A private investigator who was a central figure in a prominent wrongful murder conviction case has lost a bid to persuade a judge to unseal the video recorded deposition of Cook County’s former state’s attorney and other evidence, as he pursues a defamation lawsuit of his own against the county’s ex-chief prosecutor.
On Nov. 15, U.S. Magistrate Judge David Weisman denied the request of Paul Ciolino to lift a protective order essentially keeping under wraps the deposition of former Cook County State’s Attorney Anita Alvarez and other sworn testimony and documents produced as part of the lawsuit brought by Alstory Simon against Ciolino and others associated with Northwestern University’s Medill Justice Project, who Simon accused of framing him for a double murder.
“The Court recognizes the significance of this litigation to the public but notes again that the matter was largely resolved through a settlement agreement,” wrote Judge Weisman in the opinion. “Accordingly, any material designated as confidential did not affect the judicial disposition of the matter as the case was not resolved on the merits.”
In June, lawyers for Simon, Northwestern and NU journalism professor David Protess announced completion of a settlement agreement to resolve Simon’s years-long legal action against the university and Protess, among others. At the same time, Simon agreed to dismiss Ciolino as a defendant in the action.
The terms of the settlement deal have remained confidential, and the evidence and testimony the parties had amassed as they prepared to potentially bring the case to trial have remained sealed under a court order.
Simon had spent 15 years in prison on charges of double homicide. However, he was freed in 2014 when Alvarez told the court her office had found Protess and Ciolino had fabricated evidence and coerced Simon to confess to the 1983 murders of Jerry Hillard and Marilyn Green.
Following his release, Simon sued Northwestern, Protess and Ciolino, claiming they framed him to reverse the conviction of Anthony Porter, who faced execution. Simon’s lawyers alleged the defendants intended to make Porter a posterchild for abolishing the death penalty.
As Simon’s lawsuit continued, in January 2018, Ciolino filed suit in Cook County Circuit Court against Alvarez and others involved in Simon’s case, asserting they partnered to ruin his reputation and his career and set Simon free to settle a political score with Northwestern for exposing wrongful convictions. Ciolino sought $25 million in damages.
In late June 2018, after Simon settled with Northwestern and Protess, Ciolino filed a motion in federal court, saying public interest in the case should compel the court to agree to his request to unseal Alvarez’s deposition and other key pieces of evidence in the case.
He underpinned his request by asserting the evidence was used by the court to bring the case to its conclusion.
The request drew objections from all of the other parties involved in the case, as well as the Cook County State’s Attorney’s Office, which is now led by State’s Attorney Kim Foxx, who was elected in 2016.
Judge Weisman noted the State’s Attorney’s Office’s objection in his decision, saying it carried particular weight, as the office was not a party in the Simon proceedings.
“The need for continued protection is particularly evident with respect to the deposition of Anita Alvarez, a high-profile public figure,” the judge wrote. “As argued by the (Cook County State’s Attorney’s Office) and supported by caselaw, videotaped depositions “’are subject to a higher degree of potential abuse than transcripts.’
“The CCSAO has raised a genuine concern about the potential misuse of the deposition in the public sphere and established good cause to preserve the confidentiality designation of Alvarez’s deposition transcript and video.”
Further, the judge found fault with Ciolino’s reasoning, noting the evidence was never actually entered in court and remained only part of the “private” pre-trial discovery process, which should now serve to keep it still out of the public eye.
“One advantage of settling a matter (as opposed to more fully litigating the matter) is that public disclosure of information related to the merits of the case can be avoided,” the judge wrote. “This is an indisputable benefit of settlement, the value of which is often dependent on the public’s interest in the case. Indeed, parties often settle a case because the parties would prefer not to ‘air their dirty laundry.’
“To allow disclosure of discovery materials that were never presented to a court for substantive purposes … would eliminate one of the benefits of settlements in the first instance. While Ciolino makes a strong argument that there is a significant public interest in this matter, Ciolino does not identify any case (nor is the Court aware of any) that allows public interest to trump the general principles governing disclosure of discovery materials.”