Prosecutors Get Pass in Key Wrongful Conviction Case?
It was an incident captured on video that devastated the image of the Chicago Police around the world, a drunken, irate, off-duty police officer, Anthony Abbate, brutally attacking a defenseless female bartender, Karolina Obrycka.
It took place in 2007. Abbate was charged and found guilty of Aggravated Battery, and sentenced to probation. He was also fired, the superintendent assailing Abbate’s conduct in media events.
A theory emerged in the lawsuit that was difficult for many Chicago cops to digest. It was the claim that the department somehow had gone to bat for the officer, that there was a coverup to try and protect him, a “code of silence.”
It was so difficult to digest because most cops were furious about the attack, as disgusted as any member of the public.
Nevertheless, the “code of silence” claim became central in the bartender’s federal lawsuit against not only Abbate, but also against the City of Chicago. Obrycka’s lawyer, Terry Ekl, went after the city as well as Abbate based on the argument that Abbate attacked Obrycka because he enjoyed “an air of impunity” because he was a cop.
From the Tribune:
At the center of the trial was the allegation that a long-standing code of silence protects officers who use excessive force or engage in other misconduct. As a result, Obrycka's lawyers maintained that Abbate acted with impunity in the bar because he was unafraid of consequences.
For such a legal claim against the city to go to trial is rare. Obrycka's lawyers waged a five-year legal fight. The city at no point offered her a settlement, calling the case a matter of "principle" in part because Abbate was off-duty at the time of the beating.
"She's been through a lot, and a lot of people would have caved in under the pressure of what she had to go through," said her attorney Terry Ekl, who embraced his client after the verdict was announced.
With the jury's favorable verdict, Ekl said, the city also will have to pay substantial legal fees racked up by Obrycka's lawyers over the legal fight, but he maintained far more was at stake than money. The verdict sent a strong message about how the Police Department is run, he said.
"This is putting the Chicago Police Department right on the front burner for everyone to take a look at," he said. "But for that (video), Anthony Abbate would still be a police officer today. If it became Karolina's word against Anthony Abbate ... this case would have gone nowhere."
Would it? Would the agencies that investigate police misconduct have given Abbate a pass without the video? Would the police department have backed Abbate up if they believed he had in fact brutalized the bartender just because he was a cop? That’s a powerful prediction by Ekl, and a stunning condemnation of the police department.
As it is, a jury clearly bought Ekl’s arguments about the police “code of silence,” awarding his client a large settlement. It’s a case cops talk about among themselves to this day.
Times have changed.
Another high-profile case now asks some of the same questions about a “code of silence” among attorneys, especially prosecutors and former prosecutors, including Ekl. Only this case is more than a shocking, despicable battery against a woman by an off-duty cop in a bar.
This one involves a brutal double murder and the complete breakdown of the entire criminal justice system in the state of Illinois.
At the very time Ekl was working the Abbate case, he was representing Alstory Simon, a man coerced into confessing to a double murder he did not commit. Simon’s confession, obtained by a private investigator, Paul Ciolino, working with Northwestern University professor David Protess and several students, paved the way for Anthony Porter to be released from prison in 1999. Simon’s confession was the key piece of evidence that allowed Porter to go free.
Porter’s exoneration was central to the wrongful conviction movement in Chicago and initiated several other equally suspicious exonerations. It also compelled then governor George Ryan to end the death penalty.
After Simon was sent to prison, he began claiming he made the confession because Ciolino threatened him with violence. Ciolino, Simon claimed, offered two choices: conviction for the murders and a possible death penalty, or go along with Coliolino’s plan, confess, and get out in a few years. Furthermore, if Simon played ball, he would also make money through movie and book deals. Boxed in, Simon grudgingly made the confession because of Ciolino’s threats against him.
But then something unforeseen took place. A top prosecutor, Thomas Epach, knew the evidence in the original Porter murders backward and forward. He was certain Porter was guilty and he didn’t believe Simon’s confession. He told his boss, Dick Devine, as much, but Devine went ahead and let Porter out of prison. Devine also took Simon into custody.
Furious, Epach initiated a grand jury investigation into the murders. He sent underling Thomas Gainer into this grand jury with instructions to get to the bottom of the case. Gainer did so.
One after another, Gainer called Protess, Ciolino, and the students to the stand, reviewing in detail their “investigation” into the murders. From the outset, their “investigation” fell apart, an image emerged of students being blindly led around by a professor and private investigator whose conduct and motives, were, at best, questionable, at worst, criminal.
As one example of how ludicrous the Northwestern “investigation” was, Protess and his students admitted they hadn’t even talked to four of six witnesses in the case.
And why not, the prosecutor asked.
Well, we were too busy with our other classes, one of the students said.
With all this testimony and evidence that the Northwestern case was a fraud, Epach tried to get Devine to retry Porter and not proceed with a criminal case against Simon. But even with the grand jury evidence, Devine wouldn’t budge. The reason is that Devine was facing a media deluge in support of Northwestern’s claims by reporters willing to parrot Northwestern’s claims without checking any facts.
Devine told Gainer, the same prosecutor who led the grand jury, to go into court and accept a confession from Simon. Simon did not know about the grand jury evidence that exonerated him or the fact that a top prosecutor was arguing for his innocence.
Gainer went ahead and took the confession, even though there was a mountain of evidence exculpating Simon.
It was a complete breakdown of the justice system and the worst betrayal of ethics by a prosecutor imaginable.
Another group victimized by Devine and Gainer’s refusal to adhere to the evidence was the Chicago Police Department. The Northwestern theory claiming Porter was innocent was based in large part on the fraudulent claim that the detectives framed Porter.
This theory became the foundation of Porter’s lawsuit against the detectives after he was set free. A six-year campaign by Porter’s lawyers vilified these detectives in the media and the courtroom. The detectives won the case in court, and Porter got nothing. But the damage had already been done. The Porter exoneration spurred other fraudulent exonerations that also falsely vilified the police. In most of those cases, the city settled, the lawyers become rich on false exonerations.
Only in the Crooked City.
In fact, the machinations of Northwestern in the Porter case spurred much of the anti-police hysteria now sweeping the country.
As it was, Simon languished in prison for more than a decade. A group of people looking closely at the evidence began fighting for Simon to be released from prison. They pressed their case with the current prosecutor, Anita Alvarez, who took over the office after Devine left.
Faced with so much evidence of corruption in the case, Alvarez released Simon from prison last year, the central case in the wrongful conviction mythology now completely obliterated.
But, tellingly, Alvarez would not declare Simon innocent. She only pointed to the corrupt tactics of Protess and Ciolino in getting a confession from Simon as justification for Simon’s release. It was an incredible turn of events that the chief prosecutor in the county, after a yearlong review of the case, held up her hands in confusion and said she couldn’t be sure who truly committed the murders.
The reason becomes painfully clear. If Alvarez did admit Simon was innocent, it would point a finger at her predecessor, Dick Devine, and admit that the prosecutor’s office was involved in a major scandal. It would also point an ominous finger at her own administration for not delving into the corruption of the Simon case years earlier.
So Alvarez got up in front of the media on the day she released Simon and made the incredible claim that her office could find no wrongdoing on the part of Devine’s office.
Alvarez’s declaration that Gainer and Devine did nothing wrong was an incredible favor to the two men.
Alvarez wasn’t the only one. Right after Alvarez let Simon out of prison, Ekl and his colleagues on the case immediately filed a $40 million lawsuit against Northwestern, Protess, Ciolino, and an attorney Ciolino and Protess had obtained to represent Simon when he confessed.
But Ekl did not name in the lawsuit the prosecutors in the case, Devine and Gainer.
In short, Ekl ignored the overwhelming evidence that Devine and Gainer were co-conspirators in the framing of Simon, along with Protess, Ciolino, and Northwestern.
To this day, Ekl refuses to acknowledge the prosecutor’s central role in the Simon travesty, not only in his lawsuit, but in his frequent statements to the media. Instead, he focuses only on the Northwestern investigators. Furthermore, Ekl refuses to acknowledge the clearly suspicious claims by Alvarez that her predecessors Devine and Gainer were innocent of any wrongdoing.
Ekl, himself a former prosecutor, gives not only Devine and Gainer an incredible pass, but also Anita Alvarez, when he doesn’t attack her suspicious claims that she still can’t decide who committed the original murders.
Some of Ekl’s claims about the police department now haunt his own “representation” of his client Alstory Simon.
"Officers routinely cover up the misconduct of other officers," Ekl told the Chicago courtroom. "We call it a `code of silence. ... Misconduct without consequences."
Rather than condemn the prosecutors’ role in destroying the life of his client (and the lives of all the detectives who originally fingered Porter) Ekl raises none of these issues in either his lawsuit or in his media statements. He also lets Alvarez get away with claiming there was no wrongdoing in the prosecutors’ administration.
But how can that be?
How could Alvarez find corruption in the manner by which Protess and Ciolino obtained a confession from Simon in the 1999, but not in the conduct of the prosecutors at the time? Simon was in the county jail for six months waiting for his trial. How come Devine and Gainer could not find the evidence that Alvarez found more than a decade later? It was all right there. After all, there was a prosecutor right in Devine’s office telling him that the case was crooked as hell.
Ekl ignores all of this evidence that Alvarez is playing politics in the case. When Alvarez finally released his client, Alstory Simon, from prison last year, Ekl, incredibly, gushes over Alvarez’s decision:
“We’ve been working for Alstory Simon for 10 years, and for a while, I never thought this day would come,” he said. “But we were increasingly encouraged over the last year, where Anita Alvarez and her staff conducted the reinvestigation of the case; and I just can’t say enough good things about the way her office handled this case, the thoroughness of their investigation. I always sensed they were trying to do the right thing, and come to the right result, and they did that today.”
Here’s what Ekl could have said.
After more than a decade of presenting our evidence to the prosecutor that our client was wrongful convicted, the state’s attorney finally acted. It is disappointing that it took so long and that Alvarez did so only when she was boxed in by so much evidence. Her refusal to declare my client, Alstory Simon, innocent and Anthony Porter guilty is troubling, given all the evidence of misconduct by Northwestern investigators in this case and others. Equally troubling is her refusal to point out the clear misconduct by her predecessor Dick Devine in this case, whose decision to arrest, indict, and convict my client is one of the greatest abuses of justice by a prosecutor in the state’s history. Alvarez’s refusal to point out Devine’s corruption is not only an abuse of my client’s rights, but a devastating blow to the entire criminal justice system, including the police.
But Ekl didn’t. He let two generations of prosecutors completely off the hook. There was no pontificating about reforms in the prosecutor’s office, no questions about how they conduct their investigations.
Talk about professional courtesy. Talk about a code of silence.
This case involved a double homicide. After the Porter case, prosecutors began rolling over on one wrongful conviction case after another. One wonders, would they have done so if Devine and Gainer had stood firm on the Porter case, if they had allowed the case to be guided by the evidence?
If they had, the wrongful conviction movement might have been dead on its feet all the way back in 1999, and hundreds of cops would not have faced fraudulent accusations of coercing confessions from so-called “innocent” men.
All of this brings us back to Alstory Simon, Ekl’s client. Is Ekl’s unwillingness to point out the magnitude of the corruption in the prosecutor’s office influencing his representation of Simon?
Well, let’s take a look.
Whenever an inmate is released from prison on a wrongful conviction claim, his attorneys immediately file a petition for a certificate of innocence (COI). The COI is a declaration by a judge that the individual is innocent of the crime.
The COI is crucial because it compels the state to pay the former inmate for his wrongful incarceration. For Alstory Simon, this would have amounted to around $200,000.
Granting the COI also paves the way for the former inmate’s lawsuit, for who could challenge a former inmate’s lawsuit when a judge has declared that former inmate innocent?
Simon’s petition for a COI seemed a mere formality.
Ekl appeared at 26th and California in front of Judge Thomas Byrne. In both his petition and his presentation to Byrne, Ekl did not name the misconduct by either Devine or Gainer when they took his client into custody in 1999. Instead, Ekl, just as he had in his lawsuit, focused his entire petition on the misconduct of Northwestern investigators.
In an incredible ruling, Judge Byrne admitted that Simon was innocent of the murders, but he wasn’t getting the certificate of innocence. Downplaying the threats of violence, the death penalty, and the trumped-up evidence Ciolino used against Simon to get him to confess, Byrne argued that Simon’s willingness to go along with the confession because Ciolino also promised him wealth and money through movie and book deals made Simon a kind of co-conspirator.
But the fact that Ekl failed to mention the role of the prosecutors in Simon’s wrongful conviction also seemed to factor into Byrne’s decision:
…Petitioner’s attempt to recover the from the Court of Claims is not appropriate when his allegation of wrongdoing occurred at the hands of David Protess, Paul Ciolino and the Northwestern School of Journalism. He alleges no wrongdoing on the part of the state.
Did Ekl’s unwillingness to finger the prosecutors cost his client the $200,000 from the loss of the COI? Did it hurt his civil lawsuit?
Ekl’s statement about police corruption in the Abbate case comes to the forefront again:
"This is putting the Chicago Police Department right on the front burner for everyone to take a look at," he said.
Now it’s Ekl who’s on the front burner for everyone to take a look at. Now it’s a code of silence that seems to be emerging among attorneys, particularly prosecutors and former prosecutors in a double homicide case, one that devastated the justice system, in particular the police.
It’s not a pretty picture.
It forces one to trace many lines of evidence from the Porter murder victims all the way to the highest reaches of the city’s most powerful offices, lines that, taken together form a kind of outline of the Crooked City.
Martin Preib is a Chicago Police Officer and writer. His first book, The Wagon and Other Stories From the City, was published by the University of Chicago Press. His second book, Crooked City, is available on Amazon. His articles have appeared in Playboy, The Chicagoan, Virginia Quarterly Review, Tin House, and New City. He is currently working on his third book about former Chicago Police Commander Jon Burge and an arson in 1987, titled Burn Patterns.