Rev. Richard Wing of the First Community Church of Columbus speaks at a press conference in support of death row inmate Tony Apanovitch. -Marty Schladen, Ohio Capital Journal
Tony Apanovitch and his supporters are adamant: He’s innocent and there’s DNA evidence to prove it. That evidence is in addition to doubts about Apanovitch’s conviction raised by a state Supreme Court Justice before the existence of the DNA came to light.
In fact, doubts about his conviction are so compelling that a trial court judge freed Apanovitch in 2015, only to see the Ohio Supreme Court send him back to death row on a technicality in 2018. The court’s rationale for re-incarcerating Apanovitch was that he didn’t request the DNA testing that he says exonerates him.
Now Apanovitch’s lawyers and his advocates are demanding a clemency hearing from the Ohio Parole Board. But Gov. Mike DeWine’s spokesman said this week that the governor won’t request one because Apanovitch hasn’t exhausted his appeals or had an execution date set.
In Ohio, there have been 11 people who have been sent to death row only to be exonerated. Apanovitch’s supporters argue that he should be the 12th.
Now 68, he was convicted in the 1984 rape and murder in Cuyahoga County of Mary Anne Flynn, who was found dead in her home after she hadn’t shown up for her job as a nurse at Cleveland General Hospital. Apanovitch received the death penalty.
Even before the DNA evidence came to light, the Ohio Supreme Court in 1987 nearly overturned the conviction, with three dissents to four justices voting to uphold it.
That was before the court adopted the doctrine of “residual doubt” — overturning convictions because of a lingering fear that the defendant might not be guilty. Had that doctrine been in place, Apanovitch’s appeal would have turned out differently, Justice Craig Wright wrote to the Parole Board in 1996.
“There is no question that there is some ‘residual doubt’ in this case and had we had that doctrine, this case would have gone the other way,” said Wright, who wrote the ruling denying Apanovitch’s appeal. “Mr. Apanovitch would not have to face the death penalty. I think it of some interest that I have discussed this case with my now-colleague, Justice (Francis Edward) Sweeney, who was the trial judge in this case. He has indicated to me that he came close to granting a Rule 29 motion (that the evidence was insufficient for a conviction) following the state’s case.”
Then, in 1991, an employee of the Cuyahoga County Coroner’s office found slides containing fluids from the victim’s mouth and pelvis that were previously believed to be lost, the Cleveland Plain Dealer reported last year. Any DNA evidence gathered from them would be crucial, because there were no eyewitnesses to the crime; only testimony that Flynn had complained that Apanovitch had made sexually suggestive comments to her while he was painting her house that summer.
There was too little fluid to do DNA testing, given the technology at the time the slides were discovered.
But in 2000 and 2006, prosecutors asked for additional testing using more advanced technology. Crucially, however, they didn’t tell Apanovitch’s lawyers that they had done so, the Plain Dealer reported.
Disputed evidence that wasn’t presented
The prosecutor’s tests claimed to find that Apanovitch’s DNA matched fluid taken from Flynn’s mouth, and that there wasn’t enough fluid from her pelvis to test. However, they declined to present that evidence in a 2015 court proceeding, Dale Baich, one of Apanovitch’s attorneys, told the Capital Journal last year.
Testing ordered up by Apanovitch’s team claimed to find the DNA of two people in the samples taken from Flynn’s mouth and pelvis and that Apanovitch’s DNA was found in neither sample. Defense attorneys also raised questions about the integrity of samples that lay undiscovered in a desk for so many years.
The events were emblematic of the slipshod nature of Apanovitch’s prosecution, Tiana Bohnanon, another of his attorneys, said last week at a press conference urging the Parole Board to schedule a clemency hearing for her client.
Prosecutors “said the evidence had been destroyed,” Bohanon said. “And then they turned around years later and tested those slides and it turns out that it wasn’t Tony’s DNA. Their case was that Tony was the one that raped her and murdered her, but there was no witness that Tony murdered her and his DNA wasn’t on that slide.”
Cuyahoga County Common Pleas Judge Robert McClelland in 2015 overturned Apanovitch’s conviction and freed him after three decades on death row.
While free, Apanovitch held a job and got married. But in 2018, the Ohio Supreme Court sent him back to death row on the rationale that the DNA evidence can only be considered if Apanovitch requested the initial testing — of samples he didn’t know were available and that prosecutors waited years to disclose.
“According to the court, the DNA statute in Ohio applies only where the prisoner makes the request to test the DNA,” the group Justice 4 Apanovich said in a written statement last week. “Tony didn’t ask for the testing to be done — indeed he never had the opportunity to make that request — because the state did the testing itself in secret…”
As Apanovitch continues to languish on death row, his lawyers and other supporters are calling on DeWine to grant clemency. But to do that, he needs a recommendation from the parole board, which is appointed by the director of the Ohio Department of Rehabilitation and Correction — who is appointed by the governor, DeWine.
So far at least, neither board nor governor is inclined to act.
The board has an unwritten policy of not scheduling clemency hearings until an execution date is set for a defendant. But those dates keep moving back as DeWine has delayed every execution since he took office nearly four years ago, citing the unavailability of the necessary drugs.
The governor’s office was asked whether DeWine would heed calls from state Reps. Jean Schmidt, Josh Williams and Bill Seitz — all fellow Republicans — as well as many others and call on the Parole board to schedule a clemency hearing for Apanovitch.
“Without getting into the evidentiary disputes in this case, it is correct that the Parole Board could schedule a hearing if it so chose,” Dan Tierney, DeWine’s press secretary, replied in an email. “However, we are aware the Parole Board generally only does so if all appeals have been exhausted OR an execution date has been set. Our understanding is appeals have not been exhausted, so that remains the current avenue to argue ‘actual innocence.'”
Former Ohio Supreme Court Justice Herbert Brown said the Parole Board has a duty to act.
“The 2018 Ohio Supreme Court decision sent a man back to death row, and effectively narrowed any legal options in the courts for Mr. Apanovitch,” Brown wrote in a March 11, 2022 letter to the Parole Board. “This board has the authority, even the duty, to right a wrong and correct an injustice that has now lasted almost 38 years.”
He added, “Although the death penalty remains a punishment accepted by the courts, legislature and the public, nobody should countenance the execution of an innocent man. Certainly not on the technical point of whether it was the state or Mr. Apanovitch who requested the exculpatory DNA evidence. Considering all of the above, I believe this Board should release Mr. Apanovitch from prison.”
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