Court of Appeals of Illinois, First District, First Division
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.
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.
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
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
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
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, ...