The Ham Sandwich
Among cops, lawyers, and others familiar with the criminal justice system, there is an old saying: A grand jury could indict a ham sandwich.
The saying illuminates the broad powers afforded a prosecutor to get a grand jury to indict a suspect. The prosecutor can pick and choose the witnesses and evidence he wants to bring forward. There are more lenient rules in a grand jury than there are in a trial, including rules regarding hearsay evidence. Whenever prosecutors have a weak case, they often rely on the grand jury process to get the indictment they want. And when a grand jury refuses to indict, it is a crippling blow to a prosecutor’s case.
But explosive, never before publicly revealed documents uncovered by the Conviction Project reveal abuses in the grand jury process that paint a chilling picture of corruption in the Cook County State’s Attorney’s Office.
These documents reveal a pattern of apparent manipulation by prosecutors in 1999 to bury evidence that showed Anthony Porter was the killer and knowingly indicted an innocent man, Alstory Simon, for the same murders.
The Anthony Porter case was one of the most influential wrongful conviction cases in the state’s history, one that played a crucial role in ending the death in Illinois. Porter was freed in 1999 after Northwestern University’s Innocence project claimed Porter was guilty and another man, Alstory Simon, was the offender. Northwestern’s claims about Simon being guilty, sixteen years after the murders, flew in the face of the entire police investigation. No police investigator ever encountered a witness who mentioned the name Alstory Simon. Every witness they talked to said the killer was Anthony Porter.
Nevertheless, members of the Innocence Project, headed by then professor David Protess, obtained in 1999 an illegal confession from Simon to the murders. Protess’ private investigator, Paul Ciolino, recorded this alleged confession during a bizarre and potentially violent confrontation with Simon at Simon’s apartment in February of 1999. Armed with this videotaped confession, Northwestern investigators claimed it was conclusive evidences of Porter’s innocence and Simon’s guilt. Based largely on this recording, prosecutors released Porter and took Simon into custody.
There was one major problem, which remained hidden from the public. The prosecutor at the State’s Attoney’s Office in 1999 who was the most familiar with the Porter case, Thomas Epach, did not buy the Northwestern claims. He believed Porter was guilty and Simon was innocent. He should know. As chief of the criminal division, he was the foremost expert on the case. Despite the fact that then State’s Attorney Dick Devine had released Porter and taken Simon into custody, Epach stated in a recent affidavit that he confronted Devine in 1999 about the overwhelming evidence against Porter. Despite Epach telling Devine that Porter was guilty, Devine left Porter free and had Simon jailed in the county jail to await sentencing.
Furious at what he thought was a great injustice taking place in the prosecutor’s office, Epach formed his own grand jury, unbeknown to his boss Dick Devine, with the intent of dissecting the Northwestern investigation and showing exactly who was guilty of the murders.
Epach drew up the witness list and instructed his colleague, Thomas Gainer, to question the witnesses to the shooting, as well as the Northwestern investigators. In a short time, Gainer showed that Epach was correct. The entire Northwestern theory collapsed during this grand jury hearing. Gainer revealed that the Northwestern investigators had done little to investigate the case. He showed clearly that Northwestern investigators and attorney Jack Rimland, obtained to “represent” Simon by Protess and Ciolino, conspired to frame Simon for the murders.
Epach’s heroic decision to convene a grand jury and reveal the fraudulence of the Northwestern investigation placed a huge burden on Dick Devine’s office. Devine had already released Porter and taken Simon into custody. Now a grand jury convened by one of his own prosecutors had ripped apart any legal basis to release Porter or indict Simon. The grand jury revealed that prosecutors had bought into a massive conspiracy.
The Epach grand jury testimony also reveals that few jurors were buying the Northwestern theory. Their questions to witnesses clearly suggest there is no way they would have voted to indict Simon. And if they didn’t, it would be a stunning rebuke of Devine’s conduct, the fact that his administration bowed to the pressure of a renegade Northwestern professor and his students, freed a killer and incarcerated an innocent man.
What happened next at the prosecutors’ office defies belief. According to records recently obtained by the Conviction Project, it appears that Devine’s office manipulated the grand jury process to specifically hide the evidence of Porter’s guilt and Simon’s innocence.
Prosecutors did so by convening a new Grand Jury in March of 1999, weeks after the first grand jury expired. In this second grand jury, the entire body of evidence introduced during the first grand jury that revealed Northwestern’s claims were a fraud were ignored. Instead, according to court transcripts in this second grand jury, prosecutor Thomas Gainer, who just a few weeks earlier was ripping apart the Northwestern theory that Porter was innocent and Simon guilty, called just two witnesses to the stand, a Chicago Police Detective and Assistant State’s Attorney Celeste Stack.
In a brief kangaroo hearing on March 24, 1999, these two investigators were questioned only about witnesses who claimed Simon was the killer. All other witnesses pointing to Porter as the killer were ignored, as was the evidence of malfeasance by Protess, Ciolino, Rimland and the Northwestern students. Also ignored was the original police investigation, which also showed clearly Porter was the killer.
And who were the witnesses the detective and assistant state’s attorney talked to in preparation for the second grand jury? They were witnesses all obtained by Northwestern investigators, all witnesses who would later recant their entire claims about Simon being the killer. These witnesses would also state in their recantations that they made fraudulent statements against Alstory Simon only as part of a conspiracy with then Northwestern Professor David Protess.
Once again, in this second grand jury, witnesses to the actual shooting who testified in the first grand jury were ignored. Testimony from Protess and his students that showed they hadn’t looked into the case at all were ignored. The evidence that Northwestern investigators had bribed and intimidated witnesses to change their statements was also ignored.
In short, prosecutors knowingly ignored the vast exculpatory evidence of Alstory Simon they had amassed in the first grand jury and manipulated the second to ensure that only testimony from a few suspicious witnesses was introduced to jurors. They did so to secure an indictment against Simon. And it worked. Hearing only about the statements of these dubious witnesses, members of the second grand jury reflexively voted to indict the hapless Alstory Simon, now the biggest ham sandwich in the state’s history.
The repercussions of this new evidence of a second, apparently rigged grand jury are vast and profound.
They add to an already terrifying, unprecedented body of evidence of prosecutorial misconduct in the case. It is already clear from the first grand jury that prosecutors knowingly accepted a confession from Alstory Simon they knew to be false. Transcripts show clearly that a large number of witnesses from the first grand jury always pointed to Porter as the offender, not Simon. Nevertheless, Devine’s office accepted a confession from Simon in September of 1999. Devine’s staff member, Thomas Gainer, walked into court and accepted a confession from Simon when he knew full well there was exculpating evidence still fingering Porter for the murders, not Simon. Gainer did not raise this evidence to the trial judge, as is his legal requirement, nor did the attorney, Jack Rimland, hired by Ciolino and Protess to “represent” Simon. The grand jury transcripts indicate both the prosecutor and the defense attorney lied to the trial judge.
Now the records suggest that Devine’s office was willing to set up a secret, second grand jury aimed at procuring a wrongful conviction against Alstory Simon.
This increasing evidence of malfeasance against Dick Devine’s office casts a dark shadow on the current prosecutor, Anita Alvarez.
For many years a collection of investigators, lawyers, retired detectives and journalists have argued that Simon was wrongfully convicted. Their claims were ignored by prosecutors and the courts and ridiculed by Chicago’s corrupt media machine, which had fallen in love with Northwestern University’s Innocence Project. Then, last year, former prosecutor Thomas Epach released his affidavit in which he said he thought Porter was guilty and Simon innocent and had told then State’s Attorney Dick Devine about it.
No longer able to ignore such compelling evidence, current Cook County State’s Attorney Anita Alvarez announced last year she would review Simon’s case as part of her Conviction Integrity Unit. Alvarez vowed to review the case completely. It dragged on for more than a year before she announced she was releasing Simon from prison.
In releasing Simon, Alvarez stated she had conducted one of the most comprehensive investigations in her career. She assailed the conduct of Northwestern investigators, saying Protess, Ciolino and attorney Jack Rimland had violated Simon’s constitutions rights in obtaining a confession from Simon and the abysmal representation of Simon in court.
But Alvarez insisted that there was no malfeasance in the prosecutor’s office when Simon was indicted.
The discovery of a second grand jury, though, along with the prosecutors knowingly accepting a false confession, now undermines that claim by Alvarez. The manner of Alvarez’s investigation and her conclusions can’t help but suggest that Alvarez may have designed her review into the Simon case as much to cover up corruption in her predecessor’s office as to determine Simon’s guilt or innocence.
After all, here it is 2014 and only now is it becoming known that there was a second grand jury, and this bombshell information is coming from outside her office.
Here are some questions Alvarez should answer:
Didn’t Alvarez’s office bother to even look at how Simon was indicted? An indictment is an elemental procedural step of any case. Didn’t the vast evidence of Simon’s innocence that arose in the first grand jury cast a dark cloud on the intent of the second one, which ignored this evidence?
Didn’t Alvarez or her staff see the clear framing of Simon that was taking place in her predecessor’s office?
Why has she refused to address it? After all, Alvarez has indicted many police officers for corruption. Why are the same standards not applied to the prosecutor’s office?
It’s important to remember that Alstory Simon is not the only victim in the Anthony Porter debacle. The Chicago Police Department is right along with him. In allowing the wrongful exoneration of Anthony Porter and the wrongful conviction of Alstory Simon, the prosecutors in 1999 betrayed the detectives who initially investigated the case and arrested Porter. When Porter was set free, the detectives endured decades of vilification in the media and court actions against them, including a lawsuit seeking millions of dollars. They were accused of framing Porter, of intimidating witnesses, even of torture.
The Porter case also gave life to many other fraudulent wrongful conviction claims that ruined the lives of cops and detectives. Chicago Police Officers have lived under this cloud for more than a decade.
Isn’t it time Alvarez stopped backpedaling on the malfeasance in the Simon case? Isn’t it time a review of the prosecutors conduct and the other David Protess investigations at Northwestern took shape?
Isn’t it time to put the wrongful conviction movement in Chicago under a legal microscope?