Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Simon v. Northwestern University

United States District Court, N.D. Illinois, Eastern Division

January 3, 2017

ALSTORY SIMON, Plaintiff,
v.
NORTHWESTERN UNIVERSITY, DAVID PROTESS, PAUL J. CIOLINO, and JACK P. RIMLAND, Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         Plaintiff Alstory Simon alleges that Defendants' unethical journalistic and investigative practices led to his wrongful conviction and 15-year incarceration for a double murder that he did not commit. More specifically, Plaintiff alleges that Defendants David Protess, Paul J. Ciolino, Jack P. Rimland, and Northwestern University knowingly falsified evidence and disseminated that evidence to the prosecuting authorities to frame Plaintiff for the murders. On April 16, 2016, the Court granted in part and denied in part Defendants' motions to dismiss. [72.] The Court dismissed Rimland as a Defendant without prejudice and dismissed Counts IV through VIII of Simon's complaint without prejudice. The Court permitted Simon to proceed against Protess and Ciolino on Count I (malicious prosecution) and Count IX (conspiracy) and against Northwestern University on his vicarious liability theories, as articulated in Counts I, II, and III of Simon's complaint.

         Currently before the Court are Defendant Ciolino's 12(c) motion for judgment on the pleadings [82] and Defendant Ciolino's motion to supplement the aforementioned motion [193]. For the reasons set forth below, Defendant Ciolino's motion to supplement [193] is granted, and Defendant Ciolino's motion for judgment on the pleadings [82] is denied. The stay on oral discovery is lifted. Defendant Protess's motion [195] to stay depositions pending a ruling on [82] is stricken as moot. The remaining pending discovery motions [128], [145], and [194] are referred to Magistrate Judge Weisman in accordance with the Court's August 17, 2016 minute order [154]. This case is set for further status hearing on January 23, 2017 at 10:30 a.m. Counsel should go to the status hearing with Magistrate Judge Weisman first and then proceed to Judge Dow's courtroom.

         I. Background[1]

         Plaintiff Simon alleges that Defendant Protess, a faculty member of Northwestern University's Medill School of Journalism, and Defendant Ciolino, a private investigator, have a history of using ethically-questionable investigatory tactics in connection with wrongful conviction cases. Plaintiff claims that Defendant Northwestern became aware of Protess's and Ciolino's unethical behavior as early as 1997, but, motivated by the “prestige, recognition and monetary benefits” that came from Protess's work, continued to endorse his program. According to Plaintiff, in 1998, Protess and Ciolino and their team of journalism students began investigating the 1983 conviction of Anthony Porter for the murder of Jerry Hillard and Marilyn Green. Protess and Ciolino allegedly “formulated a plan to fabricate evidence that would exonerate Porter for the murders.” [1, at ¶ 80.] Their primary tactic was allegedly to develop an alternate suspect: Plaintiff, Alstory Simon. As Plaintiff puts it, over the next seven weeks, “Protess and Ciolino, with the participation of Protess's students, knowingly manufactured and fabricated four pieces of false evidence which they contended dismantled the case against Porter and proved that Simon committed the murders.” [1, at ¶ 84.]

         First, Defendants allegedly coerced eyewitness William Taylor into signing two affidavits essentially recanting his prior incriminating statements against Porter. The second and third pieces of false evidence were allegedly coerced statements from Illinois inmate Walter Jackson and his aunt (and Plaintiff's estranged wife), Inez Jackson Simon. The fourth piece of falsified evidence was Plaintiff's allegedly false confession for the murders. According to Plaintiff, in the early morning of February 3, 1999, Ciolino impersonated a police officer and “bull rushed” Plaintiff's home with another investigator, guns drawn. Plaintiff contends that Ciolino illegally detained him and “through the use of threats, fabricated evidence, false statements, promises, money, and other illegal tactics, ” obtained the false confession. [1, ¶ 93.] Defendants' release of Plaintiff's taped confession to CBS television started what Plaintiff refers to as a “national media ‘frenzy.'” Ciolino arranged for his friend, attorney (and former defendant in this lawsuit) Jack Rimland to provide legal representation to Plaintiff free of charge, but Plaintiff contends that Rimland was in on the conspiracy. Within a matter of days, Anthony Porter was released from prison, and Plaintiff was arrested and charged with the double murder.

         In February and March 1999, the Cook County State's Attorney's Office conducted a grand jury investigation of the murders. Protess, Ciolino and several Medill students testified before the grand jury, advancing their allegedly fabricated evidence to incriminate Plaintiff. “[F]our other independent and unbiased witnesses” also testified, three of whom identified Anthony Porter at the scene of the crime (one stating affirmatively that “it was Anthony Porter who shot the victims”), and none of whom identified or implicated Plaintiff. [1, ¶¶ 103-05.] These four witnesses were prominently referenced in the police reports from the original 1982 murder investigation, but Plaintiff contends that Protess's team made no effort to locate and/or interview any of them. Ultimately, “[t]he grand jury was disbanded without being asked to return an indictment against [Plaintiff].” [1, ¶ 109.] According to Plaintiff, a new grand jury was empaneled and “on March 24, 1999, based solely on the false evidence manufactured by the Northwestern Team, [Plaintiff] was indicted for the murders.” [1, ¶ 110.] On September 7, 1999, at Rimland's alleged insistence, Plaintiff pled guilty to the murder of Green and the voluntary manslaughter of Hillard, and he was sentenced to 52 years in prison.

         In 2001, Plaintiff filed a pro se post-conviction petition arguing that he had been coerced into pleading guilty and that evidence of Porter's guilt had been hidden from him. Plaintiff's post-conviction motion was denied, but it set in motion a years-long investigation that eventually led to Plaintiff's exoneration. In late 2005/early 2006, both Walter Jackson and Inez Jackson Simon recanted their statements, explaining that they provided false testimony due to promises made by Protess. In October 2013, the State's Attorney's Office announced that it would re-investigate the Hillard and Green murders. The investigation took one year and involved interviews of over 100 witnesses. On October 30, 2014, State's Attorney's Office moved to abandon the charges against Simon via a nolle prosequi. The Circuit Court granted the motion, vacated all charges against Plaintiff, and released him from custody. The nolle prosequi order does not indicate the reasons for its entry. Later that day, Cook County State's Attorney Anita Alvarez gave a press conferencing discussing her office's decision to abandon the charges against Simon.

         On February 17, 2015, Plaintiff filed this civil lawsuit against Protess, Ciolino, Rimland, and Northwestern University, seeking damages for their roles in his wrongful conviction and 15-year imprisonment. On April 16, 2016, the Court granted in part and denied in part Defendants' motions to dismiss. [72.] The Court dismissed Rimland as a Defendant without prejudice and dismissed Counts IV through VIII of Simon's complaint without prejudice as time barred. The Court permitted Simon to proceed against Protess and Ciolino on Count I (malicious prosecution) and Count IX (conspiracy) and against Northwestern University on his vicarious liability theories, as articulated in Counts I, II, and III of Simon's complaint. On May 2, 2015, Defendant Ciolino moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). He later moved to supplement this motion with a video of Alvarez's press conference following the dismissal of Simon's charges and transcripts from the court hearing during which the court granted the prosecutor's motion to vacate the charges against Simon.

         II. Legal Standard

         Rule 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” If “matters outside the pleadings are presented to and not excluded by the court, ” the Rule 12(c) motion “must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In evaluating a motion for summary judgment, the Court will construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827 F.3d 699, 704 (7th Cir. 2016).

         III. Analysis

         Ciolino argues that the Court should dismiss Simon's claim for malicious prosecution because Simon cannot demonstrate that his criminal proceedings terminated in his favor. To succeed on a claim of malicious prosecution under Illinois law, a plaintiff must demonstrate: “(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause; (4) malice; and (5) damages.” Szczesniak v. CJC Auto Parts, Inc., 21 N.E.3d 486, 490 (Ill.App.Ct. 2014). Illinois has adopted the majority rule that “a criminal proceeding has been terminated in favor of the accused when a prosecutor formally abandons the proceeding via a nolle prosequi, unless the abandonment is for reasons not indicative of the innocence of the accused.” Swick v. Liautaud, 662 N.E.2d 1238, 1242-43 (Ill. 1996); see also Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001). The Illinois Supreme Court has stated:

The abandonment of the proceedings is not indicative of the innocence of the accused when the nolle prosequi is the result of an agreement or compromise with the accused, misconduct on part of the accused for the purpose of preventing trial, mercy requested or accepted by the accused, the institution of new criminal proceedings, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.