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Ciolino v. Simon

Court of Appeals of Illinois, First District, First Division

January 13, 2020

PAUL J. CIOLINO, Plaintiff-Appellant,
v.
ALSTORY SIMON, JAMES DeLORTO, TERRY A. EKL, JAMES G. SOTOS, MARTIN PRIEB WILLIAM B. CRAWFORD, ANITA ALVAREZ, ANDREW HALE, and WHOLE TRUTH FILMS, LLC, Defendants-Appellees,

          Appeal from the Circuit Court of Cook County No. 18 L 0044, Honorable Christopher E. Lawler Judge Presiding

          GRIFFIN PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Pierce and Walker concurred in the judgment and opinion.

          OPINION

          GRIFFIN PRESIDING JUSTICE.

         ¶ 1 This case stems from one of the most famous murder cases in the recent history of our state. The background of the case is gripping. It is no real surprise then that the events surrounding the case have spurred a movie, a book, and other media attention. But that media attention is the reason the parties are before the court today.

         ¶ 2 Plaintiff Paul Ciolino is suing several defendants for defamation and other causes of action for the statements they made about his alleged involvement in framing a supposedly innocent man for murder. The allegedly defamatory statements attributed to defendants are found in a book and the movie it inspired. Despite that the case reads like a movie script, there has been no fairytale ending for anyone involved.

         ¶ 3 The subject of the appeal is a bit less engrossing than the overall subject matter of the case. Here we are called to decide whether Ciolino's claims arising from the publication of the allegedly defamatory statements are barred by the statute of limitations. We hold that the claims against one defendant are time barred, but that the remainder of the claims are not. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

         ¶ 4 I. BACKGROUND

         ¶ 5 In 1982, Jerry Hillard and Marilyn Green were murdered in Washington Park in Chicago. Anthony Porter was convicted for the murders and was sentenced to the death penalty. Professor David Protess and other members of Northwestern University's Innocence Project took an interest in the case. Members of the Innocence Project reviewed evidence gathered by Porter's defense attorney during the case and they identified that another man, defendant Alstory Simon, was in the area of the murders close to the time that they were committed. The Innocence Project began to collect and evaluate evidence and, at some point, came to believe that Simon committed the murders, not Porter.

         ¶ 6 Plaintiff Paul Ciolino was employed as a private investigator and did work for the Innocence Project. Ciolino and another Innocence Project investigator traveled to Milwaukee to meet with Simon. Simon claims that Ciolino arrived at his home in Milwaukee, claiming to be a police officer from Illinois. Ciolino was armed with a handgun. He allegedly informed Simon that his team had developed evidence that pointed to Simon as the guilty party in the Washington Park murders. Simon was a drug addict and he maintains that he was intoxicated at the time of Ciolino's visit.

         ¶ 7 Ciolino allegedly told Simon that he had secured sworn statements from Simon's ex-wife Inez Jackson, and from others in which they averred that Simon committed the murders. Ciolino showed Simon the statements. Ciolino also showed Simon a video that the Innocence Project had made using a paid actor. The actor in the video stated that he was an eyewitness to the murders and that he saw Simon kill Hillard and Green. Simon also viewed video of a news report in which his ex-wife, Inez Jackson, claimed that she was with Simon when he committed the murders in Washington Park. Simon maintains that Ciolino promised him that he would receive only a short prison sentence if he confessed and that he would receive large sums of money from book and movie deals because of the intense publicity of the case.

         ¶ 8 As the meeting progressed, Ciolino allegedly informed Simon that he and his colleague were not actually police officers, but that they were members of the Innocence Project. Simon claims that Ciolino then told him that Ciolino and Protess would secure a lawyer to represent him in the murder case and that they would do whatever else was necessary to ensure that he would receive no more than a couple years in jail if he confessed. Ciolino then allegedly informed Simon that the police were imminently on their way from Chicago to arrest him, and that they were trying to help him, but that the only way Simon could avoid the death penalty was to provide a videotaped confession before the police arrived. Ciolino allegedly told Simon that confessing at that moment was his one and only chance to help himself. Simon provided a videotaped confession.

         ¶ 9 Armed with Simon's videotaped confession and the statements from Simon's ex-wife and her nephew, Walter Jackson, the Innocence Project undertook to free Porter from prison. After a petition was filed and the proceedings progressed, Porter's conviction was vacated. The Cook County State's Attorney simultaneously empaneled a grand jury that indicted Simon for the murders.

         ¶ 10 Ciolino allegedly followed through on his promise to secure an attorney to represent Simon. Simon, in fact, retained attorney Jack Rimland to represent him in the murder case. Jack Rimland was an attorney in Chicago that shared office space with Ciolino. Rimland purportedly convinced Simon to plead guilty by telling Simon that he needed to make the deal in order to avoid the death penalty or life in prison. Rimland, on Simon's behalf, did not challenge the confession that Simon gave to Ciolino nor did he present any other evidence to the court, including the evidence that implicated Porter in the first place and led to his conviction.

         ¶ 11 Simon further claims that Rimland told him to apologize to the victims' families in order to make his confession seem legitimate. During the time Rimland was representing Simon, Rimland maintained contact with his officemate Ciolino. For example, Rimland presented an award to Ciolino and other Innocence Project members for the work they did to overturn Porter's conviction even though he was concurrently representing Simon in a case for the same murders.

         ¶ 12 Simon eventually did plead guilty to the murders. He was sentenced to 37 years in prison. At his sentencing hearing, Simon apologized to the victims' families. Simon continued to claim responsibility for the murders in a televised news interview after his guilty plea. Simon also wrote letters to several individuals, including to Anthony Porter, apologizing for committing the murders. Nonetheless, many people did not believe that Simon was responsible for the crimes. Another private investigator, defendant James DeLorto, who did not believe Simon's confession and was skeptical of the Innocence Project's involvement, independently began to investigate Simon's case for the potential that he was innocent of the crimes.

         ¶ 13 Not surprisingly, the case generated significant publicity, including publicity generated by Ciolino and other members of the Innocence Project giving interviews and making statements to the press. Anthony Porter's exoneration for the Washington Park murders led to Governor George Ryan calling for a moratorium on the death penalty in Illinois.

         ¶ 14 Ciolino was interviewed on television following Simon's conviction. Ciolino described the tactics he used in securing Simon's confession. Ciolino acknowledged that he used a paid actor to make a video who identified Simon as the shooter. Ciolino stated that, after Simon was confronted with the video and other evidence, Simon just "gave up." Ciolino stated that he and his partner "just bull rushed [Simon] and mentally he couldn't recover." Ciolino stated that, as a private investigator, "I don't have any rules. The Supreme Court says I can lie, cheat, do anything I want, to get him to say what I want him to say." Also in that vein, Protess published a book in which he explained how, on another occasion, Ciolino posed as Hollywood producer Jerry Bruckheimer and offered a witness a movie deal in exchange for the witness to change testimony he had previously given.

         ¶ 15 Simon filed a pro se petition for postconviction relief claiming that his confession to Ciolino was involuntary and that he received ineffective assistance of counsel from Rimland. The court denied Simon's pro se petition.

         ¶ 16 Subsequently, defendants Terry Ekl and James Sotos undertook to represent Simon, and they filed a successive postconviction petition on his behalf. In his successive petition, Simon asserted an actual innocence claim and provided new evidence. The new evidence that Simon provided in support of his petition was that two of the witnesses that had implicated Simon in the murders, his ex-wife Inez Jackson and her nephew Walter Jackson, recanted their statements.

         ¶ 17 Inez Jackson and Walter Jackson explained that they had implicated Simon based on promises from David Protess of the Innocence Project. Inez Jackson reportedly had serious drug and alcohol problems and was allegedly given food, cash, alcohol, and other things of value by Protess and his team. In an affidavit, Walter Jackson admitted that he provided false evidence against Simon for money and for help with his own legal problems, and that he encouraged Inez Jackson, his aunt, to also provide false testimony in order to help with his legal troubles. It was additionally brought to light for the first time in Simon's successive postconviction proceedings that Inez Jackson had provided a statement to the police when they were originally investigating the murders in which she stated that she was with Simon the night of the murders and that he did not commit them.

         ¶ 18 Some concerns were raised about the Innocence Project's conduct in this case and in other cases. After Northwestern University conducted a court-ordered internal investigation into the controversial journalistic and investigative practices of the Innocence Project under Protess, he was separated from the University. Once the controversial practices of the Innocence Project were revealed, defendant Anita Alvarez, the Cook County State's Attorney, agreed to revisit Simon's case. After a year-long investigation in which more than 100 witnesses were interviewed, the State's Attorney Office concluded that, in light of the unlawful investigative conduct by Ciolino and Protess and the inadequate representation that Simon received, the case was so tainted and the convictions so called into doubt, that Simon's convictions could not stand. The State's Attorney Office moved to formally abandon all charges against Simon, and the circuit court granted the motion and vacated Simon's convictions. Simon was released from prison after serving 15 years.

         ¶ 19 At a news conference announcing the decision to drop the charges against Simon, Alvarez, as State's Attorney, stated that the "investigation by David Protess and his team involved a series of alarming tactics that were not only coercive and absolutely unacceptable by law enforcement standards, they were potentially in violation of Mr. Simon's constitutionally protected rights." Alvarez continued, expressing that, in her view, "the original confession, made by Alstory Simon and the coercive tactics that were employed by investigator Ciolino have tainted this case from the outset and brought into doubt the credibility of many important factors." She concluded that" [t]he bottom line is that the investigation conducted by Protess and private investigator Ciolino, as well as the subsequent legal representation of Mr. Simon, were so flawed that it is clear that the constitutional rights of Mr. Simon were not scrupulously protected as our law requires. This conviction therefore cannot stand."

         ¶ 20 Thereafter, Simon sought a certificate of innocence. The circuit court denied Simon's petition for a certificate of innocence under the statute governing such proceedings because the statute requires the petitioner to prove, among other things, that the petitioner did not, by his own conduct, voluntarily bring about his conviction. See 735 ILCS 5/2-702(g)(4) (West 2016). The circuit court found that Simon had, in fact, brought about his own conviction by confessing and by pleading guilty. However, the circuit court went further, finding that Simon "had certainly satisfied his burden" of demonstrating his innocence by a preponderance of the evidence.

         ¶ 21 In explaining its finding that Simon had demonstrated his innocence, the circuit court stated that it accepted Simon's allegation that he had gone along with Protess and Ciolino's plan to free Porter and to frame himself. The circuit court further accepted that Simon had done so based upon Ciolino's promises that he would receive a short prison sentence and would receive large sums of money when he was freed from prison with Protess's assistance. The circuit court credited Simon's allegations that Ciolino had impersonated a police officer, that Simon was threatened with the death penalty if he did not confess, and that Ciolino promised Simon money from book and movie deals and a short prison sentence if he confessed. In conclusion, the court noted, "it is more likely true than not that [Simon] is actually innocent of the murders of Hillard and Green."

         ¶ 22 On February 17, 2015, Simon filed a federal civil rights lawsuit for malicious prosecution against Ciolino, Northwestern University, David Protess, and Jack Rimland. In his suit, Simon sought damages for the parties' respective roles in his allegedly wrongful conviction. The allegations made in Simon's federal suit are consistent with those set forth above.

         ¶ 23 About three years before Simon was released from prison, in the Spring of 2011, defendant William Crawford wrote a document he titled "Chimera" that set forth his narrative that Simon was framed by the Innocence Project. "Chimera" was not officially published, but Crawford claims that he uploaded a copy of it to the internet. Then, while Simon's federal case against the Innocence Project parties was ongoing, on June 9, 2015, Crawford published a book entitled Justice Perverted: How the Innocence Project of Northwestern University's Medill School of Journalism Sent an Innocent Man to Prison. Justice Perverted has the same subject matter and has many verbatim passages from "Chimera." The book makes the case that Ciolino, Protess, and others framed Simon for the Washington Park murders in order to secure the release of Porter who was on death row. The book further makes the case that the Innocence Project had a more Machiavellian motive for securing Porter's release: to put an end to the death penalty in Illinois.

         ¶ 24 Crawford's book, Justice Perverted, inspired a documentary film made by defendants Andrew Hale and Whole Truth Films entitled "A Murder in the Park." The documentary features interviews and commentary from defendants Simon, Hale, Ekl, Sotos, Delorto, Crawford, and Alvarez. The documentary has the same theme as Justice Perverted, and the film's subjects claim that Ciolino engaged in a variety of crimes to secure a false confession from Simon. Both the book and the film track closely to the allegations made by Simon in his postconviction proceedings, some of which have been found credible in the courts and some of which have been admitted by Ciolino. The film's thesis is that Protess and the Innocence Project wanted to end the death penalty in Illinois and that they were willing to use any means to accomplish that objective-including framing an innocent man for murder.

         ¶ 25 Ciolino has his own theory about the motives behind the individuals on the other side of the dispute. Ciolino contends that the whole effort to free Simon was an undertaking aimed at discrediting the Innocence Project and the wider wrongful conviction movement as a whole. The narrative Ciolino advances begins with defendant DeLorto. DeLorto has a law enforcement background and has made negative statements about the work of Protess in the past. During the course of his work as a private investigator, DeLorto worked with attorneys Ekl and Sotos. Ciolino maintains that Ekl and Sotos undertook to represent Simon, with DeLorto as their investigator, "with any eye toward using the case to discredit the Porter exoneration and smear David Protess and Northwestern University."

         ¶ 26 Ciolino contends that defendant Crawford became involved with DeLorto and with Simon's lawyers, Ekl and Sotos, and wrote Justice Perverted to disseminate their false narrative that Simon was framed by the Innocence Project. Ciolino further contends that DeLorto and his cohorts enlisted defendant Martin Preib to help them combat the wrongful conviction movement. Preib began to author a blog entitled "Crooked City: The Blog About the Wrongful Conviction Movement." Ciolino claims that Prieb used the blog to circulate false and misleading narratives about exonerations, including the Porter exoneration. It is Ciolino's position that Crawford's book, Hale's documentary, and Prieb's blog were all conceived as part of a conspiracy to disrupt the "innocence industry."

         ¶ 27 Similarly, Ciolino contends that Anita Alvarez dismissed the charges against Simon because she harbored resentment towards Protess and the Innocence Project because of her supposed pro-law-enforcement leanings and because Protess had been critical of her in the past. Ciolino opines that Alvarez had been nationally embarrassed in another case in which Northwestern was involved and that Alvarez had become dead set on doing anything she ...


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