Private Investigator Allowed to Sue Documentary Filmmakers for Defamation

A scandal at a university’s innocence project led to a defamation suit by one of the project’s former employees against a writer of a book and documentary filmmakers who accused the employee of engaging in criminal behavior in pursuit of a false murder confession. The employee’s defamation claims were initially found to be untimely by the trial court, but the Illinois appellate court reversed the decision. The Illinois Supreme Court took up the appeal of the filmmaker’s and affirmed the decision of the appellate court, finding that each new showing of the documentary film to a limited audience retriggered the statute of limitations, making the claims timely.

Northwestern University’s Medill School of Journalism (Innocence Project) sought to exonerate Anthony Porter for the 1982 murders of Jerry Hillard and Marilyn Green. Those working at the project suspected that a different individual, Alstory Simon, had committed the murders. Paul Ciolino, a private investigator, worked at the Innocence Project. Ciolino obtained a videotaped confession from Simon after allegedly promising Simon that he would be represented by an attorney whom Ciolino knew.

Porter’s conviction was vacated and, after being pressured by his attorney, Simon pled guilty to the murders and was sentenced to 37 years in prison. Some people remained unconvinced that Simon had actually committed the murders. Simon unsuccessfully filed a pro se petition for postconviction relief. After obtaining representation, a second petition was filed on Simon’s behalf asserting actual innocence. That petition contained new evidence that two witnesses who had implicated Simon had recanted their statements. The witnesses stated that their earlier statements implicating Simon were induced by promises to them made by David Protess of the Innocence Project.

Following an investigation of the Innocence Project’s journalistic and investigative practices, Anita Alvarez, the Cook County State’s Attorney revisited Simon’s case and formally abandoned all charges against him. Simon’s convictions were then vacated by the circuit court, by which time he had served 15 years in prison. In 2015, Simon filed a federal civil rights lawsuit for malicious prosecution against Ciolino, Northwestern University, Protess, and his former attorney Jack Rimland.

In 2011, William Crawford authored a document, later published as a book, which argued that the Innocence Project had framed Simon. In the book, Crawford theorized that Simon was framed by Ciolino and others to secure Porter’s release and ultimately end the death penalty in Illinois. The book later inspired a documentary film created by Andrew Hale and Whole Truth Films. The film claimed that Ciolino engaged in criminal behavior in his efforts to obtain a false confession from Simon.

In April 2016, Ciolino filed a counterclaim in Simon’s federal case. Ciolino countersued Simon and several other defendants for defamation, false light, intentional infliction of emotional distress, and conspiracy. In January 2017 Ciolino’s claim was dismissed because the court concluded that the counterclaim was not compulsory and that the district court lacked supplemental jurisdiction. Ciolino later filed his claims as a complaint in the circuit court of Cook County. The circuit court granted the defendants’ motion to dismiss which asserted that Ciolino’s claims were untimely. Ciolino then appealed.

The Illinois appellate court affirmed in part and reversed in part. The appellate court reversed the circuit court’s ruling that Ciolino’s claims against one defendant were time-barred. The appellate court determined that many factual issues existed affecting whether the discovery rule applied to Ciolino’s claims against the documentary filmmakers, which would toll the statute of limitations applied to his claims. The filmmakers appealed and the Illinois Supreme Court granted leave to appeal.

The Illinois Supreme Court began by noting that Section 13-201 of the Illinois Code of Civil Procedure provides that a cause of action for defamation or false light must be filed within one year of the claim’s accrual. The court stated that the discovery rule permits a plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the existence of the right to sue. The court noted that the filmmaker asserted that application of the discovery rule to the instant case would undermine the enactment of the Uniform Single Publication Act, which limits more than one cause of action for the same means of publication, no matter how many times that publication is reproduced.

The court determined that the screening of the film in July 2015 did not fall within the ambit of the single publication rule. The court found that each screening of the documentary constituted a separate publication as the screenings were shown to new and distinct audiences at different locations, dates, and times. The court determined that the subsequent audiences could not be grouped together with the audience that attended the film’s premiere a year earlier. The court determined therefore that the statute of limitations was retriggered when the film was subsequently shown, and Ciolino’s claims against the filmmakers were thus timely. The court affirmed the decision of the appellate court.

You can view the decision here.

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