I am firm in the belief both that free speech is the cornerstone of American democracy and that the appropriate remedy for irresponsible speech is simply more speech—not a lawsuit.
If it were up to me, I would get rid of the legal cause of action for defamation.
It is not up to me, of course—and I admittedly take satisfaction in an Illinois Appellate Court ruling this week reinstating a libel suit brought by private investigator Paul J. Ciolino to redress allegedly defamatory accusations that he and former Northwestern University Professor David Protess engaged in misconduct to exonerate a guilty man and frame an innocent one in an infamous double murder case.
In reality, the evidence is abundantly clear that Ciolino and Protess exonerated an innocent man and developed evidence that led to a guilty plea and conviction of the actual killer.
The innocent man was Anthony Porter, who had been convicted of and came within two days of being executed for the murders, which were committed by Alstory Simon—who despite overwhelming evidence of his guilt was freed from prison in October 2014 by Cook County State’s Attorney Anita Alvarez.
The statements at issue in Ciolino’s libel action were made in connection with the case by, among others, Chicago lawyers Terry A. Ekl, James B. Sotos, and Andrew Hale, former Chicago Tribune reporter William B. Crawford, and Chicago Fraternal Order of Police spokesperson Martin Preib.
Former Cook County State’s Attorney Anita Alvarez originally was among those named in the suit, but this week’s Appellate Court ruling dismissed her as a defendant, holding that the statute of limitations expired before the action was filed in January 2018.
So Alvarez is off the hook legally—but not morally.
Freeing Simon was, to put it mildly, indefensible.
When Alvarez freed him it was against a recommendation from leaders of her office’s Criminal Prosecutions Bureau—Fabio Valentini and Joseph Magats—who had concluded a year-long investigation of the case with a significantly understated finding that “there is not sufficient evidence to seek to vacate Simon’s convictions.”
Indeed, Simon confessed repeatedly and unequivocally over two years to murdering Jerry Hillard, 18, and Marilyn Green, 19, in a dispute over a drug debt in Washington Park on the South Side of Chicago—first in February 1999 on tape to Ciolino, then in September 1999 when he pleaded guilty to the killings and apologized in open court to Green’s mother, then in an undated letter apologizing to Porter, then in November 1999 in an on-camera interview with a Milwaukee television station, in several undated letters to his pro bono attorney, and in a letter dated May 1, 2000, to a law professor at Chicago-Kent College of Law.
False confessions are a well-known if under-appreciated phenomenon—having occurred in more than 300, or about 12 percent, of some 2,500 wrongful convictions documented by the National Registry of Exonerations—but Simon’s repeated confessions pretty clearly aren’t false.
Ciolino charges that Alvarez put a killer on the street out of a vendetta against David Protess for embarrassing her. Her actions allegedly were in concert with a defamatory propaganda effort by the defendants against whom the Appellate Court gave a green light for the libel action to proceed.
There will never be justice in this case—but the Appellate Court at least gives hope that Ciolino may succeed in establishing a record of what Alvarez and her alleged cohorts did.
Rob Warden is co-director of Injustice Watch. Full disclosure: Warden has had a long association with David Protess, having co-authored two books with him—Gone in the Night/The Dowaliby Family’s Encounter with Murder and the Law (Delacorte, 1992) and A Promise of Justice/The Eighteen-Year Fight to Save Four Innocent Men (Hyperion, 1998). Warden and Protess worked closely with Paul Ciolino on the latter.