News 12 Networks and the Reporter's Committee for Freedom of the Press.
At a court appearance today, Anthony McKinney's lawyers from the Center on Wrongful Convictions filed a brief challenging the validity of prosecutors' subpoenas for information developed by Medill student-journalists. The lawyers also filed an amended post-conviction petition requesting a new trial for their client, who has spent 31 years behind bars for a crime they say he did not commit.
The Center's brief argued that "the protracted litigation over the Medill subpoenas is unnecessary and should cease" and called on Judge Diane Cannon to quash the subpoenas. Citing Illinois appellate court decisions regarding the scope of discovery, McKinney's legal team wrote: "...David Protess and his Medill associates and students are neither parties to these proceedings nor agents of any parties to this proceedings, and therefore they have no discovery obligations."
Calling the Medill subpoenas "a fishing expedition," the legal team pointed out the inconsistency between the prosecution's claim that McKinney's request for the personnel records of Harvey police officers was not relevant, yet their request for the private records of Medill students somehow was relevant. Last year, prosecutors convinced Judge Cannon that the police officers' files were "a fishing expedition" and should be excluded as evidence, even though the officers had been accused of brutality by McKinney, the state's eyewitnesses in the case and several residents of Harvey.
McKinney's lawyers also highlighted "the unusual and possibly unprecedented nature of the State's attempted use of the subpoena power in these post-conviction proceedings. .." and contended the Medill subpoenas are "unnecessary, unwarranted, and unsupported by the requisite showing of good cause..."
"This court should quash the subpoenas," the brief concluded.
In its amended post-conviction petition, the Center removed the more "controversial" evidence about the alternative suspects that Medill student-journalists had identified in their reporting, and focused instead on the recanting witnesses, Dennis Pettis and Wayne Phillips.
Pettis and Phillips originally claimed to have witnessed Anthony McKinney murder off-duty security guard Donald Lundahl, but later signed statements for the Medill team swearing they had been beaten by Harvey police officers into falsely testifying against McKinney. The student-journalists also obtained a television log that proved Pettis and Phillips could not have been at the scene when the guard was shot.
In light of Phillips' recent death, the amended petition added the testimony of Gwendolyn Pettis, Dennis' sister, who corroborated the police brutality allegations. It also included statements made to State's Attorney's investigators by alternative suspect Robert McGruder regarding his alleged beating by police at the time of the crime.
Alternative suspects Anthony Drake and Michael Lane, career criminals who claimed they were "paid" by Medill students, are no longer part of the petition. McKinney's lawyers asserted that their removal strengthens the argument for quashing the Medill subpoenas. (See our November 27, 2009 Update for a ten-point rebuttal to the state's claim that Medill students paid witnesses.)
Also in court today, prosecutors filed a brief responding to the January 11 briefs by Sidley Austin and eighteen media organizations who supported the Medill Innocence Project's efforts to quash the subpoenas. Perhaps the most newsworthy aspect of the state's filing: It was unsigned. Judge Cannon had created a furor by admonishing the Sidley Austin lawyers for not properly indicating who wrote their November 10 brief, despite the fact that the lawyers' names clearly appeared on page fourteen. ("Chicago Judge Lambasts Sidley Lawyers Over Brief".) Having just been handed three briefs, she apparently did not notice the lack of identifying information in the state's latest missive.
The judge set March 10 for the next court appearance. At that time, oral arguments are expected to be scheduled on the subpoenas -- unless they are withdrawn as a result of the Center's amended petition and brief.
--David Protess
February 10, 2010
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(Updated June 28, 2010 11:27 a.m. CST)