Ciolino v. Simon

2020 IL App (1st) 190181

170 N.E.3d 992

446 Ill.Dec. 466

Paul J. CIOLINO, Plaintiff-Appellant,

v.Alstory SIMON, James DeLorto, Terry A. Ekl, James G. Sotos, Martin Preib William B. Crawford, Anita Alvarez, Andrew Hale, and Whole Truth Films, LLC, Defendants-Appellees,

No. 1-19-0181

Appellate Court of Illinois, First District, FIRST DIVISION.

March 16, 2020

Jennifer Bonjean, of Bonjean Law Group, PLLC, of Brooklyn, New York, for appellant.

Phillip J. Zisook, of Schoenberg, Finkel, Newman & Rosenberg, LLC, of Chicago, for appellee Alstory Simon.

Steven B. Borkan, Timothy P. Scahill, Graham P. Miller, and Krista E. Stalf, of Borkan & Scahill, Ltd., of Chicago, for appellee James DeLorto.

Jeremy N. Boeder and Harlene Gluck Matyas, of Tribler, Orpett & Meyer P.C., of Chicago, for appellee Terry A. Ekl.

Michael L. Resis and Ryan B. Jacobson, of SmithAmundsen, LLC, of Chicago, for appellee James G. Sotos.

James E. Thompson, Robert R. Arroyo, and Timothy M. Grace, of Gottreich Grace & Thompson, of Chicago, for appellee Martin Preib.

Perry W. Hoag and Mel Zhang, of Cameli & Hoag, P.C., of Chicago, for appellee William B. Crawford.

Eileen E. Rosen and Andrew J. Grill, of Rock, Fusco & Connelly, LLC, of Chicago, for appellee Anita Alvarez.

Steven P. Mandell, Keith E. Allen, and Brian D. Saucier, of Mandell Menkes LLC, of Chicago, for other appellees.

OPINION

PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, with opinion.

¶ 1 This case stems from one of the most famous murder cases in the recent history of our state. The background of the case is gripping. It is no real surprise then that the events surrounding the case have spurred a movie, a book, and other media attention. But that media attention is the reason the parties are before the court today.

¶ 2 Plaintiff Paul Ciolino is suing several defendants for defamation and other causes of action for the statements they made about his alleged involvement in framing a supposedly innocent man for murder. The allegedly defamatory statements attributed to defendants are found in a book and the movie it inspired. Despite that the case reads like a movie script, there has been no fairy-tale ending for anyone involved.

¶ 3 The subject of the appeal is a bit less engrossing than the overall subject matter of the case. Here we are called to decide whether Ciolino's claims arising from the publication of the allegedly defamatory statements are barred by the statute of limitations. We hold that the claims against one defendant are time barred, but that the remainder of the claims are not. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

¶ 4 I. BACKGROUND

¶ 5 In 1982, Jerry Hillard and Marilyn Green were murdered in Washington Park in Chicago. Anthony Porter was convicted for the murders and was sentenced to the death penalty. Professor David Protess and other members of Northwestern University's Innocence Project took an interest in the case. Members of the Innocence Project reviewed evidence gathered by Porter's defense attorney during the case and they identified that another man, defendant Alstory Simon, was in the area of the murders close to the time that they were committed. The Innocence Project began to collect and evaluate evidence and, at some point, came to believe that Simon committed the murders, not Porter.

¶ 6 Plaintiff Paul Ciolino was employed as a private investigator and did work for the Innocence Project. Ciolino and another Innocence Project investigator traveled to Milwaukee to meet with Simon. Simon claims that Ciolino arrived at his home in Milwaukee, claiming to be a police officer from Illinois. Ciolino was armed with a handgun. He allegedly informed Simon that his team had developed evidence that pointed to Simon as the guilty party in the Washington Park murders. Simon was a drug addict and he maintains that he was intoxicated at the time of Ciolino's visit.

¶ 7 Ciolino allegedly told Simon that he had secured sworn statements from Simon's ex-wife Inez Jackson, and from others in which they averred that Simon committed the murders. Ciolino showed Simon the statements. Ciolino also showed Simon a video that the Innocence Project had made using a paid actor. The actor in the video stated that he was an eyewitness to the murders and that he saw Simon kill Hillard and Green. Simon also viewed video of a news report in which his ex-wife, Inez Jackson, claimed that she was with Simon when he committed the murders in Washington Park. Simon maintains that Ciolino promised him that he would receive only a short prison sentence if he confessed and that he would receive large sums of money from book and movie deals because of the intense publicity of the case.

¶ 8 As the meeting progressed, Ciolino allegedly informed Simon that he and his colleague were not actually police officers, but that they were members of the Innocence Project. Simon claims that Ciolino then told him that Ciolino and Protess would secure a lawyer to represent him in the murder case and that they would do whatever else was necessary to ensure that he would receive no more than a couple years in jail if he confessed. Ciolino then allegedly informed Simon that the police were imminently on their way from Chicago to arrest him, and that they were trying to help him, but that the only way Simon could avoid the death penalty was to provide a videotaped confession before the police arrived. Ciolino allegedly told Simon that confessing at that moment was his one and only chance to help himself. Simon provided a videotaped confession.

¶ 9 Armed with Simon's videotaped confession and the statements from Simon's ex-wife and her nephew, Walter Jackson, the Innocence Project undertook to free Porter from prison. After a petition was filed and the proceedings progressed, Porter's conviction was vacated. The Cook County State's Attorney simultaneously empaneled a grand jury that indicted Simon for the murders.

¶ 10 Ciolino allegedly followed through on his promise to secure an attorney to represent Simon. Simon, in fact, retained attorney Jack Rimland to represent him in the murder case. Jack Rimland was an attorney in Chicago that shared office space with Ciolino. Rimland purportedly convinced Simon to plead guilty by telling Simon that he needed to make the deal in order to avoid the death penalty or life in prison. Rimland, on Simon's behalf, did not challenge the confession that Simon gave to Ciolino nor did he present any other evidence to the court, including the evidence that implicated Porter in the first place and led to his conviction.

¶ 11 Simon further claims that Rimland told him to apologize to the victims’ families in order to make his confession seem legitimate. During the time Rimland was representing Simon, Rimland maintained contact with his officemate Ciolino. For example, Rimland presented an award to Ciolino and other Innocence Project members for the work they did to overturn Porter's conviction even though he was concurrently representing Simon in a case for the same murders.

¶ 12 Simon eventually did plead guilty to the murders. He was sentenced to 37 years in prison. At his sentencing hearing, Simon apologized to the victims’ families. Simon continued to claim responsibility for the murders in a televised news interview after his guilty plea. Simon also wrote letters to several individuals, including to Anthony Porter, apologizing for committing the murders. Nonetheless, many people did not believe that Simon was responsible for the crimes. Another private investigator, defendant James DeLorto, who did not believe Simon's confession and was skeptical of the Innocence Project's involvement, independently began to investigate Simon's case for the potential that he was innocent of the crimes.

¶ 13 Not surprisingly, the case generated significant publicity, including publicity generated by Ciolino and other members of the Innocence Project giving interviews and making statements to the press. Anthony Porter's exoneration for the Washington Park murders led to Governor George Ryan calling for a moratorium on the death penalty in Illinois.

¶ 14 Ciolino was interviewed on television following Simon's conviction. Ciolino described the tactics he used in securing Simon's confession. Ciolino acknowledged that he used a paid actor to make a video who identified Simon as the shooter. Ciolino stated that, after Simon was confronted with the video and other evidence, Simon just "gave up." Ciolino stated that he and his partner "just bull rushed [Simon] and mentally he couldn't recover." Ciolino stated that, as a private investigator, "I don't have any rules. The Supreme Court says I can lie, cheat, do anything I want, to get him to say what I want him to say." Also in that vein, Protess published a book in which he explained how, on another occasion, Ciolino posed as Hollywood producer Jerry Bruckheimer and offered a witness a movie deal in exchange for the witness to change testimony he had previously given.

¶ 15 Simon filed a pro se petition for postconviction relief claiming that his confession to Ciolino was involuntary and that he received ineffective assistance of counsel from Rimland. The court denied Simon's pro se petition.

¶ 16 Subsequently, defendants Terry Ekl and James Sotos undertook to represent Simon, and they filed a successive postconviction petition on his behalf. In his successive petition, Simon asserted an actual innocence claim and provided new evidence. The new evidence that Simon provided in support of his petition was that two of the witnesses that had implicated Simon in the murders, his ex-wife Inez Jackson and her nephew Walter Jackson, recanted their statements.

¶ 17 Inez Jackson and Walter Jackson explained that they had implicated Simon based on promises from David Protess of the Innocence Project. Inez Jackson reportedly had serious drug and alcohol problems and was allegedly given food, cash, alcohol, and other things of value by...