Secret city attorney memo called death row decision ‘political’
BY FRANK MAIN Staff Reporter April 12, 2014 9:26AM
Updated: May 14, 2014 6:26AM
Fight or settle?
That was the question in 2001 when the city was facing a multimillion-dollar lawsuit filed by high-powered attorneys representing former Death Row inmate Anthony Porter.
In the lawsuit, Porter accused the city of putting him on death row for more than 16 years for a double murder in 1982 he didn’t commit.
The stakes were high for the city, with a potentially huge payday for Porter if the city went to trial and lost.
But after reviewing the evidence in the case, four city attorneys sent a memo to their boss, then-Corporation Counsel Mara Georges, with an answer:
At the heart of the memo, obtained by the Chicago Sun-Times, is an explosive allegation that’s never been made public.
The memo alleges that the decision by Cook County prosecutors to drop the murder case against Porter and charge Alstory Simon — who made a videotaped confession to the murders — was a “political” one.
“A political decision was made that this case should be put to rest because it caused too much publicity against the imposition of the Death Penalty, caused great doubt about the validity of death penalty punishment for mentally challenged individuals and incited a significant amount of negative press concerning Death Row reversals,” the memo said.
The four-page memo outlined the key evidence in the case against Simon that led to Porter’s release, including Simon’s confession. The city’s attorneys noted Simon’s wife gave a statement implicating him in the 1982 killings. She later recanted that statement on her death bed.
The memo also said there was still compelling evidence against Porter, including statements from seven witnesses, one of whom later died. One witness, Kenneth Edwards, told a grand jury in 1999 — after Porter was freed — that he saw Porter pull the trigger and kill Jerry Hillard and Marilyn Green in the bleachers near a pool in Washington Park on the South Side.
Another man said Porter robbed him of $2 at gunpoint on the pool deck just before the killings on that warm day, Aug. 15, 1982.
Still, the state’s attorney’s office was comfortable releasing Porter, despite the evidence against him, because he served some prison time, the memo said.
“The State’s Attorney’s Office felt that some justice was served because he [Porter] served 15 [sic] years behind bars and any conviction for the armed robbery would be considered time-served,” the memo said.
The memo from the attorneys doesn’t make clear what they based their conclusions on regarding the political nature of the prosecution. In an interview, attorney Kimberly E. Brown, who was on the team, said she couldn’t recall.
But Brown, who’s in private practice now, said: “All the evidence lined up against Anthony Porter,” adding that the circumstances leading to Porter’s release and Simon’s prosecution “seemed very, very fishy.”
In 2005, Porter’s lawsuit went to trial at the Cook County Circuit Court, and a jury found in favor of the city. Porter didn’t get a dime, a decision that stunned many observers.
After the verdict was announced, the city’s trial attorney, Walter Jones, pointed to Porter in the courtroom and said: “The killer has been sitting in that room there all day.”
One of Simon’s current attorneys, Terry Ekl, said the 2001 memo supports Simon’s claim that he was railroaded.
At the urging of Ekl and attorney James Sotos, the Cook County state’s attorney’s office last year opened a new review of Simon’s conviction. Earlier this month, the office’s chief of criminal prosecutions interviewed Simon.
Simon, who is serving a 37-year prison sentence, is eligible for parole in 2017.
The Sun-Times reported last week that Thomas Epach — Cook County’s chief of criminal prosecutions in 1999 — has raised questions about Porter’s release and Simon’s prosecution.
Epach last fall gave a sworn affidavit to Ekl saying then-Cook County State’s Attorney Richard Devine didn’t heed his advice to investigate the case more thoroughly before charging Simon. The 1999 decision followed a local television station’s airing of Simon’s videotaped confession.
“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,” wrote Epach, who is now retired.
Devine told the Sun-Times last week that he didn’t recall Epach expressing doubts about the decision to charge Simon in 1999. There was no “substantive claim” that Simon was innocent at the time, he said.
“I can’t go into the mind of a person who pleads guilty,” Devine added.
But Ekl accused the prosecutors and Simon’s defense attorney at the time, Jack Rimland, of failing Simon.
During Simon’s guilty plea before a judge, neither side mentioned eyewitness evidence that was favorable to Simon.
Then-Assistant State’s Attorney Thomas Gainer Jr. presided over a grand jury in 1999 that was convened to reinvestigate the murders and the circumstances surrounding Simon’s confession.
The grand jury obtained fresh statements from three witnesses who put Porter in the bleachers at the time of the shooting and from Edwards, who said Porter pulled the trigger.
The grand jury also heard from Paul Ciolino, a private investigator who was working with Northwestern University professor David Protess and his students to free Porter from death row.
Ciolino acknowledged to the grand jury that he obtained Simon’s videotaped confession through deception, by showing 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 after he thought he saw one of the victims, Jerry Hillard, pull a gun on him at the pool.
On Sept. 7, 1999, Simon appeared before Judge Thomas Fitzgerald to enter his guilty plea. The judge asked about the evidence that prosecutors would have presented if the case had gone to trial.
Gainer, the prosecutor, said he would have presented testimony about Simon’s confession and his wife’s statement implicating him.
He also said he would have presented four witnesses who saw people in the bleachers and heard gunshots.
But Gainer did not tell the judge that the witnesses were favorable to Simon and implicated Porter.
“There was a great deal of media attention brought to bear upon the statement by Alstory Simon to private investigator Paul Ciolino,” Gainer told the judge, according to a transcript. “It was heralded as a confession to the murder of Marilyn Green and Jerry Hillard. We have reviewed that statement at great length. And we think that based on that statement and all of the other evidence, that this is an appropriate sentence.”
Jack Rimland, the defense attorney for Simon, didn’t tell the judge about evidence that pointed to Porter, either.
Asked about those omissions, Devine told the Sun-Times that witness testimony against Porter was also in the record of Porter’s 1983 trial.
“Judge Fitzgerald, I am certain, was aware of that background,” Devine said.
In court, the judge didn’t mention the Porter evidence before accepting Simon’s guilty plea.
Ekl, meanwhile, said Rimland’s representation of Simon posed a potential conflict of interest. Simon got his defense attorney, Rimland, through the man who took his confession. Rimland and Ciolino — the private investigator who worked to free Porter — shared the same office. Ciolino told the grand jury he recommended Rimland to Simon.
Rimland declined to comment last week.
But he has previously said that he obtained a good deal for Simon — 37 years — as opposed to the death sentence that Porter got. He has also responded to questions about his potential conflict of interest, telling reporters after he was hired to represent Simon in 1999: “I will look out for his [Simon’s] best interests.”
Gainer, who is now a Cook County judge, declined to comment. Epach didn’t return a call seeking comment.
Porter’s supporters have said the latest attempt to free Simon serves only to smear Porter, an innocent man.
They also note that his release was a driving force for former Gov. George Ryan to declare a moratorium on the death penalty in Illinois.
The Cook County state’s attorney’s office hasn’t said how long the review of Simon’s conviction will take.