Protections for reporters do not permanently extend to lawyers moonlighting as filmmakers, according to a federal judge in Chicago.
Magistrate Judge M. David Wiesman’s May 5 opinion is the latest development in an ongoing legal battle involving private investigator Paul Ciolino, who claims he was falsely accused in a documentary film and other publications of coercing a double-murder confession from Alstory Simon. In 2015, Simon sued Northwestern University, Ciolino and Northwestern professor David Protess for $40 million, accusing them of falsifying evidence that led to Simon’s wrongful imprisonment.
Simon and Ciolino became entwined in the late 1990s when Simon purportedly confessed to the 1982 slayings of Jerry Hillard and Marilyn Green on Chicago’s southeast side. In 1983, another man, Anthony Porter, had been onvicted of the killings. But in 1998, Protess and Ciolino, along with Protess’ students at Northwestern University’s Medill School of Journalism, moved to clear Porter’s name.
According to Weisman’s background, Ciolino, Protess and Northwestern “manufactured false evidence and witness statements” to secure Porter’s release and allegedly frame Simon, who ultimately spent 15 years in prison until the Cook County State’s Attorney’s Office vacated the charges.
At issue before Weisman was the documentary “Murder in the Park,” a production of Whole Truth Films. One of the film’s executive producers was Andrew Hale, who also is an attorney representing Simon, though Weisman noted Hale did not represent Simon while working on the movie. The film wrapped in October 2014, after Simon’s release from prison. Hale said he joined Simon’s legal team within a week of Simon’s release.
Although Hale “still has access to the raw film footage and can view it at any time,” per Weisman, he has not provided any unused footage to Ciolino, Protess or Northwestern. The defendants attempted to access the recordings via subpoena, but the filmmakers argued they are protected under the Illinois Reporter’s Privilege Statute.
An evidentiary hearing, Weisman wrote, made it clear the scope of the filmmakers’ work qualified them as reporters. But at the time he did not consider if they had waived the privilege of statutory protection. While comfortable Hale was genuinely functioning as a reporter while working on the film, Weisman said Hale waived his reporter’s privilege by joining Simon’s legal team.
Weisman said only one Illinois case addressed the privilege issue, a 1980 Illinois Appellate Court opinion in People ex rel. Scott v. Silverstein. But in that case, the court found the reporter did not later take on a formal investigator’s role. Hale, however, “clearly acted outside of the scope of a reporter when he” joined Simon’s team, and “after serving as (Simon’s) counsel for more than two years, Hale cannot artificially divest himself of that status in order to take advantage of the reporter’s privilege.”
The issue is not whether the source material was privileged, Weisman wrote — it “would be safely ensconced” had Hale “simply continued to follow the Simon saga at a distance.” Still, he noted a reporter is unlike an attorney, doctor or clergy member, where privacy is presumed, as “a reporter gathers information from her sources for the very purpose of disclosing the information.” When Hale shared the information he collected as a reporter with the rest of Simon’s legal team, he “placed at risk all of the source information that may have been shielded by the reporter’s privilege.”
Weisman further took issue with Hale’s attempt to use the information he has disclosed through discovery as protection for releasing the full records the defendants seek.
“Hale cannot pick and choose when it is convenient for him to be a lawyer and when it is convenient for him to be a reporter,” Weisman wrote, “for the man who chases two rabbits catches neither.”
Ciolino is represented in the action by attorneys with the Bonjean Law Group, of Brooklyn, N.Y., and Jared S. Kosoglad P.C., of Chicago.
Whole Truth Films and Hale are represented by the firm of Mandell Menkes LLC, of Chicago.