Cook County Record

Sunday, March 29, 2020

Appeals panel: Private investigator's $25M defamation suit OK vs filmmakers, writers, others over Alstory Simon case


By Scott Holland | Jan 14, 2020

Northwestern arch

CHICAGO — A state appeals panel will allow a private investigator, who had been associated with the Northwestern University Medill School of Journalism's Innocence Project, to continue pressing the bulk of his defamation lawsuit against a group of defendants who published documentaries, blog posts and books which cast aspersions on the effort to clear the murder conviction of one man by allegedly coercing a confession from another allegedly innocent man.

Alstory Simon was cleared of double homicide after investigator Paul Ciolino and Northwestern University journalism professor David Protess were accused of framing him to get another man off death row. In January 2018 Ciolino sued former Cook County State’s Attorney Anita Alvarez and several others who published material questioning Ciolino’s conduct and motives.

Simon — who pursued a wrongful conviction claim in Chicago federal court against Ciolino — also is a defendant in the $25 million complaint. In 1983, Anthony Porter was convicted of the 1982 slayings of Jerry Hillard and Marilyn Green on Chicago’s southeast side. In 1998, Protess and Ciolino, along with Protess’ Medill School of Journalism students, moved to clear Porter’s name by getting Simon to confess — a confession Simon asserts was coerced.

Paul Ciolino

Cook County Circuit Court Judge Christopher Lawler granted the defendants’ motion to dismiss all six counts of Ciolino’s complaint, finding his allegations to be barred by statutory limitations. Illinois First District Appellate Court Justice John Griffin wrote the opinion on Ciolino’s appeal, which was issued Jan. 13. Justices Daniel Pierce and Carl Walker concurred.

The panel said the key dates are linked to the works that informed the defamation allegations. William Crawford completed a document titled “Chimera” in the spring of 2011, establishing his narrative that NU’s Innocence Project framed Simon. A documentary, “A Murder in the Park,” by filmmaker Andrew Hale and Whole Truth Films, premiered in New York on Nov. 17, 2014. Relevant posts from Martin Prieb’s blog, “Crooked City: The Blog About the Wrongful Conviction Movement,” went online from June 2015 through April 2016. On June 9, 2015, Crawford published a book titled “Justice Perverted: How the Innocence Project of Northwestern University’s Medill School of Journalism Sent an Innocent Man to Prison.”

According to the panel, Crawford’s book used several verbatim “Chimera” passages while also suggesting “the Innocence Project had a more Machiavellian motive for securing Porter’s release: to put an end to the death penalty in Illinois.”

The panel said the operative filing date for Ciolino’s claims is April 27, 2016, when he filed a counterclaim to Simon’s February 2015 wrongful conviction lawsuit. Though a federal judge dismissed the counterclaim in January 2017, his state lawsuit “is, in substance, a refiling of the counterclaim,” Griffin wrote. The question isn’t whether the state lawsuit was timely — it was — but if the counterclaim was filed on time.

Crawford argued the clock should’ve started with the publication of “Chimera,” but the panel said the fact he shopped “Chimera” to media outlets isn’t enough to establish a legal publishing date.

“There is no evidence that anyone at those news outlets even read ‘Chimera,’ ” Griffin wrote, “let alone that they read the specific statements that Ciolino now claims are defamatory.”

Ciolino insisted the relevant date for documentary was its Chicago premiere on July 25, 2015, less than a year before his April 2016 filing. The panel agreed, saying a New York film festival screening and attendant coverage didn’t constitute a mass media publication that Ciolino did or should’ve known existed, especially since he lacked an avenue to encounter the statements in the film he eventually found defamatory.

However, the panel did agree to dismiss Alvarez from the complaint. Although Ciolino’s claim against her arose from her appearance in the documentary, those statements “were simply clips from a news conference she held on Oct. 30, 2014” to announce she was abandoning charges against Simon, an event that generated significant local and national attention and to which Ciolino responded with a public statement the same day.

Prieb’s argument for dismissal didn’t invoke timeliness but, as did the other defendants in advancing alternative arguments, said his blog posts were opinion statements shielded from defamation laws or covered by fair reporting laws. The panel said it wouldn’t review legal questions lower courts didn’t consider or analyze as they are better suited for a trial court with discovery proceedings.

The panel also said it wouldn’t consider new arguments concerning Ciolino’s claim of intentional infliction of emotional distress to survive and said Lawler should not have dismissed that claim as time barred.

According to Cook County court records, Ciolino has been represented in the action by attorney Jennifer Bonjean, of Chicago.

Defendants have been represented by the firms of Mandell Menkes; Deutsch Levy & Engel; Rock Fusco & Connelly; Tribler Orpett & Meyer; Gottreich Grace Thompson; SmithAmundsen; Borkan & Scahill; and Cameli & Hoag, all of Chicago. 

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Organizations in this Story

Mandell MenkesIllinois First District Appellate CourtBorkan & ScahillNorthwestern University.Medill School of JournalismCircuit Court of Cook CountyCameli & HoagRock, Fusco and ConnellyTribler, Orpett & MeyerGottreich Grace & ThompsonSmithAmundsen