The former chief of criminal prosecutions for Cook County is questioning whether his boss at the time, Cook County State’s Attorney Richard Devine, freed a convicted killer and put an innocent man behind bars for a double murder after failing to thoroughly review key evidence, according to a sworn affidavit obtained by the Chicago Sun-Times.
Thomas Epach Jr., a highly regarded retired prosecutor, wrote in the affidavit that Devine’s decisions were “highly unusual, if not unprecedented” in the case of Anthony Porter, who was convicted of a double murder in 1983 but whose conviction was thrown out 16 years later.
Porter’s release from Death Row in Illinois made national headlines and served as a driving force behind then-Gov. George Ryan’s decision to declare a moratorium on executions in Illinois.
Porter was freed after a private investigator — who was working for free with a Northwestern University journalism professor and his students — obtained a videotaped confession from another man, Alstory Simon, in 1999.
Simon, now 63, pleaded guilty to the murders that year and is serving a 37-year prison term. He is eligible for parole in 2017.
In Epach’s affidavit, he said Devine decided to release Porter from prison less than two days after the media broadcast the videotaped confession of Simon.
“In my years of experience as a prosecutor, it is my opinion that it was highly unusual, if not unprecedented, to make a decision to release an individual convicted of murder based upon the broadcast of a video, the reliability and authenticity of which had not been thoroughly investigated and established.”
“I believed that questions remained about the guilt of Simon and the innocence of Porter that needed to be fully investigated,” Epach said in the affidavit. “I expressed these concerns to Mr. Devine. Subsequently I was told that the decision to prosecute Alstory Simon had been made by Mr. Devine.”
In an interview, Devine said he couldn’t remember Epach cautioning him about charging Simon and freeing Porter.
“I don’t have any recollection of Tom Epach raising any substantive opposition to either doing what happened with Alstory Simon or what happened with Anthony Porter,” Devine said Tuesday.
“It doesn’t mean that someone, including Tom, might not have said he didn’t like the private investigator,” Devine said. “But as far as someone saying this went in the wrong direction, I don’t recall anything about it.”
Epach didn’t return a message seeking comment.
Epach provided the affidavit in September to Simon’s current attorneys, who are trying to free him from prison. They supplied it to Cook County State’s Attorney Anita Alvarez, who decided to review Simon’s conviction last year. That review continues.
Neither Simon’s attorney, Terry Ekl, nor prosecutors would discuss the affidavit. Nor would they discuss a recent meeting between Simon and the current chief of criminal prosecutions in Cook County, Fabio Valentini.
In the affidavit, Epach said the circumstances surrounding Simon’s confession “needed to be thoroughly investigated.”
Epach said there was “substantial credible evidence to support the conviction of Anthony Porter” and “that no physical evidence existed which tied Simon to the murders.”
Some of that evidence came from a grand jury assigned to look at the murders after Porter’s release.
Epach was put in charge of presenting evidence to a grand jury impaneled to reinvestigate the murders of Jerry Hillard and Marilyn Green, who were shot in the early morning hours of Aug. 15, 1982, in bleachers near a pool in Washington Park on the South Side.
The evidence confirmed Porter’s alleged involvement in the killings, Epach said in the affidavit.
The grand jury heard from four witnesses who said they saw Porter at the pool on the morning of the murders. One of the witnesses, Kenneth Edwards, said he saw Porter pull the trigger, according to a grand jury transcript.
Assistant Cook County State’s Attorney Thomas Gainer asked Edwards: “Can you tell the grand jury who it was who fired those shots?”
“I sure can,” Edwards said.
“Who was it?” Gainer said.
“It was Tony Porter,” Edwards said.
Another witness testified at Porter’s 1983 trial that he saw Porter pull the trigger. He later modified his testimony, saying only that he saw Porter run past him from the bleachers.
A police officer also testified he saw Porter in the park after the shootings.
At the time of his trial, Porter’s alibi was that he wasn’t at the park but elsewhere, drinking with a friend.
Even though grand jury testimony implicated Porter, Simon decided to plead guilty to the murders.
Devine said there was evidence implicating both Porter and Simon in the killings. “This was not something you can say was 100 percent this way or that way,” he said.
“Whatever happens with this process happens,” Devine said of the current review of the case by Alvarez’s office. “But none of this rose to a substantive claim at the time.”
“I can’t go into the mind of a person who pleads guilty,” Devine added.
Simon’s attorney, Ekl, responded: “This is one of the greatest tragedies in the history of the criminal justice system.”