CHICAGO – Former Northwestern University journalism professor David Protess has pleaded poverty in Chicago federal court as he defends a malicious prosecution suit from Alstory Simon, a man cleared of murder charges who blames Protess for leading a conspiracy, involving private investigators and Northwestern journalism students, to frame him for the murder of two men.
Incarcerated for 15 years, Simon is seeking $40 million in damages from Northwestern, Protess and investigator Paul Ciolino.
Protess’ lawyer, Matthew Piers of Chicago, described Protess' financial situation at a hearing before Magistrate Judge David Weisman on Oct. 2.
Weisman, who manages discovery for District Judge Robert Dow, said earlier this year that he couldn’t imagine a more important civil case.
In debate over application of a discovery rule, Piers told Weisman, “The final burden is on my client who’s going broke. He’s borrowing money to pay for his defense."
Weisman offered Piers a sideways compliment, pointing out that Protess retained experienced counsel from an excellent firm.
“He’s buying a Cadillac car, but not paying for a Cadillac,” Weisman said.
However, Weisman said that if Protess pleaded poverty, he couldn’t have it both ways.
Piers responded that Protess hasn’t paid near the standard rate. He said an immense amount of time hasn’t been charged.
“This man has been publicly humiliated and his reputation has been damaged,” Piers said. “He deserves effective counsel.”
He said that at his firm’s administrative committee, “This is not something they think I should be doing.”
Weisman shot back: “That’s not something the rule tells me I should be looking at.”
Simon pleaded guilty in 1999, to charges that he murdered Jerry Hillard and Marilyn Green in the city’s Washington Park in 1982.
His plea necessitated the release of original defendant Anthony Porter, whose execution date had nearly arrived after 17 years on death row.
Porter’s release stirred death penalty opponents including Gov. George Ryan, who vowed he would never approve an execution.
In 2001, Simon petitioned the Cook County circuit court to vacate his conviction.
His petition stated that on Feb. 5, 1999, at about 6:30 a.m., Ciolino and another investigator visited Simon at his residence.
Simon wrote that he had used drugs and alcohol that morning and was intoxicated.
“Petitioner suffered from a drug addiction problem,” Simon wrote in his petition 16 years ago.
He wrote that the visitors represented themselves as police investigators.
“They were armed with weapons and guarded petitioner as if he was being placed under arrest,” he wrote.
According to Simon, they told him his former girlfriend Inez Jackson signed a sworn statement and others gave information that he shot Hillard and Green.
He wrote that he was required to watch video of a black male stating he saw Simon shooting the victims, and Simon said he was required to watch a television program in which statements were made that he committed the murders. They refused to leave when he asked them to leave, Simon alleged.
Simon wrote that they repeatedly told him to admit the murders or his life would be in danger and an accident could happen to him.
If he cooperated, “publicity surrounding the Anthony Porter case will allow him to get millions of dollars from the movie and book deals that CBS and other networks would produce,” Simon wrote in his petition.
Simon said they admitted they weren’t police and told him they worked for Protess at Northwestern. They allegedly said Protess would get Simon a lawyer and make sure he wouldn’t spend more than a couple years in prison.
“They indicated that they were not interested in seeing him do any time, that they just wanted to get Anthony Porter off of death row,” Simon alleged.
Ciolino allegedly made a telephone call and said attorney Jack Rimland, a friend of Protess, would be his lawyer.
After Simon’s sentencing, he allegedly discovered Jackson was given food, cash and other amenities to sign an untrue affidavit, allegedly prepared by Ciolino and Protess.
Simon alleged ineffective counsel, accusing Rimland of hiding a substantial body of evidence that plainly proved his innocence.
He wrote that Rimland didn’t provide him with grand jury transcripts until after his sentencing, and didn’t challenge the confession or request a fitness hearing.
He wrote that if Rimland had showed him all the evidence, he would have insisted on proceeding to trial.
A judge denied Simon’s petition, but his case was later taken up by law partners James Sotos and Terry Ekl in Itasca.
They started pushing to free Simon “pro bono," meaning "for the public good."
In 2005, Jackson recanted her affidavit, saying she had lied to get back at Simon in a long feud.
She stated she signed for a promise to get her son and nephew out of jail, and for a promise to share in the proceeds of a civil suit Porter would file.
Her nephew Walter Jackson, who had signed an affidavit swearing that Simon told him he killed Green and Hillard, recanted his affidavit in 2006.
Walter Jackson said he signed it because Porter saved him from being killed in prison.
While Simon’s supporters undermined those affidavits, they collected two affidavits from new witnesses to the old crime, and another from a pastor.
The Rev. Robert Braun said Simon told him he intended to plead guilty because Ciolino offered a lot of money from movie and book deals.
Braun swore that Simon said Rimland told him it didn’t matter if he was innocent. He said he called Rimland and Rimland said Simon’s innocence didn’t matter because he would get convicted at trial.
In 2009, Cook County prosecutors on one of Protess’ other cases served a subpoena on Northwestern for documents, including student reports.
Attorneys from the Sidley Austin firm who were representing Northwestern objected to production of student reports on the basis of reporter’s privilege. In 2010, Sidley Austin informed a judge that it made inaccurate statements about the documents and withdrew its representation of Protess.
Northwestern then hired Jenner and Block, not to represent Protess but to investigate him.
In 2011, journalism dean John Lavine placed Protess on leave. Northwestern didn’t announce the action until Protess made public statements.
Northwestern spokesman Alan Cubbage then issued a statement that Jenner and Block uncovered numerous examples of false and misleading statements.
Cubbage wrote that Northwestern needed to be certain which materials could be protected and which had to be turned over because they had been published or shared with a third party.
He wrote that university lawyers repeatedly made the distinction clear to Protess and the university claimed privilege based on information from Protess.
He wrote that lawyers for the defendant in the other case, Anthony McKinney, produced documents in court that Protess said he never shared outside the school.
“Protess authorized the release of all student reports to Mr. McKinney’s lawyers despite his repeated claims to the contrary,” Cubbage wrote.
“He caused the university to take on what turned out to be an unsupportable case and unwittingly misrepresent the situation both to the court and to the state.”
In 2013, Sotos and Ekl asked state’s attorney Alvarez to reopen the Hillard-Green murder case.
“It is simply impossible to objectively view the evidence in this case and be left with a firm belief that Alstory Simon shot Jerry Hillard and Marilyn Green in August 1982,” they wrote.
They said Rimland lied to Simon about the strength of the case and withheld grand jury evidence of Porter’s guilt, and when Simon wavered on pleading guilty, Rimland worked with Northwestern to falsely implicate him in another crime.
They wrote that, at the same time, Northwestern bestowed awards on Protess and Ciolino for freeing Porter.
They wrote that a previous state’s attorney acquiesced in a coordinated effort involving Northwestern and a local media outlet to press for a rush to judgment.
They further said two people identified Porter as the shooter, four placed him in the park’s bleachers, and a police officer said he saw him in the park.
“None of those seven individuals has said a word about Alstory Simon being present,” they wrote.
Alvarez conducted an investigation, and recommended release in 2014.
Upon gaining freedom, Simon sued Northwestern, Protess, and Ciolino.
The complaint alleges Protess used students as pawns.
Ekl and Sotos wrote that Northwestern encouraged Protess to garner recognition and enhance the reputation of the journalism school.
They said Protess sent two female students into Simon’s house, and by sending them inside, Protess showed he knew Simon hadn’t committed a violent crime.
Rimland was also named as a member of the conspiracy.
Defendants moved to dismiss, but Judge Dow ruled Simon could proceed against Protess and Ciolino on malicious prosecution and conspiracy, and against Northwestern on vicarious liability.
He dismissed Rimland, finding a statute of limitations had run out.
On Jan. 23, 2017, at a hearing on discovery, Weisman dug to the depth of the dispute.
According to a court transcript of that hearing, he asked Northwestern counsel Terri Mascherin, of Jenner and Block, how many students were in the class when Protess investigated the Simon case.
She said around 15 to 20 each quarter, spanning two quarters.
“This is a case that at heart attacks or questions the legitimacy of the criminal justice system as applied by the state’s attorney’s office, and the legitimacy of the criminal justice system as questioned by Northwestern University and Mr. Protess, and the legitimacy of Northwestern and Mr. Protess questioning the criminal justice system in the end result,” Weisman said.
“We have, to me, a very important system, the criminal justice system, questioned to an exponential factor of three, so I cannot imagine a more important civil case than the one that is before me.”
The judge asked Sotos where the case fell on a scale of one to 10.
“Judge, that is an easy question for me,” Sotos said. “This case is a 10.”
“I have never been involved in a case that I view to be more important than this one for all the reasons the court expressed.”
Weisman asked Ciolino’s lawyer, Jennifer Bonjean, where she saw it.
“I think the issues that you opined on are absolutely important,” Bonjean said. “But how the Cook County state’s attorneys handled this in exonerating Mr. Simon is equally important.”
She said she preferred not to put a number on it, and Weisman said that was fine.
For Protess, Piers said: “The allegations potentially that have been made against my client potentially destroy him financially and his reputation.
“The allegations to which Mr. Simon pled guilty are very, very serious crimes, the wanton murder of two people. The stakes here are high and the case is of great significance.”
For Northwestern, Mascherin said: “The only claim that is pending against my client is the claim based upon the doctrine of respondeat superior," which in Latin, means "letting the higher one respond" and legally can be used to force an employer to pay for the actions of an employee, for instance.
She said there was no claim anyone involved with Northwestern other than Protess did anything wrong.
She said the case threatened to impose an extraordinary cost and burden for the actions of a tenured professor, over whom the university had little direct oversight or control.
“That is called academic freedom and there will be issues coming to the fore about academic freedom as this case goes on,” she said.
She said Northwestern was viewed as a deep pocketed target and she had grave concern over the burden and reasonableness of discovery.
Weisman said that “everyone agrees there is a lot at stake from a financial standpoint” in wrongful conviction cases where the accused spends significant time in prison.
Mascherin said she wasn’t aware of an award as large as what Simon sought, “particularly in a circumstance where the plaintiff pleaded guilty.”
Weisman asked her if the amount in controversy was large.
She said she thought it was pie in the sky, “even assuming plaintiff can recover.”
Piers said: “I don’t see how it is possible for plaintiff to prevail in this case and therefore I completely discount that allegation.”
Weisman said, “That is not the factor I am supposed to look at, at Rule 26, nor should it make sense.”
He brought up resources under Rule 26, and asked Piers if Protess retired.
Piers said he did, adding that Protess had very little savings.
“This case has already posed a severe enough burden that our continued involvement is at issue,” Piers said.
Weisman asked Mascherin about resources, and she said Northwestern was self insured for this claim.
Mascherin suggested it was quite possible there was a litigation funder on Simon’s side.
Weisman said, “Right now, you have no evidence of that though, correct?”
She said, “We have no evidence of that. We suspect it may be the case.”
Weisman asked if Northwestern’s endowment exceeded $10 billion, and Mascherin said it probably did.
Weisman asked Bonjean about resources, and she said Ciolino had none outside of her generosity.
Sotos said Northwestern denied that Protess acted in the scope of employment.
“I didn’t expect that,” Sotos said. “We didn’t sue Mr. Protess because we want to bankrupt him. We assumed that Northwestern would be defending him. We think they take some risk in not doing that.
“We are not particularly sensitive when Mr. Protess continues to say well, this is bankrupting me.”
Mascherin said a separation agreement between Protess and Northwestern was a matter of record.
“It should be quite evident to the plaintiff from reading the terms of that agreement that there is not responsibility on the part of the university with respect to Mr. Protess in this lawsuit,” she said.
Weisman said he presumed Protess was in the situation Piers represented.
Piers said, “We are receiving no compensation nor promises of compensation from anybody other than our client and it is running pretty scarce.”
Weisman said two people died and no one was in prison for it.
“It’s clear, on the end result, there has not been justice as we understand it,” Weisman said.
He asked Mascherin the basis of saying he wasn’t within the scope of employment.
She said, “It was not within the scope of professor Protess’s employment if taking plaintiff’s allegations as true.”
Weisman said, “I get it,” and asked if things that happened in the class were accepted as true for litigation going forward.
Piers said Ciolino obtained the confession outside of the presence of Protess by use of a pretext video, without university employees or students.
Piers and Sotos clashed over police conduct, and Weisman interrupted.
He said he wasn’t aware of case law saying private citizens could engage in the same conduct as police.
At the hearing Weisman held on Oct. 2, Ekl moved orally to postpone a deposition that defendants had set for Simon on Oct. 16.
Weisman asked Mascherin if she really thought she would be ready to go.
Mascherin said she didn’t want to put off the deposition because defendants had set depositions in the meantime.
She said if Simon is the next one deposed, that would be fine.
Weisman granted a delay.
He told Mascherin: “There was no way you’d do it until all this worked out. If the shoe was on the other foot you’d say it’s not fair.”