Speaking of malicious prosecutions…

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Robert Dow Jr.

Federal Bar Association

Judge Robert Dow Jr.

Regardless of whether U.S. District Court Judge Robert M. Dow Jr. was on firm ground last week when he denied a motion to dismiss a $40 million civil suit stemming from the supposed malicious prosecution of Alstory Simon for an infamous double murder, the ruling — right or wrong — begs a crucial question: Can a prosecution that rested on overwhelming evidence of guilt be construed as malicious?

Alstory Simon

Alstory Simon

The answer, of course, in the end surely will be that it cannot.

But evidence of Simon’s guilt was not the issue before Judge Dow last week; in deciding whether to dismiss a case, a judge is required to accept factual allegations in the complaint as true. In giving a green light to the suit against Northwestern University, former Professor David Protess, and private investigator Paul J. Ciolino, Dow held only that the alleged facts, if true, constituted a plausible cause of action.

Any forthcoming objective assessment of the facts, however, surely will find them wanting — leaving nothing remotely resembling reasonable doubt that Simon shot Jerry Hillard, 18, and Marilyn Green, 19, to death in a dispute over a drug debt in the wee hours of August 15, 1982, in Washington Park on the South Side of Chicago.

There is no credible evidence to the contrary — despite an elaborate propaganda campaign orchestrated by a three avaricious, agenda-driven lawyers who represent Simon — James G. Sotos, Terry A. Ekl, and Andrew M. Hale, who have dedicated their careers to representing police officers accused of torture and framing innocent civilians.

The trio contend that Hillard and Green were slain not by Simon, but by Anthony Porter, who was convicted of the crime in 1983 and came within two days of execution in 1998 before he was exonerated and pardoned based on innocence.

The propaganda campaign comprises a book called “Justice Perverted” written by a former Chicago Tribune reporter William Crawford and published by a vanity press, a deceitful documentary called “A Murder in the Park” based on Crawford’s book and financed by Hale, and a wrongheaded, if not disingenuous, decision by Cook County State’s Attorney Anita Alvarez to cut short a 37-year prison sentence Simon received after pleading guilty to the crime in 1999.

Simon’s suit, like the book, documentary, and Alvarez’s action, rests on an implausible notion that Protess and Ciolino, who worked on wrongful conviction cases with Protess and his students, somehow tricked Simon into falsely confessing, supposedly by promising him that he might share in the proceeds from a prospective book and movie deal — no money down, of course.

The suit goes on to surmise that Protess and Ciolino set about framing Simon and freeing Porter to advance both the drive to abolish the Illinois death penalty and their reputations as champions of the innocent.

Northwestern University, the lead, deep-pocketed defendant in Simon’s suit, is alleged to have known about unethical conduct by Protess and Ciolino stemming from their work on a previous case but to have ignored the situation — so as not to jeopardize millions of dollars flowing into university coffers from donors enthralled with the success of Protess, his students, and Ciolino in exonerating wrongfully convicted men and women.

Although the co-defendants’ attorneys hoped that Dow would throw out the case last week, that he did not may well have set the stage for a long-overdue airing of evidence that promises to leave no reasonable doubt that Simon — not Porter — murdered Jerry Hillard and Marilyn Green.

A crime investigation gone awry

Upon learning of the murders, Ofra Green, Marilyn’s mother, told police that in all likelihood the killer was Simon, who along with his wife, Inez Jackson, had been in a heated dispute with Jerry over drug money the evening preceding the victims’ deaths.

Rather than pursuing Simon, however, police focused on Porter, who was implicated in the crime — dubiously — by an eyewitness: William Taylor, who had been swimming in the Washington Park pool when the murders occurred and initially told police that he had not seen the killer, but changed his story after 17 hours of grilling, belatedly identifying Porter.

Police cursorily interviewed Simon and Inez Jackson, who denied having been in Washington Park with Hillard and Green — a denial that Simon now acknowledges was false, as did his former wife before her death of natural causes. In its current incarnation, the story is that the four were drinking in the park but parted before Porter happened along and shot the victims to death.

Promptly thereafter Simon left Chicago, moving to Milwaukee — where he would become a prime suspect in the murder of a man named Felix Alfonso Bello, who, like Hillard and Green, had been shot with a .38-caliber weapon.

Porter’s surrender and conviction

When Porter learned that he was a suspect, he surrendered to Chicago police, professing innocence, but was charged with slaying Hillard and Green.

Although Porter qualified for representation by a public defender, his family thought — unwisely it would turn out— that he would be better off with private counsel; the family retained private attorney Akim Gursel, promising to pay him $10,000. But when only $3,000 was forthcoming, Gursel stopped investigating Porter’s innocence claim.

In September 1983, Porter went on trial before Judge Robert L. Sklodowski and a jury in Cook County Circuit Court. There was no physical evidence linking Porter to the crime; the prosecution case rested principally on the eyewitness testimony of William Taylor. During the trial, Gursel once fell asleep; the transcript shows that Sklodowski awakened him. When the prosecution rested, Gursel called only two alibi witnesses and a photographer who had taken aerial shots of Washington Park.

The jury found Porter guilty. After Gursel waived a jury for sentencing, Sklodowski deemed Porter “a perverse shark” and sentenced him to death. Appeals dragged out over the next 15 years before Porter’s execution was scheduled for September 23, 1998.

In the face of the impending execution, Daniel R. Sanders, a volunteer lawyer, arranged for intelligence testing, which placed Porter’s IQ at 51 — meaning that he likely was mentally retarded.

Although at the time it was legal in Illinois to execute someone who was mentally retarded, Sanders filed a last-ditch petition with the Illinois Supreme Court arguing that Porter’s mental capacity rendered him incapable of understanding his punishment and, therefore, that he should not be executed.

Two days before Porter was scheduled to die, the court granted a stay of execution, ordering the Cook County Circuit Court to hold a competency hearing to determine whether Porter was fit to be executed.

The Northwestern investigation

Shortly after the stay was granted, Protess, Ciolino, and the Northwestern students began investigating the case. In December 1998, in an interview with Ciolino, eyewitness William Taylor recanted his trial testimony, signing an affidavit saying that he had not seen who shot the victims and that police had pressured him to identify Porter.

On January 29, 1999, Simon’s by-then-estranged wife, Inez, told Protess, Ciolino, and two of the students that she had been present when Simon shot Jerry Hillard and Marilyn Green. Inez added that she did not know Porter, but that he had nothing to do with the crime.

Four days after that, Simon confessed on videotape to Ciolino, maintaining that he had killed Jerry in self-defense after the two argued over drug money and that Marilyn’s death had been accidental.

Based on the new evidence, State’s Attorney Dick Devine, Anita Alvarez’s predecessor, agreed to Porter’s release on a recognizance bond and the following month Devine dropped the charges.

Simon’s plea and additional confessions

On September 7, 1999, Simon pleaded guilty before Circuit Court Judge Thomas R. Fitzgerald, apologizing on the record to Ofra Green: “It was an accident that your daughter got shot. I never meant to hurt her. Never meant to do it. Never meant her no harm at all. I had things between Jerry and I (sic). And when the shorts started she just, she was coming past and happened to got (sic) in the way when the shot went off. Before I realized it I had already squeezed the trigger, she was trying to stop me coming at Jerry.”

While false confessions generally are a well-known phenomenon, they almost invariably are recanted promptly, usually only a day or so later. Simon’s in-court confession, thus, coming as it did seven months after he confessed to Ciolino, strongly corroborated its veracity, but further corroboration was to come.

From the Joliet Correctional Center Simon penned an undated letter abjectly apologizing to Anthony Porter for his wrongful conviction: “I’m truly sorry that you had to undergo such a psychological turmoil. . . . I sincerely hope that you can be able to repair your life back in society.”

Simon also wrote several letters to Jack Rimland, an attorney who had volunteered to represent him at the behest of Ciliono and Protess. Said one: “How are you old friend. I sincerely hope you are fine. As for me I’m okay thus far. . . . Take care and thank you Jack from the bottom of my heart.”

Then on November 24, 1999 — two and a half months after Judge Fitzgerald sentenced Simon to 37 years in prison — WISN-TV in Milwaukee aired an on-camera interview in which Simon said that he had been unaware of Porter’s plight until informed of it by Ciolino. “That’s when I decided that I was not going to let this man die for something that he did not do.” Referring to Jerry Hillard, Simon said: “The guy had fell (sic) into a huge debt with me, but it still didn’t give me no reason to kill him for it. . . .”

Finally, in a letter dated May 1, 2000, Simon sought new counsel, claiming that he had not been effectively represented by Rimland but reiterating: “I never meant to hurt anyone, yet alone kill anyone. I was only defending myself from a young man who was trying to kill me and another person was killed by accident.”

On the strength of Simon’s myriad confessions, which remained consistent over 15 months — from February 3, 1999, to May 1, 2000 — his belated assertion of innocence simply is not plausible.

Rob Warden is co-director of Injustice Watch. During the 1980’s and 90’s,  Warden worked with Protess on two wrongful conviction cases and with Ciolino on the case of a day care operator falsely accused of sexually assaulting toddlers in her care.

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