Will Judge Grant Certificate of Innocence?
Judge Thomas Byrne faces a crucial decision this week.
The circuit court judge can begin righting one of the most crooked cases in the Illinois criminal justice system, or he can press on with the clearly false claims employed to hide this corruption.
Judging by Byrne’s comments and questions in a hearing last month to determine whether Alstory Simon will be granted a Certificate of Innocence, Byrne could go either way.
Alstory Simon is seeking a Certificate of Innocence for a 1982 double murder. His conviction was vacated last year at the behest of Cook County State’s Attorney Anita Alvarez after her office conducted a year-long review of the case.
The decision to release Simon from prison undermined perhaps the most influential wrongful conviction case in the state’s history. The reason is that Simon’s confession and subsequent conviction allowed the man originally convicted of the murders, Anthony Porter, to go free.
Porter’s exoneration was the work of Northwestern Unviversity’s Innocence Project under former Professor David Protess. It generated international acclaim for the professor and the university and paved the way for many other exonerations.
In freeing Simon, Alvarez assailed the conduct of Protess, his private investigator Paul Ciolino and an attorney both men obtained to represent Simon, Jack Rimland.
From the Tribune:
“The bottom line is the investigation conducted by Protess and private investigator Ciolino as well as the subsequent legal representation of Mr. Simon were so flawed that it's clear the constitutional rights of Mr. Simon were not scrupulously protected as our law requires," said Alvarez, who indicated she would have considered obstruction of justice or witness intimidation charges if the statute of limitations hadn't run out.
Simon’s release from prison also paved the way for a massive lawsuit by Simon’s attorneys against Northwestern, Protess, and Ciolino. In the lawsuit, Simon’s lawyers allege a pattern of corruption at Northwestern during the tenure of Protess going back more than a decade involving several wrongful conviction cases.
Prosecutors stated in court last month that they neither oppose the request nor support it, a grand cop out by the prosecutors, who amasses a vast body of evidence that Porter was guilty of the murders and Simon was innocent, including statements from prosecutors who were involved in the case back in 1999 when Porter was set free and Simon indicted.
Given the massive evidence of Simon’s innocence and the fact that he was coerced into confessing, the Certificate of Innocence seemed a mere formality. But judging from intense questioning of Simon’s lawyer at a hearing last month, it appears Judge Byrne may be looking for a way out of granting it.
Byrne’s apparent skepticism seems rooted in the so called confession Simon made to private investigator Paul Ciolino in 1999.
A little background.
In 1998, Anthony Porter was on death row for the murders. Northwestern University’s Innocence Project under David Protess became involved in the case. After a short “investigation,” Protess, his private investigator Paul Ciolino, and several students announced Porter was innocent and another Alstory Simon was the offender. The foundation of their claim that Porter was innocent was a confession they obtained from Alstory Simon on a winter morning in 1999.
Simon eventually claimed this confession was coerced. He claimed Ciolino burst into his Milwaukee home with a gun that February morning and threatened violence against him. He said Ciolino claimed he (Ciolino) was a cop and Simon was about to be arrested for the murders. Ciolino showed documents from witnesses that stated Simon was the killer and not Porter, then advised him he could get the death penalty. Threatening Simon with life in prison and even violence if he didn’t cooperate, Ciolino, according to Simon, forced Simon into making a taped confession to the two murders.
Simon also made a claim that was by now common in Protess/Ciolino exoneration cases. He said he was offered a shortened prison sentence and money from movie and book deals by the two men if he would confess to the crimes.
In one of the most incredible twists in the confession, Ciolino corroborates the claim that Simon asked for an attorney during their meeting. Ciolino picked up the phone at Simon’s apartment and called an attorney who was a personal friend back in Chicago, Jack Rimland, who also rented office space from Ciolino.
It was one of the darkest chapters in Chicago’s criminal justice system. A man trying to get another man to confess to murder obtains a lawyer for that man, a lawyer who tells his client not to exercise his right to remain silent, but instead confess to murders sixteen years after the fact.
In addition to not telling Simon to remain silent, Rimland didn’t tell Simon to call the police and have Ciolino removed. Rather, he encouraged Simon to plead guilty to the murders on tape without the attorney even reviewing the case, and despite all the evidence of Simon’s innocence, including the six witnesses who still fingered Porter.
Alstory Simon’s lawyers pounced on the validity of this confession and the conduct of Rimland in a letter to prosecutor Anita Alvarez, demanding that Simon be released from prison.
“…Alstory [Simon’s guilty] plea is directly attributable to provable misconduct of his attorney, Jack Rimland, who was hired by and working on behalf of Ciolino and Protess. In that role, Rimland lied to Alstory about the strength of the State’s case, and withheld explosive grand jury evidence of Porter’s guilt from both Alstory Simon and the court.”
Armed with the videotape of Simon’s confession, Ciolino delivered it to a network news station in Chicago. It was broadcast. Suddenly the whole city was electrified by the contention that the state had almost executed an innocent man.
In 1999, the Cook County State’s Attorney was Dick Devine. At the time Devine decided to free Porter, the Chicago media, particularly the Chicago Tribune, was pummeling Devine’s office, saying prosecutors had put dozens of innocent people in prison.
In the face of this pressure, Devine released Porter from prison on the double murder charge, based largely on the existence of the videotaped confession. But, according to Devine’s own staff member, Thomas Epach, Devine had never actually seen the entire tape, only the edited, cut down news broadcast version. That meant a gang enforcer convicted of a double homicide was released from prison based upon a taped confession the prosecutor had not even reviewed.
Even worse, Epach stated in a recent affidavit that he did not think Porter should have been released, nor that Simon should have been arrested. This was an ominous statement, as Epach was the prosecutor who had investigated the case and knew it better than anyone.
Furious that Devine let Porter go, Epach called his own grand jury and appointed prosecutor Thomas Gainer to run it. This grand jury is a dark window into the should of the wrongful conviction movement, for Gainer slowly dissected the Northwestern case and showed it to be a complete fraud.
Despite this Grand Jury, Porter was released. The media went nuts. Here was a man going from death row to walking around the south side within just a few days. Inmates who watched Porter’s release realized that if Porter could get out, anyone could. Wrongful conviction claims exploded.
Devine’s office could have put Porter on bond, could have granted him some conditional discharge pending further investigation, but Devine just cut Porter loose.
The whole sordid plot remained unquestioned until Alvarez agreed to review the case, then released Simon from prison.
Back to Byrne and Simon’s Certificate on Innocence bid.
In the hearing last month, Byrne returned over and over to Simon’s confession while questioning Simon’s attorney, as if Simon were responsible for the confession, despite all the evidence of coercion, including threats of violence.
Two different scenarios emerge as to why Byrne may be doing this.
Allegations of a thin blue line are constantly made against the police. The public believes that cops will refuse to testify against each other or make decisions that will front out another cop for that cop’s malfeasance.
One wonders if the same force isn’t operating among the judges.
Remember the prosecutor who ran the Grand Jury, Thomas Gainer?
Well, even though he uncovered the lies at the heart of the Northwestern claims, six months after the Grand Jury, he accepted Alstory Simon’s confession in court, knowing full well it was false. It was one of the greatest abuses in the Illinois criminal justice system.
What happened to Gainer after the Simon case was finished?
He became a judge himself, a coveted position in the legal community.
Now, with the Simon/Porter case unraveling and the evidence mounting of Gainer’s misconduct mounting, the declaration of a Certificate of Innocence would only add to Gainer’s woes, and Dick Devine’s for that matter.
It’s important to remember that the evidence in the case indicates not only coercion against Simon, but the fact that Porter was the killer all along.
Porter murdered the couple in 1982. He’s walking around a free man.
Then, of course, there is the power of Northwestern University. Many lawyers and judges have graduated from their law school. Many journalists have graduated from Medill. A Certificate of Innocence would be a serious blow to the school.
Just how much impact it would have on the civil lawsuit by Simon against the school is uncertain.
Denying the certificate and claiming Simon was responsible for the confession would also bail out the journalists in Chicago who supported Simon’s conviction and Porter’s release without ever bothering to look at the facts. The refusal of a judge to declare Simon innocent would give them some excuse for their misconduct.
But hears the rub for Judge Byrne.
A long discovery process is likely in the civil lawsuit. Many witnesses and colleagues of Protess, Ciolino and those associated with Northwestern University are not likely to lie under oath. There is a high probability of one bombshell after another pointing to misconduct and perhaps criminal conduct at Northwestern, particularly in connection with Simon’s confession.
There is also a high likelihood that other wrongful conviction cases involving Protess and Ciolino will unravel.
One wonders, for example, what it will be like when Simon’s attorney call former prosecutor Thomas Epach to the stand. Epach’s detailed description of his arguments against letting Porter and go and taking Simon into custody would be shocking.
Byrne’s refusal to rule on what the evidence clearly shows—that Simon was coerced into confessing—would clearly paint his decision as another crucial example of corruption in the sordid history of this case.
Two people were murdered. A killer was returned to the streets. An innocent man was framed into confessing. Detectives were framed. Students were manipulated into one of the macabre conspiracies ever. The criminal justice system was virtually destroyed.
Byrne has an opportunity to start setting things right.
But this is Cook County, and Chicago is the Crooked City.