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Alvarez backed inmate's release despite aides' findings, report shows

Friday, June 09, 2017
Chicago Tribune
by Steve Mills

Nearly three years ago, then-Cook County State's Attorney Anita Alvarez threw out the murder conviction of Alstory Simon, saying that an investigation into the case and the "interests of justice" led her to "no other conclusion" but that Simon be set free — in spite of his videotaped confession, guilty plea and an apology to the victims' families.

In fact, the yearlong investigation, run by two of Alvarez's top deputies, came to a different conclusion.

According to the report from that investigation, never released publicly but recently obtained by the Tribune, prosecutors determined that evidence of Simon's guilt in a 1982 double murder outweighed evidence against Anthony Porter, who had been sentenced to death for the crime and released after Simon implicated himself.

The two Alvarez deputies, Fabio Valentini and Joseph Magats, the leaders from the Criminal Prosecutions Bureau, concluded there was not sufficient evidence to warrant setting Simon free.

"Ultimately," the July 2014 report states, "the credible evidence which incriminated Porter does not rise to the level that would offset Simon's own confessions to these crimes. ... Therefore, at this time, there is not sufficient evidence to seek to vacate Simon's convictions."

Nonetheless, three months later, Alvarez did just that.

"At the end of the day, and in the best interests of justice," Alvarez said at a news conference in October 2014, "we can reach no other conclusion but that the investigation of this case has been so deeply corroded and corrupted that we can no longer maintain the legitimacy of this conviction."

With that, Alvarez rewrote a key chapter of the state's death penalty narrative. No longer was the unraveling of Porter's case and his release from death row a crucial pivot point in Illinois' experiment with capital punishment. Instead, it was a curiosity — and possibly a wrongful conviction twice over.

Alvarez could not be reached for comment, though she has said in the past she only wanted to get to the truth of what happened and had no stake in the outcome of her office's investigation.

In the end, she said, the case against Simon was tainted by questionable methods employed by Northwestern University journalism professor David Protess, who led the investigation that helped free Porter, and his team.

The attorneys for Simon, who had encouraged Alvarez to re-examine the case against Simon and cheered her decision to release him, declined comment; in the past, they have said Protess conducted an unethical investigation to further the state's anti-death penalty movement and burnish his own reputation.

The attorneys represent Simon in a federal lawsuit that alleges he was framed for the murders. Simon is also seeking a certificate of innocence that would allow him to seek state compensation.


Porter's lawyer declined comment as well.

An attorney for a private investigator who worked with Protess said the report supports her belief that Alvarez allowed personal animus toward him to color her judgment. Alvarez —who had tangled with Protess on other cases — had long wanted to find a way to undercut the state's wrongful conviction movement, the attorney said.

"My takeaway is that Anita Alvarez epitomizes what we know about Cook County politics, in that she used her position of power to get payback against an institution and an individual who had been critical of her office and of her, and that had been successful at exposing deficiencies and injustices in the system," attorney Jennifer Bonjean said. "If you discredit this, then you make people distrust reform of the system."

The 1982 murders of Jerry Hillard and Marilyn Green at Washington Park on the city's South Side drew scant attention when they occurred. But in the 31/2 decades since, and particularly since 1999, the case has come to inform Illinois' troubled history with capital punishment.

Hillard and Green were shot to death before dawn on Aug. 15 as they sat in the bleachers of one of the park's pools. After a police investigation that the report concludes was "incomplete and less than thorough," Porter — who had a lengthy record of arrests, including three arrests for murder — went to trial and was convicted of the Hillard and Green murders. Eyewitness identification was the backbone of the prosecution case.

Porter was sentenced to death.

In 1999, an investigation by Protess and his students, as well as the private investigator Paul Ciolino, obtained statements from supposed witnesses that implicated Simon. What's more, Ciolino obtained a videotaped confession from Simon, in part by using a video with an actor to suggest to Simon that he had been implicated in the case. Valentini and Magats, in their 28-page report, were critical of Northwestern and Ciolino's investigative methods, and Protess in fact left the university in a dispute.

After Northwestern made the video public, then-State's Attorney Dick Devine approved the release of Porter, who at one time had come within 48 hours of being executed. Shaken by seeing Porter come so close to being put to death, then-Gov. George Ryan declared a halt to executions less than a year later and created a commission to study the state's death penalty. He later emptied death row.

In 2011, fueled in part by Porter's exoneration but also by other cases, the state legislature abolished the death penalty.

Devine, meantime, negotiated a plea deal with Simon. In exchange for pleading guilty, Simon was given a 37-year prison sentence. In court, he made a lengthy apology and, even in prison, he continued to admit he had killed Hillard and Green

Indeed, Simon told a television reporter from Milwaukee in a prison interview that he had committed the murders and, in a letter from behind bars the report cites, he told a lawyer on his team, David Thomas, that he killed Hillard in self-defense and Green by accident. The investigation also obtained notes from Simon's chief attorney, Jack Rimland, quoting Simon saying he shot Hillard after Hillard appeared to reach for his own gun.

After his release, Porter filed a federal civil rights lawsuit against the city, seeking damages for his wrongful conviction. The city, in defense, argued that Porter was guilty and that the only miscarriage of justice was that he had been released from prison.


Porter lost the lawsuit.

Simon appealed his conviction, to no avail. In 2005, lawyers James Sotos and Terry Ekl filed a post-conviction petition in which they claimed Simon was innocent. They alleged that Protess' team offered at least one witness money to accuse Simon of the murders and persuaded another to implicate Simon; those witnesses, the lawyers said, had backed away from those claims. Sotos and Ekl alleged in court papers that Ciolino and Rimland also had a conflict of interest because they were friends and shared office space.

Sotos and Ekl urged Alvarez to re-examine the case. She agreed and assigned it to her Conviction Integrity Unit, which she had formed amid a flurry of wrongful conviction cases. The inquiry included dozens of interviews and a review of reports and other documents. Alvarez called it the "most complicated and most challenging" investigation the unit had ever done.

The report said Protess and his students, as well as Ciolino, were not interviewed, in most cases because they declined to cooperate. Nonetheless, investigators questioned a number of witnesses, plus some witnesses who had never been interviewed before.

The report states that "multiple attempts" were made to interview Porter but that all of those attempts were unsuccessful.

A lengthy passage in the report deals with two interviews with Simon, who told investigators that he was innocent. He said he was not in Washington Park at the time of the murders. He said he was not a drug dealer, though at least one witness said he was; said Hillard was not selling drugs for him; and said Hillard did not owe him money. He said, too, that he left town after the shooting not to flee the investigation into the murders but because gang members had been breaking windows at his home.

Simon said he confessed because he felt threatened — Ciolino had a gun, he said — and because he was on drugs at the time.

In the report, Valentini and Magats focused on Simon's interviews — on when he began to suspect he had been railroaded, why he did the Milwaukee TV interview, whether he had written to Thomas and Rimland. He could not explain why he had written to Thomas and admitted his guilt, according to the report, when at the same time he said his trust in Rimland was eroding. Valentini and Magats called Simon's many confessions "significant."

Sotos, Simon's lawyer, called the prosecutors later to say he had discussed the letters further with his client, according to the report. Simon, Sotos said, probably made incriminating statements in letters to lawyers because he felt he needed to take responsibility "in order to have any chance of establishing credibility in an effort to obtain legal representation at that stage in the proceedings."

While the prosecutors' report concludes that there was enough evidence to convict Porter at trial, it says, too, that they were struck by how the evidence against Porter continued to morph. By the time of trial, they said, it was weaker than when he was arrested. Then when Simon was arrested, the case against Porter somehow grew stronger.

"It is difficult to understand why or how this happened," the report states, "but numerous witnesses suddenly identified Porter as the killer, never having done so before." And, indeed, Sotos and Ekl have said the case that was presented to the Cook County grand jury that eventually indicted Simon contained more evidence against Porter than Simon. The prosecutors' reports backs that claim.

But the report also says that Simon's supporters have mischaracterized the evidence.

"In short, Simon supporters, in their zeal to characterize Simon as innocent of these crimes, have mischaracterized the evidence implicating Porter in these crimes as overwhelming," according to the report. "It is not that at all. ... Porter very well may have killed Hillard and Green. But the evidence is less than overwhelming. The evidence is flawed." Only one witness against Porter, the report concludes, was credible. And that person was dead at the time of the prosecutors' investigation.

What's more, the report says none of the lawyers who came into contact with Simon before Sotos and Ekl ever heard Simon profess his innocence. And it says that, at age 46 at the time of his confession and arrest, he was no naive criminal.

"This certainly complicates his claims regarding coercion and having been misled," the report states.

While Alvarez was sharply critical of Protess and Ciolino when she announced in October 2014 she was setting aside Simon's conviction and paving the way for him to go free, saying their actions would never pass muster in a law enforcement investigation, she did not discuss the implications of the evidence gathered against Simon.

Instead, Alvarez largely articulated the points Sotos and Ekl had made on Simon's behalf. She noted that Simon began professing his innocence approximately a year into his prison sentence.

"He was going along with the story," she said of Simon's many confessions, although her office's report does not reach a similar conclusion. The report seems to view the confessions as genuine, in fact.

Pressed by reporters, Alvarez refused then to say if she believed Porter or Simon was the real killer. She said it was possible that, after more than three decades, the real killer might never be identified.

She never mentioned the conclusions of Valentini and Magats.



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