After being freed once, Ohio man languishes on death row – Ohio Capital Journal

Tony Apanovitch and his supporters are adamant: Hes innocent and theres DNA evidence to prove it.That evidence is in addition to doubts about Apanovitchs 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 courts rationale for re-incarcerating Apanovitch was that he didnt request the DNA testing that he says exonerates him.

Now Apanovitchs lawyers and his advocates are demanding a clemency hearing from the Ohio Parole Board. But Gov. Mike DeWines spokesman said this week that the governor wont request one because Apanovitch hasnt 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. Apanovitchs 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 hadnt 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, Apanovitchs 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 Apanovitchs 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 states case.

Then, in 1991, an employee of the Cuyahoga County Coroners office found slides containing fluids from the victims 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 didnt tell Apanovitchs lawyers that they had done so, the Plain Dealer reported.

The prosecutors tests claimed to find that Apanovitchs DNA matched fluid taken from Flynns mouth, and that there wasnt enough fluid from her pelvis to test. However, they declined to present that evidence in a 2015 court proceeding, Dale Baich, one of Apanovitchs attorneys, told the Capital Journal last year.

Testing ordered up by Apanovitchs team claimed to find the DNA of two people in the samples taken from Flynns mouth and pelvis and that Apanovitchs 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 Apanovitchs 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 wasnt Tonys 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 wasnt on that slide.

Cuyahoga County Common Pleas Judge Robert McClelland in 2015 overturned Apanovitchs 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 didnt 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 didnt 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 governors 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, DeWines 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.

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

SUBSCRIBE

Read more from the original source:
After being freed once, Ohio man languishes on death row - Ohio Capital Journal