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Did Cook County prosecutors overlook evidence and help send an innocent man to prison?

In 1999, a grand jury heard ample testimony implicating Anthony Porter in a double homicide. A month later, a different grand jury heard a sliver of evidence suggesting that Alstory Simon committed the same crime. So why was Simon indicted?

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In February 1999, Thomas Epach Jr., a top prosecutor in the Cook County State's Attorney's Office, took on the daunting task of overseeing evidence presented to a grand jury that was reinvestigating the high-profile murder case against death row inmate Anthony Porter. Nearly 15 years later, he'd remain uncertain whether the right man ended up behind bars.

Porter had been convicted in 1983 of the murders of Jerry Hillard and Marilyn Green in the bleachers of a Washington Park pool. The evidence presented against Porter at trial—including testimony from two eyewitnesses—had been overwhelming. One of those eyewitnesses testified that he had been robbed at gunpoint by Porter on the pool deck moments before the murders. Another said that, while in the pool area, he saw Porter shoot the victims and then run past him.

But in early 1999 another man, Alstory Simon, had been tracked down by Northwestern University's highly influential Innocence Project and confessed on videotape to the same crime—a confession the state's attorney's office later characterized as "coerced" by a private investigator named Paul Ciolino, who was working on behalf of Innocence Project director David Protess.

Within two days of the news broadcast of that video, but before the office had received an original copy of the tape containing the confession, Porter was released on bail by Cook County state's attorney Richard Devine.

Soon after, Epach, the office's expert on the Porter case, found himself in the rather astonishing position of reinvestigating the case against an inmate who, days earlier, had been facing imminent execution.

According to a 2013 sworn affidavit, Epach was concerned back in February 1999 about the means by which Simon's videotaped confession had been obtained—and about the continued strength of the evidence against Porter. "Based upon the quality and quantity of evidence indicating the involvement of Anthony Porter in the murders of Hillard and Green, the sworn testimony at trial and the sworn testimony procured by the February 1999 Grand Jury, the involvement of Paul Ciolino in obtaining the purported confession and the representation of Simon by an attorney with ties to Ciolino and Protess, I believed questions remained about the guilt of Simon and the innocence of Porter that needed to be fully investigated," the Epach affidavit states. "I expressed those concerns to Mr. Devine."

But state's attorney Devine was determined to go ahead with the prosecution of Simon anyway—a decision that Devine defended as recently as last week: "The reality is that prosecutors were presented with evidence that someone other than Porter was responsible for the Washington Park murders," Devine wrote in a December 31, 2014, op-ed in the Tribune. "We would have been derelict in our duties and rightly criticized if we had ignored that evidence. We did not."

The Players

However, a review of transcripts, obtained by the Reader, of grand jury testimony from seven witnesses shows that plenty of evidence—all of it against Porter—had in fact been overlooked by Devine's office.

While Devine's office did present to the February 1999 grand jury several weeks of lengthy testimony from original trial witnesses against Porter, from the Innocence Project's superstar professor and his students, and from private investigator Ciolino, among others, that grand jury did not indict Simon. In fact, grand jurors had been informed that the prosecution was not seeking an indictment as a result of the evidence presented. It was made clear from the outset that the state's attorney's office was using the grand jury merely to examine evidence in the case.

Instead, a second grand jury drawn from a new pool of jurors was impaneled the following month. Those grand jurors were given a fraction of the evidence the first grand jury considered, presented not over weeks but in a single afternoon. They heard none of the witnesses who bolstered the 17-year-old case against Porter, none of the Northwestern students or Protess, and none of the testimony that stirred skepticism in the first grand jurors and revealed that the Innocence Project had overlooked critical evidence against Porter.

As Devine tells it in his recent op-ed: "The prosecutors . . . presented evidence to the grand jury about the case—not only evidence pointing toward Simon but also evidence implicating Porter. After reviewing the evidence, the grand jury indicted Simon for the murders."

But the grand jury that issued the indictment did not hear the evidence Devine describes. The second grand jury heard from only two witnesses: Celeste Stack, a state's attorney, and Allen Szudarski, a Chicago police officer who'd recently been called in to review the case. Neither Stack nor Szudarski had anything to do with the original 1982 murder investigation, and neither had testified before the first grand jury. Furthermore, Stack and Szudarski were asked questions only about the evidence against Simon and therefore offered no testimony regarding the evidence against Porter—even though Szudarski says that, in the course of his investigation, "everyone that we interviewed said Porter did it."

Terry Ekl, one of Simon's new attorneys, says the existence of the second grand jury is a key development that helps explain the troubling story of what happened to his client.

"What I was never able to figure out until recently was, how the hell did that grand jury that heard all of the inculpatory evidence on Porter then go ahead and indict Simon?" Ekl says.

"Well, the answer is, [the state's attorney's office] went to a separate grand jury to secure the indictment."

The release of Porter, who was shown in news broadcasts leaping into Protess's arms as he walked out of prison, would be cited by then-governor George Ryan as the driving factor behind the abolishment of the death penalty in Illinois.

Meanwhile, based on the abbreviated evidence presented to the second grand jury, Simon was indicted and subsequently spent 15 years behind bars—until he was released in October, when Devine's successor, Anita Alvarez, found that Protess and Northwestern's pursuit of Simon involved "alarming" and "coercive tactics" that were "entirely unacceptable by law enforcement standards."

But none of that should have come as a surprise to the state's attorney's office. Many of those tactics had been described in detail to the first grand jury.

Josh Marquis, the district attorney of Clatsop County, Oregon, has been both a defense attorney and prosecutor in capital murder cases, has written about and lectured on wrongful convictions cases across the country, and has been following the Porter-Simon case since it broke in 1999.

After reviewing testimony from the first and second grand juries, Marquis says: "That first grand jury made all the sense in the world: 'What the heck happened here?' 'Did we get the right guy or did we not get the right guy?' That makes good sense to do that.

"What's disturbing is what came later."

The February 1999 grand jury questioning was conducted by Thomas Gainer, an assistant state's attorney. Epach directed Gainer in subpoenaing the proper witnesses and preparing the interrogations.  

Three eyewitnesses told the grand jury that they had either seen Porter—a well-known gang enforcer in the neighborhood whom police knew as a stickup man—fire the deadly shots, or placed him in the Washington Park bleachers.

Eyewitness Kenneth Edwards told the grand jury in no uncertain terms he had seen Porter shoot the couple.

"As you sit here today, can you tell this grand jury who it was that fired the shots?" Gainer asked.

"I sure can," replied Edwards.

"Who was it?" asked Gainer.

"Tony Porter," said Edwards.

Just before leaving the witness stand, Edwards was asked by one of the grand jurors why he thought Simon might confess to murders he hadn't committed.

"Your guess is as good as mine," said Edwards. "It just makes me laugh to see the situation as it is now."

Several grand jurors expressed skepticism about the holes in the students' investigation and about Ciolino's tactics, including his use of an office associate to pretend on video to have witnessed Simon kill Hillard and Green.

During his lengthy testimony Protess stated to the grand jury that he had known Ciolino for 12 years and that he used Ciolino to undertake tasks for the Innocence Project that, as a private investigator, Ciolino was qualified to carry out. But Protess claimed to be ignorant of some of Ciolino's activities. He also said he and his students remained in Chicago while Ciolino embarked on a trip to Milwaukee to find Simon.

"There were things that my students and I did on our own without Paul; there were things that Paul did on his own without the students," said Protess.

Protess and his students first stumbled upon Simon's name in court documents filed in Porter's appeal. In the filings, neighborhood acquaintances of Porter's mentioned Simon's name along with that of his ex-wife, Inez Jackson. In addition, Offie Green, the mother of one of the victims, said she believed Jackson and her boyfriend at the time (Simon) lured her daughter into the park to rob her.

But more importantly, Porter himself told the Innocence Project to look at Simon.

Protess and one of his students, Sean Armbrust, both told the grand jury that Porter told them during one of their prison visits that Simon shot the couple. Porter advised the professor and students to talk with Jackson's nephew Walter Jackson in Danville state prison, where he was locked up for murder. Walter Jackson, he said, would lead them to Simon's estranged wife, who would lead them to Simon.

Cioliono, using database searches, then tracked Simon to his one-story brick bungalow in Milwaukee.

Ciolino described for the grand jury in detail how he and his partner, Arnold Reed, conducted the interview with Simon.

"I had a videocassette with me. We call it a pretext statement. An employee of mine I had videotaped in my office the previous day indicated that he [had] seen Alstory Simon involved at this homicide scene and that he had seen him fire a weapon. And pretext simply means it's not true, this is something we made up for Alstory's benefit."

Ciolino then said that after playing the video in which his colleague lied about witnessing Simon commit a murder, he informed Simon of the avalanche of press he'd already received in Chicago.

"I was talking to him about the media coverage in Chicago," Ciolino said to Gainer, "telling him that Eric Zorn, a columnist in the Tribune, had been writing columns about him, that the Tribune had published a number of stories concerning this, the Porter case, and that CBS News, as well as a local affiliate, WBBM, had been running stories continuously for the last seven to ten days."

Then, from the next room, his partner, Reed, said the television was broadcasting a segment about Simon's alleged involvement in the crime; his estranged wife, Inez Jackson, was saying that Simon committed the murders.

"And Alstory is sitting there watching it and he's staring at it and he's listening to the whole thing," Ciolino testified. "So everything I just told him about the media, he's seeing it for himself now. And I had no idea this was on. He had no idea it was coming on. It just happened."

One of the jurors had taken note of this testimony and brought it back up when Protess was on the stand.

"This was just a happy coincidence in your opinion?" the juror said. "It just happened—that this happened to be on the day that he's there early in the morning, this news report with this interview comes on—"

"Actually it aired the evening before and—and they were then re-airing it the next morning as part of the CBS Morning News," said Protess.

"Yes. Or, could it have been that, you know, he popped it into the recorder and showed it?"

"All I can do is tell you what I've been told by Mr. Ciolino in terms of the sequence of events," said Protess.

"Hearing your story, hearing the professor's story, hearing other witnesses' stories gives me the impression that it's entirely possible you might be a pawn," a grand juror said to Innocence Project student Syandene Rhodes-Pitts.

"I know what I've been doing for the past month, and that has been investigating Anthony Porter's innocence," Rhodes-Pitts replied.

"Or guilt," the grand juror said. "He might be guilty?"

When it came to the testimony of the students, Gainer's questions exposed the project as having been incomplete compared to a professional criminal investigation, including the investigation run by the Chicago Police Department back in 1982.

Sean Armbrust was one of the project's most experienced student investigators. After she admitted to the grand jury that she wasn't familiar with the statements of all the witnesses against Porter, Gainer asked her why, after meeting with Porter in prison, she believed he was innocent.

"Well, the reason we were going to meet him was to ask him if he had committed the crime, but the first thing he said was that he was innocent," Armbrust told the grand jury. "And I have heard people say that before, but he was more convincing."

One by one during testimony on February 22, the team from Northwestern, including Protess, admitted to Gainer they were not familiar with the additional eyewitnesses against Porter and had done nothing to reach them.

"Mr. Edwards identified Anthony Porter as the shooter that night, did he not?" Gainer asked Protess.

"I would have to go back over the report," replied Protess.

Gainer then handed Protess the police report, which Protess said he couldn't read because he didn't have his reading glasses. Protess asked that Gainer read it to him, which he did.

In the statement Edwards told detectives he had gotten out of the pool in Washington Park after a swim and heard a gunshot. When he looked up he saw a muzzle flash from a handgun and saw Porter standing over one of the victims before firing two more shots into the body at point-blank range.

"Do you remember reading that?" asked Gainer.

"No," replied Protess. "I don't recall reading anything that specifically identified Anthony Porter. It's the last part I don't recall. I would have to go back and look at other documents to see how it was that he came to identify Tony Porter as the shooter."

"And your students didn't investigate these four men, did they?" Gainer later asked.

"No," said Protess.

"You didn't ask Paul Ciolino to find these four men?" Gainer asked.

"No," said Protess.

"You didn't go out yourself and look for those four men?" said Gainer.

"No," replied Protess.

"None of your group ever conducted any interview of those four men?" Gainer concluded.

"No," said Protess.

At another point, Gainer asked Armbrust if she was aware of Edwards's eyewitness statement to police.

"No, I guess I didn't see that part of the police report," Armbrust replied.

"What steps did you take to locate those four people?" Gainer asked.

"We did not take any steps," said Armbrust.

Gainer had a similar exchange with Thomas McCann, who was considered the unofficial student leader and expert in the investigation.

"You noticed in the police reports that there were four witnesses who were on the scene that night and talked to by the police at the police station, right?" asked Gainer, who then read the witnesses' names.

"Yes," said McCann.

"Are you aware that Kenneth Edwards told the police that night that Anthony Porter was the person who shot and killed Jerry Hillard and Marilyn Green?" Gainer asked.

"No," replied McCann.

"Did you read the police reports?" Gainer asked again.

"I believe I did," said McCann.

"You believe you read that in the police reports?" asked Gainer.

"I don't remember," said McCann.

"You don't remember?" said Gainer.

"No," McCann replied.

"You certainly never had any conversation with anyone about those folks, did you?" Gainer asked.

"No," replied McCann.

Gainer later asked, "What did you tell us your purpose was, what were you doing this for?"

"To find the truth. But I am a college student. I mean, this took a long time," McCann replied.

Syandene Rhodes-Pitts, another student, was also asked if she had tried to contact other witnesses during the students' investigation.

"No," said Rhodes-Pitts.

"Do you know who those people are?" asked Gainer.

"No," said Rhodes-Pitts.

Rhodes-Pitts failed to answer many of Gainer's basic questions about how the team of students carried out their investigation, and at least one of the grand jurors had taken notice.

During the open question period at the end of Rhodes-Pitts's testimony, one of the grand jurors said to her: "Hearing your story, hearing the professor's story, hearing other witnesses' stories gives me the impression that it's entirely possible you might be a pawn."

"I know what I've been doing for the past month, and that has been investigating Anthony Porter's innocence," said Rhodes-Pitts.

"Or guilt," replied the grand juror. "He might be guilty?"

"The class I am taking is investigative journalism, and we were given the case because there was no evidence linking him to the crime," replied Rhodes-Pitts.

"What would you say is your objective of the assignment you were given?" the juror asked.

"I believe the objective would be to find any evidence, interview anyone you could that would lead you to freeing this man," Rhodes-Pitts replied.

"Your objective is freeing him, not just investigating all of the facts?" asked the juror.

"Right, investigating the facts, and as the facts—as we had read the facts, there was no physical crime, physical evidence linking him to the crime, therefore, we proceeded with innocence," replied Rhodes-Pitts.

"I guess what I am suggesting is we have different stories about the objective of your class course, whether it's about investigative journalism, whether it's about trying to get someone who has in a court of law been found guilty to be—" the juror did not finish, as Rhodes-Pitts interrupted.

"I am sure you have been provided with a syllabus which would probably outline Professor Protess verbatim, but as far as where I was coming from, that's what I gave you, you know, that was my objective," Rhodes-Pitts said.

Anthony Porter upon his 1999 release from death row - SUN-TIMES ARCHIVES
  • Sun-Times Archives
  • Anthony Porter upon his 1999 release from death row

It's unclear what happened within the state's attorney's office from the time that grand jury ended and a little over a month later, on the afternoon of March 24, 1999, when a different grand jury would be asked to determine whether to indict Simon for the murders Porter had been convicted of.

The testimony was again presented by Gainer, who introduced himself to the new pool of jurors and called the first of two witnesses to the stand: Szudarski, the Chicago police detective.

Gainer asked if Szudarski had interviewed Simon's estranged wife, Inez Jackson, who had provided Northwestern with one of the affidavits stating Simon was the killer. Szudarski said he had interviewed her at a police station, and that she said Simon had shot the couple after an argument over drug money.

Six years after Szudarski's grand jury testimony, in 2005, Jackson would provide a videotaped recantation in which she stated that Simon had not committed the murders. Dying of AIDS, Jackson said she could not go to the afterlife knowing she had lied about her then-estranged husband. She said she had done it believing that Northwestern could help get her nephew out of prison on a murder charge, could help get her son out of prison on another charge, and would get money for her from Porter's civil lawsuit against the city, which they expected to be worth millions.

Szudarski never interviewed Simon directly but watched a copy of Simon's videotaped confession to Ciolino. During the second grand jury hearing Gainer did not ask Szudarski about any of the evidence that pointed to Porter as the killer. And it was not Szudarski's job to volunteer that information to the grand jury.

But Szudarski, who retired from the police department back in 2011 after spending 33 years on the force, is now able to speak freely about what he discovered back in 1999.

"You have to have blinders on as a homicide detective, but from what the witnesses told me, Porter had committed the murders," Szudarski says. "I talked to around nine people, and I don't think any one of them were even interviewed by Northwestern. Everyone that we interviewed said Porter did it."

Next, Gainer interviewed his second and final witness, assistant state's attorney Celeste Stack. Stack had interviewed Walter Jackson—the nephew of Inez Jackson who was imprisoned at Danville state prison on a murder charge and had spent time locked up with Porter himself.

Stack testified that Jackson told her Hillard had been selling drugs for Simon and that Simon had gotten upset with Hillard for stealing money from him. She recalled that Jackson had said that on the night of the murders Simon had dressed in a full track suit including a jacket, tucked up a handgun, and acted "spooky and real quiet" when he left in search of Hillard.

Jackson had gone on to say that Simon returned home and told him Hillard had been taught a lesson.

Stack was then dismissed from the witness chair. The jurors were left alone to deliberate. And shortly thereafter the foreperson announced that the grand jury had decided to indict Simon.

Alstory Simon leaving the Jacksonville Correction Center as a free man on October 30, 2014, in Jacksonville, Illinois - AP PHOTO/SETH PERLMAN
  • AP Photo/Seth Perlman
  • Alstory Simon leaving the Jacksonville Correction Center as a free man on October 30, 2014, in Jacksonville, Illinois

Of course, even after Simon was indicted, his lawyer would have ample opportunity to present evidence on his behalf, including testimony from the original set of grand jury hearings, in an attempt to show that perhaps the right guy had been convicted the first time around.

Except Simon's case never made it to trial. He instead was advised by his attorney, Jack Rimland, to plead guilty.

Rimland had a close professional relationship with Ciolino, who would later dedicate a book to him as a "friend and colleague" and would laud Rimland's "spirit and selfless acts of courage" in another book he wrote. In other words, the attorney defending a man who had confessed to a double murder was brought into the case by an admiring investigator working on behalf of the professor who'd built the case against the defendant—and who had helped set free the man initially convicted.

"We have confirmed that the attorney who represented Mr. Simon was contacted and referred to represent Mr. Simon directly by the very private investigator who had obtained this coerced confession," state's attorney Alvarez said at the October press conference at which she announced her decision to release Simon from prison.

Devine wrote in his Tribune op-ed last week that back in 1999 his office had not known this.

"During the investigation, Simon was represented by an attorney named Jack Rimland. There has been criticism of Rimland because of his alleged ties to Ciolino, the private investigator who took Simon's videotaped statement. Whatever the merits of those concerns, they were not made known to Gainer," wrote Devine.

But the grand jury testimony, initiated by Gainer's own questions, undercuts that statement.

During the first grand jury Gainer asked Protess directly whether Ciolino had procured Rimland as defense counsel to represent Simon.

"I am aware of the fact that Jack Rimland, who works in the same office space area as Paul Ciolino, is representing [Simon]," Protess responded.

"Did Ciolino say that he got in touch with Jack Rimland that day and hooked Jack Rimland and Alstory Simon up?" Gainer asked.

"I don't know if Paul got in touch with Jack Rimland directly and hooked them up. He reported to me, Paul did, that Jack Rimland was going to represent Alstory Simon, and I inferred [from] this they had managed to—that Paul had managed to get them together, but didn't ask him about it. Seemed like a logical assumption."

Epach himself stated in his 2013 affidavit that the state's attorney's office knew of the relationship between Protess, Ciolino, and Rimland.

"At the time of the release of Mr. Porter from custody, I was aware not only that the purported confession of Alstory Simon was obtained by Paul Ciolino, who was working on behalf of Anthony Porter, but also that Simon was being represented by attorney Jack Rimland, who had close ties to both Mr. Ciolino and David Protess, who were also advocating on behalf of the release of Anthony Porter," Epach stated.

Between the time Simon confessed in February and was sentenced in September, Rimland would present an award to Protess and his Northwestern students from the Illinois Attorneys for Criminal Justice for freeing Porter from death row. That is to say that while Rimland was Simon's defense attorney, ostensibly preparing for a murder trial, he presented an award to the team who had worked to get his client to confess to the murders on videotape.

"Our organization honors them for the extraordinary effort they demonstrated in establishing Porter's innocence before his execution date," said Rimland in bestowing the honor.  

Ekl, Simon's current attorney, says he is stunned that Rimland advised Simon to plead guilty.

"I've been doing criminal law 40 years," Ekl says. "If this case walked into my office, or I found out the evidence was a confession to Paul Ciolino under the circumstances that existed in this case—and [with] the evidence against Anthony Porter, with six people who knew him [who] continued to say he was the shooter—I would never plead my client guilty in a million fucking years.

"Take this [case] to trial. There's no way in the world that's a case that can sustain the burden of proving the murders beyond a reasonable doubt."

As Ekl sees it, Rimland felt a greater sense of responsibility to Protess and Ciolino than he did to Simon.

"From the get-go, Rimland was directing traffic to get Simon to plead guilty and go to the penitentiary and solidify the freedom of Porter," Ekl opines. "The worst part was that he wasn't working for Simon."

In August, Rimland told the Tribune: "There's no way I would have pled him guilty if he told me he didn't do it, no way," he said. "He wanted to plead guilty. I had no reason to believe during my representation or shortly thereafter that he was going to claim that he didn't do it."

It is unclear whether the state's attorney's office shared with Rimland the exculpatory evidence from the first grand jury.

In the seven months before Simon was sentenced for the murders, the state's attorney's office was responsible for filing its "Brady disclosure" to the defense. The Brady obligations stem from a 1964 U.S. Supreme Court case establishing that prosecutor's offices can't suppress material evidence that would demonstrate either the guilt or innocence of a defendant. To suppress such evidence is a violation of due process.

Marquis called the Brady disclosure "the most serious ethical obligation a prosecutor has in the United States."

"From what I can read, Thomas Epach in 1999 made a fairly compelling case for the fact that Anthony Porter committed those murders," Marquis says. "For the life of me I don't understand how within a year, much less within a month, the same office could come up with the conclusion Alstory Simon did it."

Marquis also says that if the state did share with the defense the exculpatory evidence, "a lawyer who had that information and did not use it would be at a minimum grossly negligent. If you add one more layer to a hypothetical, you're talking about something more serious: If in fact that lawyer had this information and had other relationships with people who had an interest in seeing his client jailed, then you're talking severe discipline up to and including disbarment.

"To me the Alstory Simon case is a tragedy of epic proportions because it is a failure of everything in the system, and I don't mean just the lawyers," Marquis continues. "I also mean the media, popular culture, and no one comes out well in it. It's sort of like peeking behind the curtain of the Wizard of Oz and finding there's just a guy there pushing buttons."

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