Northwestern, ex-professor lose bid to toss out $40 million case

A federal judge Tuesday allowed a $40 million lawsuit to proceed against Northwestern University, a former journalism professor and a private detective who are accused of conspiring to frame a man with a double murder.

Alstory Simon spent about 15 years behind bars for the slayings of Jerry Hillard and Marilyn Green. But Simon’s conviction was reversed in 2014 after Cook County State’s Attorney Anita Alvarez conducted an investigation that concluded he was railroaded.

Simon is now suing Northwestern as well as former journalism professor David Protess and private investigator Paul Ciolino.

Protess and Ciolino allegedly fabricated evidence that led to Simon’s conviction and the release of Anthony Porter, who was originally convicted of the 1982 killings.

Simon Decision

Northwestern was aware that Protess and Ciolino were using unethical practices to conduct such wrongful conviction investigations, according to Simon’s lawsuit, filed last year.

Simon’s conviction was hugely important — prompting then-Gov. George Ryan in 2000 to declare a moratorium on the death penalty, saying Illinois’ criminal justice system was broken. Capital punishment has since been abolished in Illinois.

On Tuesday, U.S. District Judge Robert Dow Jr. issued a ruling calling Simon’s allegations that he was framed “plausible” and denying requests by Northwestern, Protess and Ciolino to dismiss the lawsuit.

Dow noted that Protess and his journalism students were previously successful in overturning convictions in other murder cases in the 1990s.

“It is reasonable to think that defendants, who had garnered tremendous prestige (e.g., book deals, a made-for-TV movie, sizable donations, etc.) from their involvement in two high-profile wrongful conviction cases, would be eager to continue their streak of successes,” Dow wrote.

“It is also reasonable to think that defendants, who allegedly used ethically-questionable tactics in their previous investigation, would continue down that path in securing their third in a string of successful exonerations.”

“And finally, it is plausible that the state’s attorney prosecuted plaintiff because of the falsified evidence, which consisted of a recanted eyewitness account, a new eyewitness account and a corroborated confession.”

Ciolino and a Northwestern student traveled to Milwaukee to interview Simon in 1999. Ciolino later acknowledged to a grand jury that he obtained Simon’s videotaped confession through deception when he showed him a video of an actor who claimed he knew Simon committed the murders.

On the confession tape, Simon said he committed the killings in self-defense. He said he thought he saw Hillard pull a gun on him at the pool.

In 1999, then-Cook County State’s Attorney Dick Devine convened a grand jury that considered Simon’s confession — as well as testimony from four witnesses who said they saw Porter at the scene of the killings and one witness who said he saw Porter actually shoot the victims.

That grand jury did not indict Simon.

But a second grand jury was then empaneled. None of the witnesses who had implicated Porter were presented to the second grand jury, which indicted Simon, according to the lawsuit.

Simon then allegedly pleaded guilty on the advice of his attorney, Jack Rimland, who warned that he could face the death penalty if he went to trial, according to the lawsuit.

Simon was sentenced to 52 years in prison. Porter was released from Death Row and went free.

Simon later filed a post-conviction appeal claiming he gave a false confession in exchange for promises of book and movie deals.

His lawsuit claims that Rimland was in on the alleged conspiracy. He was a friend and associate of Ciolino, the private detective who obtained the confession from Simon.

Rimland was named as a defendant in the lawsuit, but Dow dismissed him from the case, saying the claims against him are “time-barred.”

But Dow refused to dismiss malicious prosecution and conspiracy allegations against Protess and Ciolino. The judge also ruled that the lawsuit will continue against Northwestern on allegations that the university was “vicariously” liable for framing Simon.

Northwestern was on notice about possible ethical behavior by Protess, according to the lawsuit filed by Simon’s attorneys, Terry Ekl and James Sotos. A dean of the journalism school had raised concerns about Protess’ investigative methods before he and Ciolino began investigating the Porter case, the lawsuit said.

In a recent court filing, Protess said Simon hasn’t proven that Protess knew of Simon’s alleged innocence. He also said the state’s attorney conducted an independent investigation and decided to prosecute Simon; and Simon pleaded guilty so he can’t blame others for his imprisonment.

In 2013, Protess told the Sun-Times that he wasn’t present during Simon’s confession, but found the videotaped statement to be convincing evidence of his guilt. Simon didn’t seem under duress and acted out how he shot the victims, Protess said, pointing out that Simon even turned to the mother and children of one of the victims and gave a tearful apology when he pleaded guilty in court.