Simon v. Nw. Univ.

• Citation: 183 F.Supp.3d 908
• Decision Date: 22 April 2016
• Docket Number: Case No. 15-cv-1433
• Parties: Alstory Simon, Plaintiff, v. Northwestern University, David Protess, Paul J. Ciolino, and Jack P. Rimland, Defendants.
• Court: U.S. District Court — Northern District of Illinois

183 F.Supp.3d 908

Alstory Simon, Plaintiff,

v.Northwestern University, David Protess, Paul J. Ciolino, and Jack P. Rimland, Defendants.

Case No. 15-cv-1433

United States District Court, N.D. Illinois, Eastern Division.

Signed April 22, 2016

James Gus Sotos, Jeffrey Neil Given, Jordan Ann Lejcar, Laura Marie Ranum, The Sotos Law Firm, P.C., Itasca, IL, Terry A. Ekl, Patrick L. Provenzale, Tracy L. Stanker, Ekl, Williams & Provenzale LLC, Lisle, IL, Andrew M. Hale, Avi T. Kamionski, Shneur Z. Nathan, Hale Law LLC, Chicago, IL, for Plaintiff.

Terri Lynn Mascherin, Gabriel A. Fuentes, Jory M. Hoffman, Jenner & Block LLP, Matthew J. Piers, Chirag Gopal Badlani, Hughes Socol Piers Resnick & Dym, Ltd., Chicago, IL, Jennifer A. Bonjean, Bonjean Law Group, PLLC, St. Brooklyn, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge

Plaintiff Alstory Simon alleges that Defendants' unethical journalistic and investigative practices led to his wrongful conviction and 15-year incarceration for a double murder that he did not commit. Plaintiff alleges that Defendants knowingly falsified evidence and disseminated that evidence to the prosecuting authorities to frame Plaintiff for the murders.

Before the Court are motions to dismiss filed by each Defendant [34, 42, 43, 46] as well as Defendants' joint motion to stay discovery [48] pending resolution of those motions to dismiss. For the reasons set forth below, Defendants' motions to dismiss [34, 42, 43, 46] are granted in part and denied in part. Defendants' motion to stay [48] is denied as moot. This case is set for further status on 4/__/2016 at 9:30 a.m. to discuss scheduling and case management.

I. Background¹

A. David Protess, Paul Ciolino, and the Medill School of Journalism

Defendant David Protess joined the faculty of Northwestern University's Medill School of Journalism in 1981. In 1990, Protess teamed up with investigative journalist Rob Warden (who specialized in wrongful conviction cases) to investigate the case of David Dowaliby, who had been convicted of murdering his seven-year-old adopted daughter. Protess and Warden, along with several of Protess's journalism students, undertook an investigation that ultimately contributed in large part to Dowaliby's exoneration.

Protess's success on the Dowaliby case was highly publicized. In July 1990, the Chicago Tribune published a two-part series written by Protess about the investigation and Northwestern's role in Dowaliby's exoneration. Protess and Warden wrote a book about their investigation called "Gone in the Night," which inspired a two-part, made-for-TV movie that aired on CBS in 1996. Protess's accomplishments also reflected positively on Northwestern's Medill School of Journalism, and because of this rise in prestige and popularity, Northwestern encouraged Protess to continue focusing his investigative journalism class on wrongful conviction cases.

Protess's next success came in 1996, when he and his journalism students began investigating the case known as the "Ford Heights Four," which involved four men convicted for a double murder that occurred in 1978. To assist in the investigation, Northwestern hired a private investigator, Defendant Paul Ciolino. By July 1996, with the help of the Northwestern investigative team, the Ford Heights Four were exonerated. By August 1996, Protess had signed another book deal ("A Promise of Justice"), which was published in 1998.

Plaintiff alleges that Protess and Ciolino used ethically-questionable investigatory tactics in working on the Ford Heights Four case, some of which Protess wrote about in "A Promise of Justice." For example, Protess allegedly wrote a letter to a key eyewitness on Medill School of Journalism letterhead advising the witness that his monetary rights to his story were contingent on his story aligning with Northwestern's view of the case. In another instance, Ciolino posed as Hollywood producer Jerry Bruckheimer in a witness interview to add gravitas to Protess's promise to the witness that he could reap huge financial rewards for his story. Defendants also used female students to sexually flirt with witnesses in order to manipulate their testimony, and Protess allegedly told one eyewitness "that he could have sex with either of two Northwestern Medill students if he would change his testimony." [1, ¶ 32–35.]

Plaintiff claims that Defendant Northwestern became aware of Protess and Ciolino's unethical behavior as early as 1997, but, motivated by the "prestige, recognition and monetary benefits" that came from Protess's work, continued to endorse his program anyway. More specifically, in 1997, the Dean of the Medill School of Journalism (Michael Janeway) expressed concerns to Northwestern over the lack of oversight and supervision of Protess and Ciolino and his desire to cancel Protess's investigative journalism classes. In response, Northwestern replaced Dean Janeway with Ken Bode, "a Dean that would support and/or ignore Protess'[s] and Ciolino's unethical, deceitful and/or illegal conduct." [1, ¶ 42.] Despite the publicity surrounding these questionable investigative tactics as presented in the "massive publicity surrounding the Ford Heights Four case, and the publishing of 'A Promise of Justice,"' Dean Bode continued to support Protess's investigative journalism program. [1, ¶ 39.] And in August 1998, on the heels of the publication of Protess's second book, the Robert R. McCormick Tribune Foundation announced a $20,000,000 grant to the Medill School of Journalism.

B. The Anthony Porter Case

Riding high on the acclaim from two successful exoneration projects (coupled with two book publications, vast media exposure, and a sizeable grant), Defendants set out to continue their streak of journalistic accomplishment. In late 1998, Protess, Ciolino, and several Medill journalism students began investigating the 1983 double-murder conviction of Anthony Porter. On the morning of August 15, 1982, Jerry Hillard and Marilyn Green were shot and killed in the bleachers of the Washington Park swimming pool on Chicago's southeast side. Upon arriving at the scene of the crime, the Chicago police identified two witnesses, Henry Williams and William Taylor. Williams told police that, as he was exiting the Washington Park swimming pool that morning, Arnold Porter tried to rob him at gunpoint. After that exchange ended, Williams watched Porter walk into the bleachers where Hillard and Green were sitting, at which point Williams heard several gunshots. The other witness, Taylor, was in the swimming pool at the time of the murders. He did not identify the shooter initially, but later told police that he saw Anthony Porter shoot the two victims. Later that day, a Cook County State's Attorney and a Chicago Police Officer located two more witnesses, one of whom (Kenneth Edwards) said that he saw Anthony Porter shoot both victims in the bleachers.

Police apprehended Porter several days later and charged him with the murders of Hillard and Green. At Porter's trial, Williams and Taylor testified consistently with what they told the police on the day of the shootings. Porter did not testify, but his friend Kenneth Doyle falsely testified that he and Porter were somewhere else at the time of the shootings. A jury found Porter guilty of the murders, and on September 21, 1983, Porter was sentenced to death.

Shifting back to 1998, with Porter's execution date on the horizon, Defendants Protess and Ciolino and their team of journalism students began an expeditious investigation Porter's conviction. The team first focused on Porter's mental competence to be executed "but, shortly thereafter, Defendants Protess and Ciolino formulated a plan to fabricate evidence that would exonerate Porter for the murders." [1, ¶ 80.] Defendants' primary tactic quickly materialized: they would develop an alternate suspect, and that person was Plaintiff, Alstory Simon. As Plaintiff puts it, "[al]though [Plaintiff's] name was never mentioned by a single person to police or at Porter's criminal trial, Defendant Protess found references to [Plaintiff] in old affidavits submitted during Porter's original post-conviction proceedings and promptly announced, in early November 1998, before any investigation was undertaken or any evidence developed, that he was almost certain [Plaintiff] committed the murders." [1, ¶ 81.]

Over the next seven weeks, "Defendants Protess and Ciolino, with the participation of Protess'[s] students, knowingly manufactured and fabricated four pieces of false evidence which they contended dismantled the case against Porter and proved that Simon committed the murders." [1, ¶ 84.] First, Defendants coerced eyewitness William Taylor into signing two affidavits (one prepared by Ciolino, the other by Protess) essentially recanting his prior incriminating statements against Porter. Defendants sent Taylor's statements to CBS television, pitching Taylor as the only eyewitness to the crime, and claiming that in light of this change in testimony, there was now no evidence tying Porter to the murders. But according to Plaintiff, Defendants "never made any effort to interview any of several other witnesses who had identified Porter as either the shooter or being present at the murder location." [1, ¶ 85.]

The second and third pieces of false evidence were coerced statements from Illinois inmate Walter Jackson and his aunt (and Plaintiff's estranged wife), Inez Jackson Simon. Protess contacted Jackson first, promising him money and freedom to get him to sign a false affidavit claiming that Plaintiff had confessed his guilt to him 17 years earlier. Protess then had Jackson call his aunt, Inez Jackson Simon, to convince her to provide a false statement of her own regarding the murders. Defendants Protess and Ciolino, along with two Medill students, visited Inez Jackson Simon in Milwaukee, Wisconsin, where they "coaxed and induced" her into signing a witness statement by...