Rejecting logic, Anita Alvarez embraces injustice

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Weighing the credibility of evidence in criminal cases inevitably is an exercise in inexactitude. But, when there are alternative explanations for a given phenomenon, the one involving the so-called lesser miracle — the shorter stretch of credulity — usually is correct. With that notion in mind, it is interesting to review the facts of two murder cases in which Cook County State’s Attorney Anita Alvarez arrived at conclusions that seemingly contravene logic.

The cases are those of Jaime Hauad and Alstory Simon, who have little in common other than that each went to prison in the 1990’s for a double homicide he claims not to have committed. The principal difference in their cases is that Hauad’s innocence claim makes sense and Simon’s does not — a reality that Alvarez stood on its head by keeping Hauad in prison and releasing Simon.

Alvarez’s job is to put and keep killers behind bars and move to promptly free the innocent her office has wrongly convicted, but she’s done exactly the opposite in these cases.

Before going into details, in the interest of full disclosure, let me say that I have relationships with various individuals and two agencies — one public, one private — involved in one or the other or both of the cases.

The Hauad case

Jaime Hauad was 17 when he was arrested on May 26, 1997, and taken to Area 5 Police Headquarters for questioning in connection with the gang-related shooting deaths of Jason Goral and Jose Morales four days earlier outside a bar known as Whoops near the intersection of North Kedzie Avenue and West George Street in Chicago.

Jaime Hauad

Jaime Hauad

According to Hauad’s version of events — provided in a 2013 interview with staff of the Illinois Torture Inquiry and Relief Commission — police at Area 5 beat him and threatened to cut off his toes with an office-grade paper cutter unless he confessed. He did not confess, but police and an assistant state’s attorney who interviewed him testified at his 1999 jury trial that he fabricated an alibi, claiming to have been in jail when the shooting occurred. Hauad denied saying that. The prosecution cited the alleged false alibi as evidence of Hauad’s consciousness of guilt — an inference that went unrebutted at the trial because Hauad, a gang member, did not testify.

The jury found Hauad guilty, relying primarily on the testimony of two witnesses: Luz Contreras, who lived near the shooting scene, testified that she heard shots shortly after 1:00 a.m., looked out, and saw Hauad holding a gun. Miguel Salgado, a wounded survivor of the shooting, testified that Hauad had been at Whoops before the crime, but did not identify him as the killer. Hauad was convicted and sentenced to two life prison terms, which, having lost his appeals, he continues to serve at Pontiac Correctional Center.

Hauad’s mother brought his case to the Torture Commission, a state agency created to review cases of convicted defendants who allege that they were tortured by disgraced former Chicago Police Commander Jon Burge and his subordinates. The Commission has the authority to refer cases in which there is credible evidence of torture to the Circuit Court for hearings, even if the appeals have been exhausted and judicial review otherwise would be foreclosed. Although neither Burge nor any subordinate was involved in Hauad’s alleged torture, the Commission accepted the case, having interpreted its statutory authority to extend beyond Burge cases.

Hauad’s credibility on some points was dubious, to say the least. It made little sense, for instance, that police and an assistant state’s attorney would fabricate a claim that Hauad provided a false alibi; if they were inclined to fabricate a statement, surely it would have been a confession — not an alibi.

His torture claim, however, was strong: He alleged that Detective Daniel Engel, in an effort to coerce a confession, threatened to cut off his toes, that other officers held his feet on the paper cutter while Engle lowered the blade four or five times, leaving gashes in his shoes, and that police then took his shoes and severed the tips, destroying evidence of the gashes. The allegation was corroborated by photos of two lineups in which Hauad appeared at Area 5. In the first lineup, the tips of his shoes clearly were intact. In the second, the tips had been severed. In addition to Detective Engel, one of the officers involved in the investigation was the infamously brutal Joseph J. Miedzianowski, who is serving a life sentence in federal prison in downstate Pekin, Illinois, for racketeering and drug conspiracy.

In May 2013, based on the preponderance of evidence that Hauad indeed had been tortured, the Commission unanimously referred the case to the Circuit Court for review, but in two unrelated Commission cases Circuit Court judges held that the Commission’s jurisdiction did not extend to non-Burge cases. Consequently, in June 2014, the Commission referred the case to State’s Attorney Alvarez to determine whether Hauad ought to have a hearing on whether his alleged false alibi should have been suppressed at his trial.

RELATED: Torture Inquiry and Relief Commission’s amended case disposition

Alvarez referred the case to her Conviction Integrity Unit, which presumably would evaluate both Hauad’s torture claim and evidence of his innocence. The latter includes an affidavit by Miguel Salgado, the wounded survivor of the shooting for which Hauad is imprisoned, recanting his trial testimony that Hauad had been at Whoops before the 1997 double murder. The affidavit says that Detective Engel warned Salgado that he was suspected of arranging the murders of his fellow gang members — a veiled threat, perhaps, that Salgado would be changed with the crime unless he implicated Hauad.

There also is evidence suggesting that the double murder was committed by a gang member named Nick Maroupoulos. More than a decade ago, an eyewitness to the crime told the FBI that Maroupoulos had committed the crime. Moreover, in February 1999, Maroupoulos wrote a seemingly remorseful letter to Hauad, saying: “I could apologize for everything but I guess it wouldn’t help, any. I could imagine what you think of me and I can’t change that. I just have to deal with it.”

RELATED: Letter to Hauad from Maroupoulos

Alvarez’s Conviction Integrity Unit either has rejected Hauad’s innocence claim or has been sitting on it so long that, if he were awaiting trial, the 120-day speedy trial act would have run five times.

The Simon case

In a video-taped interview on February 3, 1999, in Milwaukee with private investigator Paul Ciolino, 48-year-old Alstory Simon confessed that he shot Jerry Hillard, 18, and Marilyn Green, 19, to death on August 15, 1982, in Washington Park on the south side of Chicago.

The confession was sufficiently credible that two days later State’s Attorney Dick Devine, Alvarez’s predecessor, exonerated Anthony Porter, who had been convicted and sentenced to death for the crime in September 1983 and had come within two days of death by lethal injection in September 1998, when the Illinois Supreme Court stayed his execution.

Anthony Porter

Loren Santow

Anthony Porter

The stay was ordered not out of concern that Porter might be innocent but rather because he had scored 51 on an IQ test, indicating that he might be mentally retarded and, thus, ineligible for execution. The purpose of the delay was merely to allow time for further intelligence testing — but it provided an opportunity for David Protess, a Northwestern journalism professor, a group of his students, and Ciolino to develop evidence of Porter’s innocence, most notably Simon’s confession.

RELATED: Simon’s video tape-recorded confession

On September 7, 1999 — seven months and four days after Simon confessed on video-tape — he pleaded guilty to the murder of Hillard and involuntary manslaughter of Green, and apologized in open court to Green’s mother, telling her: “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.”

Simon continued, “I had things between Jerry and I (sic). And when the shots 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 from coming at Jerry. She threw up her hands, and . . . I didn’t even realize she had, she was even hurt that bad.”

Judge Thomas R. Fitzgerald, presiding judge of the Criminal Division of the Cook County Circuit Court, accepted Simon’s plea to one count of second-degree murder and one count of manslaughter and, in accordance with an agreement with the prosecution, sentenced him to 37 years in prison.

RELATED: Simon’s sentencing hearing

Alstory Simon

Alstory Simon

From Joliet penitentiary in ensuing days, Simon wrote an undated letter of apology to Porter. “I’m truly sorry that you had to undergo such a psychological turmoil,” Simon wrote, adding that he been unaware of Porter’s arrest and death sentence until Ciolino apprised him of the situation. “I sincerely hope that you can be able to repair your life back in society,” the letter continued. Simon also wrote several undated letters to his attorney, Jack Rimland, whose pro bono services Ciliono and Protess had procured. A typical one began, “How are you old friend. I sincerely hope you are fine. As for me I’m okay thus far.” The letter concluded, “Take care and thank you Jack from the bottom of my heart.”

RELATED: Simon’s apology letter to Porter and letter to Rimland

On November 24, 1999 — two and a half months after Simon was sentenced — WISN-TV in Milwaukee aired an on-camera interview with him, in which he reiterated that he had been unaware of Porter’s plight, but when 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 Hillard, Simon told WISN reporter Colleen Henry: “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 — it wasn’t the money.”

Then in a letter dated May 1, 2000 — nearly eight months after his sentencing — Simon wrote to David Thomas, a professor at Chicago-Kent College of Law who served as co-counsel in Simon’s case with Rimland. “It is now apparent to me that Jack Rimland showed ineffective assistance of counsel because it is apparent he had a conflict of interest within,” the letter complained, but Simon again acknowledged killing the teenagers: “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.”

RELATED: Simon’s letter to Thomas

Five years later — December 2005 — James G. Sotos and Terry A. Ekl, lawyers known for representing police accused of torture and other misdeeds, filed a petition seeking to vacate Simon’s conviction, contending that he had been tricked into falsely confessing by Ciolino and that Rimland had pressured him to plead guilty even though he was innocent.

RELATED: Simon’s petition for post-conviction relief 

It was hardly surprising that Sotos and Ekl were interested in the case. The exoneration of Anthony Porter had prompted Governor George H. Ryan to declare a moratorium on executions in January 2000 and to empty Illinois death row just before he left office three years later — actions that had infuriated both police and prosecutors.

County Circuit Judge Evelyn B. Clay, however, was decidedly unimpressed with the petition of Sotos and Ekl. On September 15, 2006, she denied it, holding that it had “no merit.” The Illinois Appellate Court affirmed Clay, and declined further review in 2008.

RELATED: Excerpt from Clay’s opinion in People v. Simon

Five years after that — on October 8, 2013 — Sotos wrote to Alvarez, asking her to release Simon because he was innocent, alleging that his confession had been “illegally coerced by fabricated evidence, threats of the death penalty, and promises of riches.” Alvarez assigned the case to her Conviction Integrity Unit. Based on the unit’s review, Alvarez agreed on October 30, 2014, to vacate Simon’s conviction, and he was released the same day.

RELATED: Letter to Alvarez from Sotos

Alvarez told reporters at a press conference: “This investigation by David Protess and his team involved a series of alarming tactics that were not only coercive and absolutely unacceptable by law enforcement standards, they were potentially in violation of Mr. Simon’s constitutionally protected rights. I can’t definitely tell you if it was Porter or Simon. I’m just saying that based on the totality of the circumstances and the way I think Simon was coerced, in the interest of justice, this is the right thing to do.”

That statement, to put it mildly, was nonsensical pertaining to Simon — but it would have made perfect sense if Alvarez had said the same thing about Hauad.

Be that as it may, Terry Ekl is expressing his appreciation for what Alvarez did for Simon by raising funds for her re-election campaign; in the March 15 Democratic primary election, she faces two challengers — Kimberly Foxx, a former top administrative aide to Cook County Board President Toni Preckwinkle and former assistant state’s attorney, and Donna More, a former assistant state’s attorney and assistant U.S. Attorney in the Northern District of Illinois.

“Over the past several years I have developed a great deal of respect for Anita Alvarez,” Ekl wrote in a recent email message to attorneys he hopes will be generous. “I believe her to be a dedicated professional prosecutor. . . . I have volunteered to reach out to members of the legal community in an effort to obtain financial support for Anita’s campaign.”

Ekl asked that checks be made payable to “Friends of Anita Alavarez” and sent to his law office in Lisle, Illinois, adding that contributions “would be greatly appreciated.”

Rob Warden is co-director of Injustice Watch.

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