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People v. Simon

Court of Appeals of Illinois, First District, First Division

May 22, 2017

ALSTORY SIMON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, Criminal Division No. 99 CR 7699 Honorable Thomas Byrne, Judge Presiding

          JUSTICE SIMON delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Harris concurred in the judgment and opinion.


          SIMON JUSTICE.

         ¶ 1 Alstory Simon (petitioner) appeals from a circuit court order denying his petition for a certificate of innocence. Petitioner argues that the circuit court erred when holding that he voluntarily caused his own conviction and when denying his petition based on the lack of State's misconduct. For the following reasons, we vacate the order and remand the case for further proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 The petition alleged the following facts. On September 7, 1999, petitioner pleaded guilty to the murder of Marilyn Green and the voluntary manslaughter of Jerry Hillard and was sentenced to concurrent terms of 37 years and 15 years, respectively. On October 14, 2014, petitioner's convictions and sentences were vacated. On January 28, 2015, petitioner filed his verified petition for a certificate of innocence pursuant to section 2-702 of the Illinois Code of Civil Procedure (735 ILCS 5/2-702 (West 2012)).

         ¶ 4 Anthony Porter was previously found guilty in the murders of Marilyn Green and Jerry Hillard in September 1982 and sentenced to death. In late 1988, with the execution of Porter approaching, Northwestern Medill journalist professor David Protess, private investigator Paul Ciolino, and several Medill journalism students began to investigate Porter's case in an attempt to free him from death row. To claim Porter's innocence, Protess and Ciolino needed an alternate suspect. Although petitioner's name was never mentioned in the police investigation, over the course of several weeks, Protess and Ciolino fabricated four pieces of evidence in an attempt to dismantle the case against Porter and frame petitioner.

         ¶ 5 In December 1998, Protess had Ciolino obtain an affidavit from eyewitness William Taylor. Taylor witnessed the murders of Green and Hillard in the bleachers of the pool in Washington Park and testified at Porter's trial that he saw Porter shoot Hillard and Green. Ciolino approached Taylor and convinced him to sign an affidavit, recanting his trial testimony and indicating that Taylor never saw Porter the night of the crimes. The affidavit omitted the portion of Taylor's statement that he did see Porter run past him that night as Porter fled the scene of the crime, and that and there was no doubt in Taylor's mind that Porter committed the murders.

         ¶ 6 Next, after receiving his name from Porter, Protess made inmate Walter Jackson a number of promises to induce Jackson to sign an affidavit claiming that petitioner had told him, 17 years earlier, that he shot Hillard and Green. Walter called petitioner's estranged wife, Inez Jackson, to convince her to help Protess free Porter from prison and to frame petitioner.

         ¶ 7 On January 29, 1999, Protess, Ciolino, and two Medill students visited Inez Jackson in Milwaukee, Wisconsin, and obtained her affidavit that implicated petitioner in the 1982 murders. In her statement, Inez falsely indicated that she was with petitioner when he shot Hillard and Green.

         ¶ 8 Petitioner alleged that Ciolino and one of his partners duped petitioner into filming a confession. Initially, in December 1998, Protess sent two of his female students to petitioner's house to interview him. After the students left the house, Protess confronted petitioner and accused him of the murders. Then, Protess sent Ciolino to force a confession from petitioner. On February 3, 1999, Ciolino impersonated a police officer and entered petitioner's home while armed with a handgun and detained him there. Petitioner was under the influence of narcotics at the time. Ciolino used a variety of tactics to obtain a false confession from petitioner, including threats, fabricated evidence, false statements, promises, and money.

         ¶ 9 Ciolino showed petitioner a videotape of a man, who falsely claimed that he saw petitioner commit the murders. He threatened petitioner and mentioned that he would hate to see petitioner have an accident in his home. He showed petitioner the broadcast of Walter Jackson's and Inez's statements claiming that petitioner committed the murders. Ciolino told petitioner that he was facing the death penalty, that police were on their way to petitioner's home to arrest him, and that he could only avoid the death penalty by providing a statement that he shot the victim in self-defense. Ciolino also told petitioner that he had to act quickly because Ciolino could no longer help him once the police arrived.

         ¶ 10 Ciolino promised petitioner that he would receive free legal representation, that Protess would ensure he received a short sentence, and that he would obtain large sums of money from books and movie deals. Petitioner rehearsed a statement with Ciolino and then provided a videotaped statement claiming responsibility for the 1982 murders. Protess immediately provided petitioner's confession videotape to CBS-TV, who played the confession on local television. The next day, Porter was released from custody and petitioner was arrested.

         ¶ 11 Ciolino arranged for his friend, attorney Jack Rimland, to represent petitioner free of charge. Petitioner alleged that Rimland never truly represented petitioner's interests. Instead, Rimland ensured that petitioner's false confession, the witnesses' statements, and all of the inculpatory evidence against Porter would not be scrutinized. Before petitioner's arrest, Rimland stated publicly that "obviously if [petitioner] is charged, ...

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