Saying the cases are only “technically related" and would bog each other down, a Chicago federal judge has tossed a $25 million countersuit for defamation brought against the Cook County State’s Attorney’s Office, a documentary filmmaker and other defendants, by a private investigator, who is one of the defendants facing a $40 million malicious prosecution lawsuit from a man, cleared of double murder charges, who claims the P.I. and a Northwestern University journalism professor coerced him into confessing to the killings to boost their own prestige and careers.
On Jan. 3, U.S. District Judge Robert M. Dow Jr. granted a request from Alstory Simon to dismiss the counterclaim, filed by private investigator Paul Ciolino, who claims he was falsely accused in a documentary film and other publications of “conspiring to frame Simon by coercing a false confession from him.”
Dow said he would not allow Ciolino’s lawsuit to proceed because it would “predominate” over the $40 million lawsuit Simon had brought in 2015 against Northwestern University, Ciolino and Northwestern professor David Protess, for allegedly falsifying evidence that led to Simon’s imprisonment.
“Determination of the validity of Simon’s claim will involve ascertaining what happened during the investigation in 1998 and 1999, what Protess and Ciolino knew during the investigation, whether the Protess and Ciolino fabricated evidence and acted with malice, and whether they commenced the proceedings against Simon without probable cause,” Dow wrote. “In contrast, discovery would be vastly different and potentially much broader for Ciolino’s counterclaims alleging defamation, false light, intentional infliction of emotional distress, and civil conspiracy, as a different set of underlying facts would have to be elucidated.
“The focus would be on what was said in the documentary and the book in 2015 and the many Counter-Defendants who are not parties to Simon’s original claim against Ciolino.”
Simon and Ciolino became entwined in the late 1990s when Simon allegedly confessed to the 1982 slayings of Jerry Hillard and Marilyn Green on Chicago’s southeast side.
In 1983, another man, Anthony Porter, had been convicted of the killings. But in 1998, Protess and Ciolino, along with Protess’ students at Northwestern University’s Medill School of Journalism, had moved to clear Porter’s name.
Protess and Ciolino had achieved fame in prior years by working to clear the names of others purportedly falsely convicted in other high-profile murder cases, including the so-called “Ford Heights Four,” four men wrongly prosecuted in a different double killing, and David Dowaliby, a father accused of killing his own child.
In his lawsuit, Simon alleged Protess and Ciolino fabricated “four pieces of false evidence,” including an allegedly coerced confession from Simon, which “dismantled the case against Porter and proved that Simon committed the murder.”
Simon has specifically alleged Ciolino had posed as a police officer and had illegally detained him, using “threats, fabricated evidence, false statements, promises, money and other illegal tactics” to wring a confession out of him that he had “shot Hillard in self-defense and Green by accident.”
Simon was convicted in 1998, but was released from prison in 2014, when former Cook County State’s Attorney Anita Alvarez abandoned all charges against Simon after her office reinvestigated the Hillard/Green murders, prompted by two witnesses’ decision to recant their prior testimony against Simon.
Simon then filed suit in February 2015.
After Dow refused to toss out Simon’s lawsuit, Ciolino responded with his counterclaim against former Cook County State’s Attorney Anita Alvarez, documentary filmmaker Andrew Hale and others, saying they conspired to smear his name in Hale’s documentary film “Murder in the Park” and in a book, titled “Justice Perverted: How The Innocence Project at Northwestern University’s Medill School of Journalism Sent an Innocent Man to Prison.”
Ciolino asserted “the documentary … advances an outrageous and demonstrably false claim that with the blessing of Northwestern University, David Protess and Paul Ciolino framed [Simon] so that death row inmate Anthony Porter could become a ‘poster boy’ for the bid to end execution in Illinois.”
Ciolino asserted the related book was also ““chock full of false and defamatory statements.”
He asked the court to award him $25 million, plus punitive damages.
Simon’s legal team responded by asking the judge to dismiss Ciolino’s counterclaim, arguing its basis – that Ciolino had been defamed by people other than Simon – was too dissimilar from Simon’s lawsuit to be allowed to proceed at the same time in the same court.
Ciolino argued the two cases were “inextricably linked,” as Ciolino’s lawsuit springs directly from the same occurrences that birthed Simon’s malicious prosecution action.
But Dow sided with Simon, agreeing that the cases did not share the same foundation, as required by Federal Rule of Civil Procedure 13(a).
“Although there obviously is some connection between Simon’s claim of malicious prosecution and Ciolino’s counterclaim alleging that Simon and the other Counter-Defendants defamed him by discussing Ciolino’s alleged conduct during the investigation, any logical relationship between the claims is attenuated at best and not sound enough for purposes of Rule 13(a),” Dow wrote.
He indicated Ciolino’s claims were better suited for Illinois state courts, as they center on defamation claims under Illinois state law.
“Here, the Court would decline to exercise supplemental jurisdiction because the issues in the counterclaim would predominate over Simon’s malicious prosecution claim. Ciolino’s counterclaim involves different facts and many more Counter-Defendants and actors than Simon’s malicious prosecution counterclaim, and the two claims concern different substantive areas of law,” Dow wrote.
Simon is represented in the action by attorneys with the Sotos Law Firm, of Itasca; Ekl, Williams & Provanzale LLC, of Lisle; and Hale Law LLC, of Chicago.
Ciolino is represented by the Bonjean Law Group PLLC, of Brooklyn, N.Y.