Who's on First?
Judge Thomas Byrne refused last week to grant an innocence certificate to Alstory Simon, a man framed by Northwestern Professor David Protess and Paul Ciolino for a 1982 double homicide.
Byrne’s ruling boils down to this: Byrne declared Simon innocent, but refused to grant Simon his certificate of innocence.
Untangle that one.
Byrne’s ruling means that Simon will not be granted some $200,000 in compensation for the 15 years he spent in prison.
The gist of Byrne’s tortured argument was that Simon participated in the conspiracy by Protess and Ciolino to free Anthony Porter. Simon did so believing that he would receive compensation and a shortened prison sentence. Because he took part in the conspiracy, Byrne argued, he shouldn’t get the certificate.
Here’s what Byrne actually said:
Without Simon the allegation of Porter’s innocence was unpersuasive, and the circumstances surrounding Porter’s release would not have been as dramatic or garnered the amount of attention that they ultimately did. Simon’s willing participation was crucial. By playing his role, Simon assisted Protess in influencing the public perception and manipulating the criminal justice system, resulting in the release of a convicted murderer.
Only in Chicago, where dozens of offenders have been released from prison and received certificates of innocent, then millions of dollars in settlements on claims they were coerced by detectives, could a judge make such a statement. Many of these claims were fraudulent, but the evidence of coercion was insignificant in comparison to the evidence that Simon was framed into confessing by the entire criminal justice system in the city.
Bryne’s ruling adds another chapter of disgrace to this criminal justice system.
A private investigator, Paul Ciolino, who was working with Northwestern Professor David Protess, burst into Simon’s apartment on a cold February day in 1999 armed with a handgun, claiming he had evidence against Simon for the murders, including witness statements from Simon’s ex-wife and another man. Ciolino trumped up other evidence as well and threatened Simon that if he didn’t go along with the plan, he would get a life sentence or perhaps even the death penalty. Play ball, Ciolino told Simon, and you’ll get a few years and we’ll give you a cut of the movie and book deal money.
In the six months between Simon’s arrest and his confession, he was in agony in the county jail. Simon said he did not want to confess to the crimes, but says his attorney, Jack Rimland, who was obtained for him by Protess and Ciolino, threatened Simon that if he didn’t plead guilty, he would get the death penalty or life sentences.
Think about something for a minute. Protess and Ciolino obtained an attorney for someone they were trying to get to confess to murder and that attorney encouraged that man to confess. That attorney tells his client to confess even though there is an abundance of evidence and witness statements that his client is innocent. The attorney does not even tell the trial judge or his client about this evidence.
So where is the “willing participation”?
What’s more, Simon did not know that at the very time he was waiting in the county jail a grand jury was being held to review the case. The grand jury was formed by a prosecutor, Thomas Epach, who insisted that Porter was guilty and Simon had nothing to do with the murders. Epach convened the grand jury to prove just that.
And the grand jury did so. Each of the Northwestern investigators was called to account for their investigation into the case and each time their claims imploded under the questioning by the prosecutor. Protess and his students admitted, for example, that they had not even bothered to question four central witnesses in the case, all of whom pointed to Porter as the offender. None of them said it was Simon.
This grand jury evidence was ignored by Epach’s boss, Dick Devine, who nevertheless instructed another prosecutor, Thomas Gainer, to go ahead and accept Simon’s confession. Accepting a fraudulent confession by a prosecutor?
Once again, neither Rimland, Protess nor Ciolino ever told Simon about this explosive testimony that would have vindicated him.
Simon went along with the plan to plead guilty, a plan that would get him a short sentence and possibly some wealth that Protess and Ciolino promised him, not because he wanted to, but because he thought it was the only course of action available to him. He believed he was boxed in. He was lied to by everyone, all the way from Northwestern University investigators to the prosecutors in the case. Not only was he lied to, but all the evidence in the case had been kept from him.
At one point, Simon did decide to plead not guilty and go to trial. He consulted with another attorney, David Thomas, and plotted to fire Rimland. Thomas’ name is listed in the court call of Simon’s case, stating that he was representing Simon at one of his hearings. Simon’s effort to obtain new counsel is a clear sign that he was trying to escape the plot that Rimland, Protess and Ciolino, and the prosecutors had trapped him in, along with statements he made to friends about how he felt he had no other choice but to plead guilty.
Simon says that when he told Rimland of his desire to obtain new counsel and plead not guilty, Rimland lashed out at him and threatened that if he didn’t stick with the plan, Simon would be indicted for another murder in Milwaukee. Sure enough, that night, Simon sees on the news that he is being discussed as a possible offender in a Milwaukee shooting. So, believing Rimland’s threats to be true, concluded he had no other choice, so he struck with the plan concocted by Protess and Ciolino.
Milwaukee officials stated in Simon’s hearing that he was not a suspect in the Milwaukee murder.
Simon was the dupe.
He got up in court and confessed to the murders, probably the biggest frame job in the modern history of the state.
Even after he was sentenced, Simon still held out hope that Protess and Rimland would be able to get him out. But as the months went by, he slowly realized how badly he had been duped.
There’s another little gem in Byrne’s ruling:
Without Simon the allegation of Porter’s innocence was unpersuasive…
The allegations of Porter’s innocence was never persuasive to anyone. That’s the central point of this entire saga.
The criminal trial in 1983 convicted Porter. The grand jury hearings in 1999 pointed to his guilt. A civil lawsuit against the detectives in the case completely failed to bolster Porter’s innocence or Simon’s guilt. In fact, the attorney representing the detective argued that Porter was guilty all along, and won. The state’s attorney said Simon’s constitutional rights were violated and set him free. Now the judge himself is declaring Simon innocent.
The allegations of Porter’s innocence were never persuasive even to the one’s making the claim, because they showed a pattern of corruption with the clear intent to push forward a fraudulent narrative.
Simon was lied to by Protess and Ciolino. He was coerced into confessing on tape after Ciolino presented him with false evidence and threatened him with violence, threatened with the death penalty or several life sentences.
He was lied to by his attorney who withheld crucial evidence from him, and who, according to Simon, threatened him with further fraudulent convictions when Simon tried to back out.
Simon was betrayed by prosecutors who established compelling evidence of his innocence but nevertheless kept this evidence out of court and accepted a confession from Simon.
In the wake of Byrne’s ruling, it’s compelling to stand back and review the legal decisions over the Porter/Simon saga.
Two prosecutors, Tom Gainer and Dick Devine, set Porter free and took Simon into custody in 1999.
Another prosecutor initiates a grand jury that rejects the decision to free Porter and indict Simon.
Simon filed two post-conviction relief petitions about his claim that he was innocent. Judge Evelyn Clay rejected both petitions, saying they were baseless.
After years of stalling over the case, Cook County Prosecutor Anita Alvarez announced she would review it. That review took a full year, long enough to ensure that Protess and Ciolino’s crimes ran past the statute of limitations.
Alvarez announced that Simon’s constitutional rights were violated by Protess and Ciolino. She said their conduct was quite likely criminal. She set Simon free from prison. Though she released him, Alvarez refused to declare Simon innocent and she stated there was no wrongdoing by her predecessors, Devine and Gainer.
Well, one wonders, if she saw the violations of Simon’s rights, why didn’t Gainer and Devine? One also wonders, if she saw the violations, why did Judge Clay not see them when she rejected Simon’s petitions for post-conviction relief?
Now Judge Byrne reviews the case and says Simon is innocent. Well, if he sees Simon is innocent, why didn’t Anita Alvarez? Why didn’t Judge Evelyn Clay? Why didn’t Thomas Gainer and Dick Devine?
Equally important, why did the media never see the violation of Simon’s constitutional rights? Why did they not see that Simon is innocent as Judge Byrne did?
What will be most interesting to watch in response to Byrne’s ruling is the local media. How will they use this ruling to justify their own conduct in the case? They have been looking for a way out of the mess for a long time.
In particular, watch Eric Zorn from the Chicago Tribune.
Watch the case very closely, for everyone, save the cops, are now looking for cover in the Crooked City.
Read Martin Preib's Gripping Investigation of the Wrongful Conviction Movement in Chicago