Anthony Porter (Photo: Loren Santow)
False testimony by a purported eyewitness landed Anthony Porter on death row
Anthony Porter had exhausted his appeals, his family had made his funeral arrangements, and he was just 50 hours away from execution when he won a reprieve from the Illinois Supreme Court in late 1998.
The reprieve was granted not out of concern that Porter might be innocent but solely because he had tested so low on an IQ test that the court was not sure he could comprehend what was about to happen to him, or why. The court's intent was merely to provide time to explore the question of the condemned man's intelligence, but it had an unanticipated consequence: It gave a Northwestern University Professor David Protess, private investigator Paul Ciolino, and a team of journalism students time to investigate the case and establish Porter's complete innocence.
Porter had been convicted of two murders. The victims, Marilyn Green, 19, and Jerry Hillard, 18, were shot to death in the bleachers overlooking a swimming pool in Washington Park on the South Side of Chicago shortly after 1 a.m. on August 15, 1982. Police originally surmised that the crime had been an armed robbery, but it is now known to have resulted from a dispute over drug money.
Immediately after the shooting, police interviewed William Taylor, who had been swimming in the park pool when the murders occurred. Taylor at first said he had not seen the person who committed the crime. Later at the station, he said he had seen Anthony Porter run by right after he heard the shots. After another 17 hours of interrogation, Taylor told police that he actually had seen Porter shoot the victims.
Taylor's evolving story turned Porter, a South Side gang member, into the only suspect, even though the police had been given information casting suspicion on others: Ofra Green, mother of the female victim, had told the police that she suspected that the murders had been committed by a man named Alstory Simon, who had been in a heated dispute with Jerry Hillard over drug money. Mrs. Green also said she had seen Simon and his wife, Inez Jackson, with the victims shortly before they turned up dead.
Police did interview Simon and Jackson, but according to statements the Northwestern team eventually obtained from the pair, just showed them a photograph of Porter and asked if they had any information about the crime. Simon and Jackson responded that they had not been in the park that night. They said they were asked nothing further and never heard from the police again. A few days later, Simon and Jackson moved to Milwaukee.
After hearing that his name had been mentioned in connection with the double murders, Anthony Porter went to the police station. Despite his protestations of innocence and the lack of physical evidence connecting him with the murders, he was arrested and charged with the two murders, one count of armed robbery, one count of unlawful restraint, and two counts of unlawful use of weapons.
Although Porter qualified for representation by the Cook County Public Defender's Office, his family thought he would be better off with a private lawyer. They retained Chicago attorney Akim Gursel, agreeing to pay him $10,000. However, they paid him only $3,000. Gursel later said that, due to lack of funds, he stopped investigating.
In September of 1983, Porter went on trial before Judge Robert L. Sklodowski and a jury in Cook County Circuit Court. During the trial, Gursel once fell asleep; the transcript shows that Sklodowski awakened him. After the prosecution rested, Gursel called only two alibi witnesses and a photographer who had taken aerial shots of Washington Park. The jury deliberated nine hours before convicting Porter on all counts.
The next day, Gursel waived Porter's right to a jury for sentencing, and a bench sentencing hearing began before Sklodowski. At the conclusion of the first phase of the hearing, at which it was determined that Porter was eligible for the death penalty, Sklodowski noted that the jury had not been formally dismissed. At that point, Gursel told Sklodowski he had discovered that one of the jurors and Marilyn Green's mother attended the same church. Since the juror had failed to disclose the relationship during the jury voir dire, Gursel moved for a mistrial.
Sklodowski briefly inquired of the juror, asking whether it was in fact true. "Yes, but that didn't make any difference to me about that,? the juror responded. Sklodowski then asked when she realized she knew Ofra Green, and the juror replied, "After it had got started and everything was going on,? Sklodowski then asked, "But, it made no difference to you, right?" "No, that is right,? said the juror. The jury was then discharged, and Sklodowski denied Gursel's motion for a mistrial. Gursel protested that Sklodowski's inquiry of the juror had been too cursory to determine whether there had been actual prejudice, but Sklodowski wouldn't budge.
After the second phase of the death penalty hearing the next day. Sklodowski found nothing in mitigation sufficient to preclude imposition of the ultimate sanction. Calling Porter "a perverse shark," Sklodowski sentence him to die.
In February of 1986, a sharply divided Illinois Supreme Court denied Porter's direct appeal. The principal issue was whether Porter had been denied a fair trial before an impartial jury. Writing for a four-member majority, Justice Howard C. Ryan concluded that, since the juror in question did not realize until after the trial began that she knew the mother of one of the victims, it was unlikely that their relationship had been close. Justice William G. Clark filed a dissenting opinion, saying the majority had no basis for speculating on the closeness of the relationship and, therefore, the conviction should be vacated. Justice Seymour Simon filed a separate dissent, joined by Justice Joseph H. Goldenshersh, in which he noted that the colloquy between Sklodowski and the juror lasted just seconds and had been leading and otherwise deficient.
Porter petitioned for certiorari, which was denied seven-two by the U.S. Supreme Court the following October. Justices Thurgood Marshall and William Brennan dissented, saying the majority of the state high court had erred in requiring the defendant to bear the burden of showing actual prejudice when the probability of bias was as substantial as it appeared in the Porter case.
Next, Porter filed a post-conviction petition alleging he had been denied effective assistance of counsel by Gursel's failure to locate and call four trial witnesses who could have suggested that Alstory Simon and Inez Johnson actually committed the murders. By this time, Sklodowski had left the bench in disgrace over a financial scandal, and the case was assigned to Judge Richard C. Neville, who denied relief. In January of 1995, the Illinois Supreme Court, in an opinion written by Justice Charles E. Freeman, unanimously affirmed Neville.
In a petition for a federal writ of habeas corpus, Porter asserted essentially the same errors that he had raised in the state courts. U.S. District Court Judge Charles R. Norgle, Sr., denied relief in 1996. The following year, Norgle's decision was unanimously affirmed by the U.S. Court of Appeals for the Seventh Circuit in an opinion written by Judge Michael S. Kanne. After certiorari was denied on March 23, 1998, Porter's execution was set for September 23.
At this point, a volunteer Chicago lawyer, Daniel R. Sanders, took the case and had Porter's IQ tested. It was measured at 51, which meant that Porter likely was mentally retarded. Sanders was then joined by four other pro bono lawyers — Lawrence C. Marshall, Alan L. Goldman, Aviva Futorian, and Joseph M. Tobias — in challenging the impending execution. Although it was then legal to execute the mentally retarded, the team filed a last-minute petition with the Illinois Supreme Court, arguing that Porter's mental capacity rendered him incapable of understanding his punishment and, therefore, that he should not be executed.
Fifty hours before Porter was scheduled to die, the court granted a stay of execution, ordering the Cook County Circuit Court to hold a competency hearing to determine whether Porter was fit to be executed. Soon after the stay was granted, Protess, Ciolino, and the students started investigating the case.
In December of 1998, William Taylor recanted his testimony to Ciolino and one of the students. He said in an affidavit that police had pressured him to name Porter as the shooter. On January 29, 1999, Alstory Simon's now-estranged wife, Inez Jackson, told Protess, Ciolino, and two of the students that she had been present when Simon shot Green and Hillard. She said she did not know Anthony Porter, but that he most certainly had nothing to do with the crime. Four days later, on February 3, Alstory Simon confessed on videotape to Ciolino, asserting that he had killed Hillard in self-defense after the two argued over drug money. Simon claimed the shooting of Marilyn Green had been accidental.
Two days later, Porter was released from prison on a recognizance bond and the murder charges against him were officially dropped the next month. Porter thus became the tenth person sentenced to death in Illinois under the present capital punishment law to be released based on innocence.
In September of 1999, Alstory Simon pleaded guilty to two counts of second degree murder and was sentenced to 37.5 years in prison. Anthony Porter has since filed a civil rights lawsuit against the Chicago police.
Case Summary (pdf)