Latest / Wrongful Conviction / #580 Jason Flom with Anthony Apanovitch

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#580 Jason Flom with Anthony Apanovitch · Wrongful Conviction

0:04
Speaker 1: Hi.
0:05
Speaker 2: It's Connor Hall, senior producer for Wrongful Conviction with another
0:08
Speaker 2: case update and behind the scenes insights. This one I'll
0:14
Speaker 2: never forget Tony Panovitch, Ohio death penalty case. After this
0:19
Speaker 2: came out, they ended up putting him in the hole.
0:21
Speaker 2: I felt terrible about it. We don't ever want to
0:24
Speaker 2: do harm. That's like our number one guiding light here
0:28
Speaker 2: is we do no harm. And that was harm that
0:30
Speaker 2: we did. Of course. I reached out to his attorney
0:33
Speaker 2: Dale Base and he was like, Tony said he'd do
0:36
Speaker 2: it again anyway, and he said, since then, you know,
0:38
Speaker 2: life has been better in there because you know some
0:40
Speaker 2: of the guards that they treat him a little bit better,
0:43
Speaker 2: which I guess any kind of positive is welcome when
0:45
Speaker 2: you're on death row. And another guiding principle that we
0:49
Speaker 2: have here is you know, if we can help, we
0:51
Speaker 2: will help. You know how much help are we actually
0:54
Speaker 2: delivering here? You know, just a podcast, right, but I
0:59
Speaker 2: wish other people have that as their guiding light, presidents
1:02
Speaker 2: and governors. You know, if you'd listened to the one
1:05
Speaker 2: we did about Billy Allen a couple of weeks ago,
1:08
Speaker 2: I was talking about pardon powers and you know, I
1:10
Speaker 2: made the plea to Ohio Governor Mike Dwine, who is
1:14
Speaker 2: known to be against the death penalty. There's been an
1:16
Speaker 2: unofficial moratorium on carrying out the death penalty during his term,
1:21
Speaker 2: So I made a plea that he pleas act in
1:24
Speaker 2: his final months in office to make that moratorium official.
1:28
Speaker 1: Somehow.
1:30
Speaker 2: That was June fourth, and just twelve days later, I
1:34
Speaker 2: credit myself. Of course, I hope that's tripping with the
1:38
Speaker 2: intended sarcasm, but my plea was answered. In part. Governor
1:44
Speaker 2: Dwine made a statement calling on state legislators to abolish
1:49
Speaker 2: the death penalty, and his reasoning, you know, he says that,
1:52
Speaker 2: you know, he believes that it does nothing to deter
1:55
Speaker 2: these kinds of crimes. That's the only reason, right. But
1:59
Speaker 2: my plea has more to do with how little confidence
2:02
Speaker 2: our legal system and those who operated inspire. We've covered
2:07
Speaker 2: tons of innocent cases out of Ohio. Alexis Martin, Ruel,
2:11
Speaker 2: Sailor Ricardo Gray, Marcus Blaylock, David Thorne, A shunt ay
2:14
Speaker 2: and William Smith, David Smith, Chris Smith, Al Cleveland, Evan King,
2:19
Speaker 2: Dean Gillispie, Raymond Allen Warren, Robert McClendon, Lewis Castillo Junior,
2:25
Speaker 2: Eric Mish, Isaiah Andrews. While we didn't cover Isaiah Andrews,
2:29
Speaker 2: he passed away before we got.
2:30
Speaker 3: A chance to.
2:31
Speaker 2: But there's so many people out of Ohio, Kevin Keith,
2:33
Speaker 2: Gary Beeman, Dwayne Brooks, Derek Jamison, Chris Miller, Marcus Sapp.
2:38
Speaker 2: I mean, Jesus, when you go to the innocentce Network conference,
2:41
Speaker 2: half the people there are from like Ohio and Illinois.
2:44
Speaker 2: And that might be just because you know, there's so
2:46
Speaker 2: many pro bono lawyers to go around there and there
2:50
Speaker 2: aren't in other places who have just as many problems.
2:53
Speaker 2: And then you think about all the states that still
2:55
Speaker 2: have an operational death row and how many of the
2:59
Speaker 2: people must be innocent? I mean, Jason often asks death
3:02
Speaker 2: penalty supporters, how many innocent people are you willing to
3:06
Speaker 2: kill to keep this thing going? Are you willing to
3:08
Speaker 2: be that sacrifice so that we can all feel tough
3:11
Speaker 2: on crime? In Ohio? Loone death row cases we've covered
3:16
Speaker 2: Joe Danbrosio, Elwood Jones, Ricky Jackson, Kwame Ajamu, Wilie Bridgeman,
3:23
Speaker 2: all of whom are now free. And then there's so
3:25
Speaker 2: many more that still remain there that we know about, right,
3:29
Speaker 2: Tyron Noling, Jeffrey Wogenstahl, Keith Lamar, Tonya Panovitch. I'm knowing
3:35
Speaker 2: that I a civilian, I can rattle off nine people
3:40
Speaker 2: from Ohio's death row, knowing that in all likelihood there
3:43
Speaker 2: are more. Wouldn't it seem necessary to just commute all
3:47
Speaker 2: these prisoners off death row to life in prison? If
3:50
Speaker 2: that's you know, as far as you're willing to go, right?
3:54
Speaker 2: I mean, what if one of these innocent people on
3:56
Speaker 2: death row was a friend or a family member, What
3:59
Speaker 2: if it was you? Would you be willing to be
4:01
Speaker 2: that sacrifice? I want you to think about this when
4:03
Speaker 2: you're listening to Tony I Panovitch's story. He was in
4:08
Speaker 2: nineteen eighty four rape and murder. The State's known for
4:11
Speaker 2: decades that DNA testing of the crime scene evidence exonerates Tony,
4:16
Speaker 2: Yet they first tried to hide it from him, then
4:19
Speaker 2: they fought to keep it from being used in court,
4:22
Speaker 2: and when it was finally presented showing two unknown male profiles,
4:28
Speaker 2: Tony was finally set free in twenty sixteen, but the
4:32
Speaker 2: state appealed that decision to the Ohio Supreme court arguing that, well,
4:38
Speaker 2: he didn't order the DNA testing, he didn't request it.
4:42
Speaker 2: That's the post conviction DNA testing statute is that it
4:45
Speaker 2: has to be requested by the defendant, not the state.
4:48
Speaker 2: He can't use that, so he was taken back to prison,
4:53
Speaker 2: back to death row in twenty eighteen. That's our system
4:56
Speaker 2: operating as it was designed, or as it was amended
5:01
Speaker 2: along the way. Now since our coverage, bipartisan legislation has
5:06
Speaker 2: been introduced at least twice to change the post conviction
5:09
Speaker 2: DNA statute that led Tony back to death row, but
5:13
Speaker 2: it never made it out of committee, and then his
5:15
Speaker 2: clemency petition has stagnated because the parole board says, well,
5:20
Speaker 2: it can't review it until there's an execution date. So
5:23
Speaker 2: Tony needs to be on death's door to maybe then
5:28
Speaker 2: have a bunch of political appointees, however corruptible they might be,
5:33
Speaker 2: to consider his case and then pass along their recommendation
5:37
Speaker 2: to the governor. Who knows when that will be. Meanwhile,
5:42
Speaker 2: there is a man whose grandchildren would love to have
5:46
Speaker 2: him around.
5:49
Speaker 3: It was the summer of nineteen eighty four. Tony Ipanovitch
5:53
Speaker 3: was in the process of building his house painting business
5:55
Speaker 3: on the west side of Cleveland. On August twenty third,
5:59
Speaker 3: a woman named Mary Ann Flynn was beaten and strangled
6:02
Speaker 3: to death. Authorities collected seamen from her body. Police soon
6:07
Speaker 3: identified plenty of likely suspects, including a violent ex boyfriend,
6:11
Speaker 3: an ex tenant who had been accused of rape, and
6:14
Speaker 3: a few other men who had keys to her house,
6:16
Speaker 3: as well as Tonya Panovitch, who had done some painting
6:19
Speaker 3: for her earlier that summer, but Tony's whereabouts were entirely
6:22
Speaker 3: accounted for. On the night of her murder, Tony was
6:25
Speaker 3: perhaps too cooperative with police, refusing a lawyer, answering all
6:29
Speaker 3: their questions and even voluntarily giving up hair, blood, and
6:33
Speaker 3: saliva samples. He happened to have the same blood type
6:36
Speaker 3: as fluid found at the scene, but the state presented
6:39
Speaker 3: that piece of evidence without mentioning that miss Flynn had
6:42
Speaker 3: that exact same blood type. The state hit evidence. The
6:46
Speaker 3: detective lied on the stand, and in nineteen eighty four,
6:49
Speaker 3: without DNA testing available to prove his innocence, Tony would
6:53
Speaker 3: have to wait for that scientific advancement to free him
6:56
Speaker 3: from his death sentence after thirty two years. But Remarkably,
7:01
Speaker 3: his time on death Row didn't end there. This is
7:06
Speaker 3: Wrongful Conviction with Jason Flamm. Welcome back to Wrongful Conviction
7:22
Speaker 3: with Jason Flamm, and soon you'll be hearing the subject
7:26
Speaker 3: of this episode, a man named Anthony Apanovich calling in
7:30
Speaker 3: from death Row in Ohio, where he has been for
7:34
Speaker 3: the better part of four decades for a crime he
7:37
Speaker 3: didn't commit. With us on the show today is Dale Base,
7:40
Speaker 3: a federal public defender who has been the lead lawyer
7:44
Speaker 3: and staunch advocate for mister Ipanovich since nineteen ninety one,
7:50
Speaker 3: probably before some of you were born, that's how long
7:51
Speaker 3: he's been working on this case. So Dale, welcome back
7:54
Speaker 3: to Wrongful Conviction.
7:56
Speaker 4: Thank you, Jason, it's good to be back.
7:58
Speaker 1: Hello.
7:59
Speaker 5: This is a pay debit call from Tony, an inmate
8:03
Speaker 5: at the Chilla Coffee Correctional Institution. To accept this call,
8:07
Speaker 5: Press zero, thank you for using GTL.
8:12
Speaker 1: They're ow.
8:13
Speaker 3: Hey, Tony, I'm happy to have you here with us,
8:15
Speaker 3: but obviously I'm really sorry that it's under these circumstances.
8:19
Speaker 1: All Right, Thanks Jason, I appreciate that. I appreciate this
8:22
Speaker 1: opportunity to tell my story.
8:25
Speaker 3: Now, Tony, I want to go back to before any
8:28
Speaker 3: of this happened. You grew up in Ohio, right, Oh.
8:31
Speaker 1: Yeah, yeah, I grew up on the east side of Cleveland.
8:35
Speaker 1: You quit going to school in about about the eighth grade.
8:38
Speaker 1: I just started working when I was twelve years old.
8:40
Speaker 1: I like construction work, though I like working outside. I
8:43
Speaker 1: was a truck driver for about five years. Then I
8:46
Speaker 1: was trying to get a painting business started because I figured,
8:49
Speaker 1: you know, the summer months, I could work outside painting,
8:51
Speaker 1: and then in the winter months I would be able
8:53
Speaker 1: to drive truck.
8:54
Speaker 3: And so this brings us to the summer of nineteen
8:57
Speaker 3: eighty four. Two neighbors have both hired you to do
9:00
Speaker 3: some painting, Mary An Flynn and the guy that lived
9:03
Speaker 3: across the street. For her, you painted the outside bottom
9:06
Speaker 3: half of Miss Flynn's house. Now she intended to paint
9:09
Speaker 3: her window frames herself, and then you started working across
9:12
Speaker 3: the street painting her neighbor's entire house. And that brings
9:15
Speaker 3: us up to August twenty third, nineteen eighty four. You
9:19
Speaker 3: noticed that she hadn't gotten to painting the windows yet
9:22
Speaker 3: and tried to get a little more business for yourself.
9:24
Speaker 1: So when I seen her, I walked over. I asked
9:26
Speaker 1: her if she wasn't going to be able to get
9:28
Speaker 1: to those frames that I said she wanted, I could
9:30
Speaker 1: get it done, you know, because the weather's changing. She said, well,
9:33
Speaker 1: she'd let me know. I think I told her it
9:35
Speaker 1: was going to be like sixty bucks or something to
9:37
Speaker 1: paint them. So that was the last time I had
9:39
Speaker 1: seen her or talked to her. It was around four thirty. Well,
9:42
Speaker 1: went back across the street and we finished up the job.
9:44
Speaker 1: Then then we headed to the bar. That's what I
9:46
Speaker 1: did the rest of the night, you know, was bar
9:49
Speaker 1: hopping in the neighborhood.
9:50
Speaker 3: So later that night, mary Ann Flynn was raped and
9:54
Speaker 3: brutally murdered in her bedroom. She'd been strangled and severely beaten,
9:58
Speaker 3: and seamen was found and collected from both her mouth
10:02
Speaker 3: and her vagina.
10:03
Speaker 4: Yes, so Marianne's body was transported to the County Coroner's
10:09
Speaker 4: office in Cuyahoga County, Okay.
10:12
Speaker 3: And I got to stop for a second because Kyahaga
10:15
Speaker 3: County was notorious as one of, if not the most corrupt, disorganized,
10:21
Speaker 3: disfunctional crime labs in the entire country at that time.
10:25
Speaker 3: The police, prosecutors and the corner's office have all been
10:29
Speaker 3: the subject of news articles, scandals, podcasts for being sloppy
10:34
Speaker 3: or outright corrupt.
10:36
Speaker 4: And let me give you a couple of examples. Liliana
10:39
Speaker 4: Segura with The Intercept, did some great reporting that documented
10:43
Speaker 4: a pattern of misconduct in the Cayahaga County Prosecutor's office.
10:48
Speaker 4: And in twenty eighteen, season three of the podcast serial
10:53
Speaker 4: feature the Cleveland Police Department, the Prosecutor's office, and the
10:57
Speaker 4: courts in Cayahaga County as being somewhat corrupt, and the
11:02
Speaker 4: folks at the Cayahaga County Coroner's Office admitted that they
11:06
Speaker 4: ran a sloppy lab. So you have all that going
11:10
Speaker 4: on during the time that Tony's case was making its
11:14
Speaker 4: way through the court system in Cayahaga County.
11:17
Speaker 3: And of course this crime lab's dubious work will become
11:21
Speaker 3: relevant later. But first, Tony, let's get back to the
11:24
Speaker 3: investigation of your alibi. You had gone bar hopping. The
11:29
Speaker 3: bars you went to that night, you were a bit
11:31
Speaker 3: of a regular at and your whereabouts were accounted for
11:34
Speaker 3: by the people who saw you all through the night.
11:37
Speaker 1: Oh yeah, these are people. I shrink withed these bars
11:39
Speaker 1: and these people knew who I was, and as far
11:42
Speaker 1: as them telling the cops that I was there at
11:44
Speaker 1: the bar, that was no problem. As far as my
11:47
Speaker 1: alibi went, I mean, I was where I said I was,
11:50
Speaker 1: and then when I left one bar, went to the
11:52
Speaker 1: next one within the time that it would have taken
11:55
Speaker 1: normally to get from A to B. No hour delays
11:59
Speaker 1: in between or nothing like that. There was no skipping.
12:02
Speaker 1: So wherever I was that night, whatever bar I went to,
12:05
Speaker 1: whatever time I got there and left, they know that
12:08
Speaker 1: was all covered.
12:09
Speaker 3: So how did you get pulled into this?
12:11
Speaker 1: Well, I'll tell you, Jason. Here's what the homicide detectives
12:15
Speaker 1: told me. My name came up in the investigation as
12:19
Speaker 1: they were canvassing the neighborhood and I go downtown with
12:23
Speaker 1: them and they start asking me questions. They tell me, well,
12:26
Speaker 1: we're going to have to hold you. We want to
12:27
Speaker 1: check your alibi. They kept me in jail that night.
12:30
Speaker 1: Next day, they wondered if I would mind giving them
12:33
Speaker 1: a blood sample. I'm like, yeah, no, I got no
12:36
Speaker 1: problem with that. They take my blood, they want to
12:38
Speaker 1: take some of my hair, hand my saliva, So I
12:41
Speaker 1: give them all that and they're asking me do you
12:43
Speaker 1: want a lawyer. You know, before we asked that I
12:45
Speaker 1: don't need no loader. Man. You know, I'm cooperating one
12:48
Speaker 1: hundred percent because I didn't do it. Then they'd asked,
12:51
Speaker 1: can we go to your house and look at your clothes?
12:53
Speaker 1: I'm like, yeah, okay, cool. See I'm not too upset
12:57
Speaker 1: about why they're doing this because I am an extra con.
13:00
Speaker 1: I did four years or one month for arm robbery.
13:03
Speaker 1: I had it coming. I did my time, you know,
13:05
Speaker 1: And they told me that right off the jump. Being
13:07
Speaker 1: the next con made him look at me a little
13:09
Speaker 1: harder than you know, average Joe. I say, okay, cool.
13:12
Speaker 1: So they went to my house, they get most of
13:14
Speaker 1: my clothes, and they keep me in jail another night.
13:18
Speaker 1: Well the next day, by now i'm tested off. I'm
13:20
Speaker 1: talking to Detective Zalor. I said, that's it. I'm ready
13:23
Speaker 1: to go. He said, well, you know, we don't have
13:24
Speaker 1: to charge you. We can hold you so many days.
13:26
Speaker 1: You know, it was up that day. I said, this
13:29
Speaker 1: is it, man, I'm going home. He said, well, let
13:32
Speaker 1: me come back this afternoon. He said, I'm waiting on
13:34
Speaker 1: the lab report. Anyhow, he come back about three three thirty,
13:38
Speaker 1: got me out of the seth. So I leave, I
13:40
Speaker 1: go home. I'm not thinking too much of it. I'm
13:42
Speaker 1: just wondering when I'm going to get my clothes back,
13:44
Speaker 1: because when I get home, I see they got most
13:46
Speaker 1: of them gone. So, uh, maybe five days later, I
13:49
Speaker 1: had a ticket that I had gotten a couple of
13:51
Speaker 1: weeks earlier that I had to go to court for.
13:53
Speaker 1: So I called down to Detective Zalor. I say, listen,
13:56
Speaker 1: I'm going to be in court tomorrow. I want to
13:58
Speaker 1: come pick up my clothes. He said, no problem. So
14:00
Speaker 1: when I go down to go to court, he tells
14:02
Speaker 1: me he wants me to come upstairs because he wanted
14:06
Speaker 1: the corner to take a look at me. They take
14:08
Speaker 1: me in the room. The corner comes in. They say, well,
14:10
Speaker 1: they want to look at my tenis okay? So I
14:14
Speaker 1: let her look. She looks at it and says, no,
14:16
Speaker 1: this isn't it and leaves the room.
14:19
Speaker 6: Wait wait, why, well, I know what it is now.
14:23
Speaker 6: There was this guy named Ronnie Shelton. He's called the
14:26
Speaker 6: West Side Rapists. He was going around raping women all
14:30
Speaker 6: over that area on the west side of Cleveland at
14:33
Speaker 6: that time, and he had something wrong. I guess he
14:36
Speaker 6: had some kind of scams and stuff on his dick
14:39
Speaker 6: that they wanted to see if I had on mine,
14:42
Speaker 6: And well, of course it wasn't me, so all.
14:44
Speaker 3: Right, So continue Was there anything else relevant about this
14:48
Speaker 3: contact with Zala?
14:50
Speaker 1: I had called to ask about my clothes before I
14:53
Speaker 1: went down to the traffic ticket. Just before he hung up,
14:57
Speaker 1: he said, well, you know, Tony, you can still get
15:00
Speaker 1: indicted for this. So I said, if that happened there,
15:04
Speaker 1: give me a call.
15:05
Speaker 3: Then that conversation comes up later at trial when Detective
15:08
Speaker 3: Salad gives it. Well, he gave a very misleading testimony.
15:12
Speaker 3: But for now there's this indictment threat looming. But you're
15:16
Speaker 3: not too worried because after all, your innocent weeks go
15:20
Speaker 3: by and nothing happens until you were house sitting for
15:23
Speaker 3: your in laws.
15:24
Speaker 1: So this is like October. Second. I come out to
15:29
Speaker 1: the shower. My wife's in the shower. It's about noon.
15:32
Speaker 1: The phone rings. Detective sealar, I need you to come down.
15:35
Speaker 1: I want to talk to I said, yeah, well, you
15:36
Speaker 1: know I told you everything. Man, I got no more
15:39
Speaker 1: to add. He's like, no, no, Tony, I'm going to
15:42
Speaker 1: have to hold you for trial. Man, I need you
15:44
Speaker 1: to come down. I said, all right, all right, I said,
15:46
Speaker 1: I'll be down a little while. I said, I'm going
15:47
Speaker 1: to take my wife over to my mother's. I'm gonna
15:50
Speaker 1: let him know what's going on, you know. So I said,
15:52
Speaker 1: I don't want them to see on the news that
15:54
Speaker 1: you rescue for this stuff, you know. And he said, yeah, okay,
15:57
Speaker 1: no problem, just come on down later on this afternoon.
16:00
Speaker 1: Up the phone. I'm thinking, you know, I never heard
16:02
Speaker 1: no shit like this. This is bullshit. So I walk outside.
16:06
Speaker 1: I figured the cops are out there. I just don't
16:08
Speaker 1: want him busting through the door. I got my daughters
16:10
Speaker 1: in their little bass of that there on the couch right.
16:13
Speaker 1: My wife's in the shower. You know, if I really
16:15
Speaker 1: am going to be on trial for some of a
16:17
Speaker 1: crime like this, they got to be standing right out
16:19
Speaker 1: there with shotgun. So I walk outside and there's nothing, nothing, nobody.
16:25
Speaker 1: I stand there for a few minutes. Nothing. I go
16:28
Speaker 1: back in the house, call a lawyer up and I
16:30
Speaker 1: asked him to check out it. He called me back
16:32
Speaker 1: and he said, wow, Tony, he said, you've been indicted. Man,
16:37
Speaker 1: you're facing the electric chair. He asked me what I
16:40
Speaker 1: was going to do. I said, well, you know, I'm
16:41
Speaker 1: going on my mom's like I told him, And I'll
16:43
Speaker 1: be down later on this afternoon, you know. I mean,
16:46
Speaker 1: this was at noon or twelve thirty when he calls
16:49
Speaker 1: me on the phone and arrests me for this terrible crime.
16:52
Speaker 1: I mean, it's a terrible crime. There's no offenser. But
16:54
Speaker 1: and he arrested me on the telephone. If you'll tell me,
16:57
Speaker 1: I take my time coming down me so you know,
17:00
Speaker 1: he's only six weeks old. I kissed my daughter, I
17:02
Speaker 1: kissed my wife. Tell my brother Vince, you know, catch
17:05
Speaker 1: you guys later, you know. And I went down to
17:08
Speaker 1: the jail probably about four point thirty.
17:11
Speaker 3: I mean, I got to believe they knew that you
17:14
Speaker 3: weren't really the rapist and murderer. Otherwise is the way
17:17
Speaker 3: they behave this way.
17:19
Speaker 1: I'll tell you what he said. I get down there,
17:22
Speaker 1: we go in this room, and I said, look, man,
17:25
Speaker 1: why are you doing this to me? He said, I'm
17:27
Speaker 1: not the one doing it. The prosecutor is the one
17:29
Speaker 1: that got the indictment against you. I said, but what
17:33
Speaker 1: I mean, man, And he says, and this is for sure,
17:37
Speaker 1: never forget this. He said, well, Tony, and he said,
17:40
Speaker 1: you know this is a high profile case, and there's
17:43
Speaker 1: a lot of pressure on us to get somebody. You know,
17:46
Speaker 1: all your alibi witnesses are drunks, and you look worse
17:49
Speaker 1: than anybody else. I'm like, wow, man, that ain't right,
17:53
Speaker 1: you know. He said, well, you know, he said, make
17:55
Speaker 1: sure you demand a speed trial. They got to do
17:57
Speaker 1: it with the ninety days. And I said, yeah, yeah,
18:00
Speaker 1: what are you going to do about your business? I said,
18:02
Speaker 1: trying to get it going? He says, you know, he
18:04
Speaker 1: said they're going to drag your name through the mud.
18:06
Speaker 1: And he said, you're not going to be able to
18:07
Speaker 1: get work in his tile and believe I said, well,
18:09
Speaker 1: maybe I go out to the suburbs. You know, that's
18:11
Speaker 1: where my involves lived. I mean, this is the guy
18:14
Speaker 1: who's locking me up on a charge of burglary, rape
18:18
Speaker 1: and murder, the same one who arrested me on the telephone.
18:35
Speaker 3: The only evidence against him was purely circumstantial, definitely wrong place,
18:40
Speaker 3: wrong time, he was painting the house. There was no
18:42
Speaker 3: denying that he knew the victim. But that doesn't make
18:44
Speaker 3: him guilty. A lot of people were in contact with
18:46
Speaker 3: her that same day. That's not a basis on which
18:49
Speaker 3: to convict somebody and sentence them to death, especially when
18:53
Speaker 3: none of the rest of the evidence matched up. And
18:55
Speaker 3: then the trial itself Dale, Now this is before you
18:59
Speaker 3: got involved. It's so long ago. When did the trial
19:02
Speaker 3: take place?
19:02
Speaker 4: December of nineteen eighty four, And the investigation that the
19:07
Speaker 4: two lawyers representing Tony did to prepare for trial wasn't
19:12
Speaker 4: as robust as it should have been. They went out
19:15
Speaker 4: and spoke to a few of Tony's witnesses, but they
19:18
Speaker 4: did not hire experts to look at the forensics. They
19:23
Speaker 4: did not interview the detectives. They had a very cursory
19:27
Speaker 4: interview with the people at the coroner's office.
19:31
Speaker 3: So without a thorough investigation, the prosecution was able to
19:35
Speaker 3: pull a number of dirty tricks. And this tangled web
19:39
Speaker 3: started really back when the autopsy was conducted.
19:42
Speaker 1: Right, Yes, there.
19:44
Speaker 4: Was a piece of hair that was found between her
19:47
Speaker 4: bound hands behind her back, and that hair could only
19:51
Speaker 4: be placed there by the person who assaulted mary Anne Flynn.
19:56
Speaker 4: The hair was tested, it wasn't Tony's hair, it wasn't
20:00
Speaker 4: mary Anne's hair, So the state had to come up
20:02
Speaker 4: with an explanation for how the hair got there. The
20:06
Speaker 4: evidence that the state presented a trial was that the
20:09
Speaker 4: hair was lying on her open hand, which supported the
20:13
Speaker 4: theory that the hair fell from someone's head, a Morgue
20:17
Speaker 4: attendant one of the personnel at the crime scene. So
20:21
Speaker 4: what the state argued to the jury was disregard the hair.
20:25
Speaker 4: What we found out later is that the hair, as
20:29
Speaker 4: I noted, was found between her bound hands behind her back.
20:33
Speaker 3: And this is just a beginning. I mean, they even
20:37
Speaker 3: planted that scene in opening statements. But there's so much
20:40
Speaker 3: more here to unpack, so go ahead, Dale.
20:43
Speaker 4: At trial, the state put on evidence that it swabbed
20:47
Speaker 4: the victim's vagina, and that swab contained fluid deposited by
20:52
Speaker 4: someone who had blood Type A and was a secretor,
20:56
Speaker 4: and someone who is a secretor secretes antigens into their
21:01
Speaker 4: bodily fluids. And the state put on evidence that Tony
21:06
Speaker 4: was a Type A secretor, so he was likely to
21:09
Speaker 4: be the perpetrator. What the state withheld was that Miss
21:13
Speaker 4: Flynn was also an A type secretor, so that meant
21:18
Speaker 4: that the fluids in Miss Flynn's body were just as
21:22
Speaker 4: likely her own. Now that is the only physical evidence
21:25
Speaker 4: that the state put on at trial. All the rest
21:28
Speaker 4: of the evidence was circumstantial.
21:30
Speaker 3: So the detective gave misleading Well that's not even a
21:33
Speaker 3: strong enough way of putting it, but they gave misleading testimony.
21:38
Speaker 3: During the trial, right.
21:39
Speaker 4: The prosecutor asks Detective Zalor, did Tony ever make a
21:43
Speaker 4: statement to you? And he said, Tony said to me,
21:46
Speaker 4: when I'm indicted, can you let me know? The defense
21:50
Speaker 4: asked for copies of notes. Detective said he didn't have
21:54
Speaker 4: any notes at the time. The defense was not entitled
21:58
Speaker 4: to the police reports. The defense lawyer made an objection.
22:02
Speaker 4: The judge ordered the prosecutor to review the police reports.
22:06
Speaker 4: Prosecutor did so and said, there is no report of
22:10
Speaker 4: any oral statement that Tony made to detective Zalor. Well,
22:14
Speaker 4: a couple of years later, when we made a Public
22:17
Speaker 4: Records Act request, we found that type statement by Detective
22:22
Speaker 4: Zalor where he wrote Tony said if I'm indicted, that
22:27
Speaker 4: is critical? And why is when important? Because during the
22:32
Speaker 4: closing arguments the prosecutor hammered on those words and said,
22:39
Speaker 4: this proves he had a guilty mind.
22:43
Speaker 3: If I'm indicted. When I'm indicted, it's actually kind of
22:48
Speaker 3: terrifying to think that the substitution of that one little
22:53
Speaker 3: word could have made such a huge difference in the
22:57
Speaker 3: outcome of this case. What was your say of things
23:01
Speaker 3: while the jury was deliberating.
23:03
Speaker 1: I totally expected to be found that guilty. I mean,
23:06
Speaker 1: I didn't do it, you know. I look, I did time.
23:11
Speaker 1: I copped out. I had aggravator robberts. I copped out.
23:14
Speaker 1: I went to clue that I did my time. Get
23:17
Speaker 1: you commit a crime, you make a deal. Man. In
23:19
Speaker 1: this case, there's no deal making here. I didn't do it.
23:23
Speaker 3: But they took whatever they could muster and whatever they
23:26
Speaker 3: could tide to tell their story, and the jury bought it.
23:31
Speaker 3: Lock Stock and Barrel. What was that moment like when
23:35
Speaker 3: they found you guilty?
23:36
Speaker 1: When their judge that guilty, I slammed my hand. It
23:41
Speaker 1: wasn't a conscious thing I did. It was just a reaction.
23:44
Speaker 1: I slammed my hand on the table and I said,
23:46
Speaker 1: that's bullshit. They pulled the jury and they were asking
23:50
Speaker 1: the jury, you know, is this your verdic conditioner called
23:52
Speaker 1: twelve of them, And as they're doing it, I kept saying, no, man,
23:56
Speaker 1: it's bullshit at any right, and.
23:58
Speaker 3: Dale, this is a laundry list crimes that he was
24:00
Speaker 3: convicted of.
24:02
Speaker 4: Tony was convicted of aggravated murder, aggravated burglary, two counts
24:07
Speaker 4: of rape. What's interesting about the rape counts is that
24:12
Speaker 4: they were carbon copy counts, meaning the state said count
24:17
Speaker 4: one of rape vaginal and or oral rape, second count
24:21
Speaker 4: of rape vaginal and or oral rape. So we don't
24:26
Speaker 4: have a distinction between the vaginal rape and the oral rape.
24:32
Speaker 4: And this becomes critical later on in post conviction litigation.
24:37
Speaker 3: Tony was sentenced to fifteen to twenty five years for
24:39
Speaker 3: the burglary and rape counts for a summer of forty
24:42
Speaker 3: five to seventy five years, and he received a death
24:45
Speaker 3: sentence for the murder charge. Can you talk about I
24:48
Speaker 3: mean death row, It's it conjures up really everyone's worst nightmares.
24:53
Speaker 1: Back then. They took me straight to Lucasville Penitentiary where
24:56
Speaker 1: death row was, and they put me right there in
24:58
Speaker 1: the cell on death row. Death row is not like
25:01
Speaker 1: being in prison. It's a whole different expanse ten times
25:04
Speaker 1: worse than prison. You know, I'm not going to the
25:07
Speaker 1: pro board and going home next week because I stole
25:09
Speaker 1: a car. These people are going to kill me if
25:12
Speaker 1: I don't get back out. In nineteen eighty nine, the
25:29
Speaker 1: federal court on a rape pace in Florida ruled that
25:33
Speaker 1: DNA evidence is sound scientific evidence and can be used
25:39
Speaker 1: to show a person committed a crime or not. Immediately.
25:43
Speaker 1: Tom Shaw has seen my trial lawyer fil devotion requesting
25:46
Speaker 1: DNA testing.
25:47
Speaker 3: Then nineteen eighty nine and attorney for Tony requested files
25:50
Speaker 3: from the Flynn autopsy. At that time, the vaginal and
25:54
Speaker 3: oral slides could not be located. They were assumed to
25:57
Speaker 3: have been destroyed. But nineteen ninety one is when you
26:02
Speaker 3: got involved there, right, And this is when the three
26:05
Speaker 3: slides were magically located.
26:07
Speaker 4: In nineteen ninety one, Forensic Science Associates, at the request
26:12
Speaker 4: of the Cayahaga County Corner's Office, conducted DNA testing. I
26:17
Speaker 4: found out about the three slides in nineteen ninety two
26:21
Speaker 4: when I got a phone call from the county prosecutor saying,
26:25
Speaker 4: we found these three slides. Now we would like some
26:29
Speaker 4: of Tony's blood to compare it to the slides. These
26:32
Speaker 4: are the same people who withheld evidence. This is the
26:36
Speaker 4: same county where the coroner's office was a sloppy lab.
26:41
Speaker 4: This is the same police department where the detective lied
26:46
Speaker 4: on the stand. We need to be damn sure we
26:49
Speaker 4: know where these slides came from. When we start digging
26:53
Speaker 4: into it, what we learned is that all slides are
26:57
Speaker 4: marked with the county corner case number. In Tony's case,
27:01
Speaker 4: it was one nine zero seven three seven something like that.
27:05
Speaker 4: There was one slide that was marked L nine zero,
27:10
Speaker 4: so it was misnumbered, and that slide turned out to
27:15
Speaker 4: be an important slide. And I resisted providing a DNA
27:20
Speaker 4: sample from Tony for testing because I was concerned about
27:24
Speaker 4: the chain of custody of those slides.
27:27
Speaker 3: And there's a bit of a twisted history about these
27:30
Speaker 3: three slides. So KaiA Hogan County first denied the existence
27:33
Speaker 3: of these three slides in nineteen eighty nine. Then in
27:36
Speaker 3: nineteen ninety one they magically find the slides, the missing slides.
27:40
Speaker 3: There's three of them. Two are marked properly as Dale mentioned,
27:44
Speaker 3: one vaginal and one oral, but the other one is
27:47
Speaker 3: supposed to be an oral slide and is not marked properly,
27:51
Speaker 3: the L nine zero slide that Dale mentioned. In nineteen
27:54
Speaker 3: ninety one, a lab called Forensic Science Associates was tasked
27:58
Speaker 3: with developing DNA profiles from all three slides, and with
28:02
Speaker 3: the available technology, and methods, was only able to develop
28:06
Speaker 3: a testable male DNA profile from the oral slide marked
28:10
Speaker 3: L nine zero. Now, Kuyahoga County had Tony's blood, hair,
28:14
Speaker 3: and saliva samples that he had provided during the investigation,
28:17
Speaker 3: but for whatever reason, those samples were not available to
28:22
Speaker 3: FSA for comparison. Dale rightfully had serious concerns about the
28:26
Speaker 3: chain of custody and so he denied access to a
28:29
Speaker 3: new DNA sample from Tony. So the L nine zero
28:33
Speaker 3: slide sat in a freezer until two thousand and six,
28:36
Speaker 3: when FSA used the most current technology and methods to
28:41
Speaker 3: test it, and in two thousand and seven, a federal
28:44
Speaker 3: district court ordered that Tony provide a sample for comparison
28:48
Speaker 3: to L nine zero. So a report is generated and
28:52
Speaker 3: the prosecution says that Tony couldn't be excluded as a contributor.
28:56
Speaker 3: But for some strange reason, this report never makes it
29:00
Speaker 3: into evidence. And you'd think, with how furtherly the state
29:04
Speaker 3: is trying to hang onto the conviction, that a report
29:07
Speaker 3: like that would have been the centerpiece of post conviction.
29:10
Speaker 4: The state never presented those reports to either the federal
29:16
Speaker 4: court or the state court. During the fourth post conviction hearing.
29:21
Speaker 4: What the state did was simply waived around these reports,
29:26
Speaker 4: but they never offered those reports into evidence. When we
29:30
Speaker 4: tried to take depositions of the folks from FSA who
29:35
Speaker 4: did the testing and generated the reports, the state prevented
29:39
Speaker 4: us from doing so and told the judge that they
29:42
Speaker 4: were not going to present these reports. So all of
29:46
Speaker 4: this information about this oral slide and whatever test results
29:52
Speaker 4: the state has has never been tested through the adversary process.
29:57
Speaker 4: None of the people who generated these documents have testified
30:02
Speaker 4: under oath, and they have not been subject to the
30:05
Speaker 4: rigorous scientific scrutiny before something like this is introduced into evidence.
30:12
Speaker 4: So bottom line, the oral slide is not evidence.
30:18
Speaker 3: If this was really something that could have hurt Tony,
30:21
Speaker 3: I'm gonna speculate here, but I mean, it seems pretty
30:24
Speaker 3: obvious they would have admitted it as evidence. They have
30:26
Speaker 3: had so many opportunities to do so, but they've declined
30:30
Speaker 3: every single time. So that brings us to two thousand
30:33
Speaker 3: and nine, when Dale and the team found out that
30:36
Speaker 3: back in two thousand, an assistant prosecutor requested that the
30:39
Speaker 3: Cayahaga County Coroner's office test the two remaining properly labeled
30:44
Speaker 3: vaginal and oral slides that had previously not yielded a
30:48
Speaker 3: DNA profile.
30:49
Speaker 4: We were preparing for a hearing in the Habeas Corpus case,
30:54
Speaker 4: and the judge allowed for some discovery and one of
30:58
Speaker 4: the people that we deposed was the corner from Cayahaga County.
31:03
Speaker 4: She brought documents that we had subpoenaed and we first
31:07
Speaker 4: learned that in two thousand, the state did another test,
31:11
Speaker 4: got results, didn't share those results with us, And in
31:15
Speaker 4: twenty twelve we went back to state court for the
31:19
Speaker 4: fourth time and had a hearing on that evidence that
31:23
Speaker 4: was tested in two thousand.
31:26
Speaker 3: So twenty fourteen, the defense expert, doctor Rick Staub, was
31:31
Speaker 3: able to prove conclusively that Tony could be excluded as
31:34
Speaker 3: a contributor to the vaginal slide and that two unknown
31:38
Speaker 3: male contributors were in fact present. So Tony was acquitted
31:42
Speaker 3: of the vaginal rape charge quitted and the second count
31:46
Speaker 3: of rape was dismissed on the grounds that it lacked specificity.
31:50
Speaker 1: And it was one year later, March sixth, twenty sixteen,
31:55
Speaker 1: when your appeals court three to zero they all three agreed, yes,
32:00
Speaker 1: it ain't proved I was innocent and I got out
32:02
Speaker 1: that day.
32:03
Speaker 3: Okay, go to that moment if you can.
32:05
Speaker 1: Oh man, I've always been waiting for this moment to happen.
32:10
Speaker 1: And my daughter, Elena, the one that I kissed goodbye
32:14
Speaker 1: when I went and turned myself in. She came out
32:16
Speaker 1: with two of my grandchildren, my granddaughter Raina and grandson Navan.
32:21
Speaker 1: Oh Man, first time I got to see them in person.
32:24
Speaker 1: You know, I called my well, my wife now Beth.
32:27
Speaker 1: I got a hold of her. I let her know
32:28
Speaker 1: I'm I'm home.
32:29
Speaker 3: So tell us about your wife, Beth? How did that
32:32
Speaker 3: all develop?
32:33
Speaker 1: I've known her like twenty some years, you know, she
32:36
Speaker 1: was visiting me in prison and everything. I mean, I've
32:38
Speaker 1: been in love with that woman for many years. I mean,
32:41
Speaker 1: I knew that I was going to get out someday,
32:45
Speaker 1: and we had, you know, decided when I got out,
32:48
Speaker 1: then we'll see if we're going to have a relationship,
32:50
Speaker 1: you know, and if we can have one, because you know,
32:53
Speaker 1: I'm like a lab experiment all the years, like them.
32:58
Speaker 1: So her and the kids would come over several times
33:02
Speaker 1: a week, you know. When I first got home. Finally,
33:05
Speaker 1: I said, I don't know what we're waiting for. I said, babe,
33:07
Speaker 1: you know I love you. And she's like, you know,
33:09
Speaker 1: I love you too, And I said, so, you know
33:11
Speaker 1: we're old. What are we waiting for. Let's get married. Man.
33:14
Speaker 1: I just spent my life locked up. I want to
33:16
Speaker 1: live and she's like, okay, then I got two granddaughters
33:19
Speaker 1: that you're going to have to raise. And I'm like, Mabe,
33:22
Speaker 1: I got no problem. I didn't get a chance to
33:24
Speaker 1: raise my kids. Now I'm getting a second chance at life.
33:27
Speaker 3: I'm sure everyone's wondering, Okay, so why in God's name
33:31
Speaker 3: is he calling us from death row?
33:33
Speaker 4: Well, the state appealed to the Ohio Supreme Court. What
33:37
Speaker 4: the Ohio Supreme Court determined was that under the Ohio
33:42
Speaker 4: DNA Testing Statute that in order for a death row
33:47
Speaker 4: prisoner to get an evidentiary hearing on the issue of DNA,
33:53
Speaker 4: the prisoner has to make the request for the testing.
33:58
Speaker 4: What happened here is the state did the testing in
34:02
Speaker 4: two thousand, kept it from us until two thousand and nine,
34:06
Speaker 4: and in twenty twelve through twenty fourteen, we present evidence
34:11
Speaker 4: that Tony is excluded as the person who committed the
34:15
Speaker 4: rape in a single assailant homicide. And what the Ohio
34:20
Speaker 4: Supreme Court did was it put form over substance. Because
34:26
Speaker 4: Tony did not request the DNA testing, he was not
34:30
Speaker 4: entitled to that hearing. So, in the Court's view, that
34:34
Speaker 4: hearing where he was exonerated of the rape charges never existed.
34:39
Speaker 3: So you from your death Row cell were required to
34:44
Speaker 3: have requested the DNA that the state had insisted didn't exist.
34:50
Speaker 1: That blew my mind. That next Friday, my wife she
34:54
Speaker 1: asked me to make snac and cheese. My other stepdaughter
34:57
Speaker 1: she just moved into a place she had no washer
34:59
Speaker 1: and dryer. I went. I got to Washington dryer. Now
35:02
Speaker 1: I gotta go pick the grand babies that were raising
35:04
Speaker 1: Chloe and the Jay and I got to go pick
35:06
Speaker 1: them up from school. I got to take the dog
35:08
Speaker 1: to the vet. I gotta wash your dryer in the
35:10
Speaker 1: back of the pickup truck. I'm doing normal stuff that
35:13
Speaker 1: people do out there, you know, in life. You know,
35:16
Speaker 1: I'm loving every minute of it. And I get out
35:18
Speaker 1: of the truck and I'm heading to the porch, and
35:20
Speaker 1: here come these six cars man Us Marshals jump out,
35:25
Speaker 1: Highway patrol and Akron police. I went from my front
35:28
Speaker 1: yard to death Row, just like that. Man, no facts change,
35:33
Speaker 1: no evidence change, nothing changed. You don't get off death
35:37
Speaker 1: row and go home for nothing. It's like I'm in
35:42
Speaker 1: the Twilight zone, man, you know. I mean I wake
35:44
Speaker 1: up every day and it's like, Wow, I can't I
35:47
Speaker 1: just can't hardly understand what I'm doing here.
35:52
Speaker 3: Man, Tony, I can only say that this will not stand.
35:57
Speaker 3: We will not allow this to stand. We're going to
35:59
Speaker 3: just grow this movement and we're going to find a
36:02
Speaker 3: way to help your team get you justice.
36:05
Speaker 1: Yeah. Law professor at Georgetown, Mark Howard, and three of
36:09
Speaker 1: his students, they got interested in my case. They made
36:12
Speaker 1: a documentary, and then they set up a website. I
36:15
Speaker 1: guess they have a petition.
36:16
Speaker 3: Which is Justice for a Panovich dot com. Please go
36:20
Speaker 3: visit the website when there's a petition on the page,
36:23
Speaker 3: and there will be a link to it in our
36:25
Speaker 3: episode bio. So please go there as well and shout
36:29
Speaker 3: out to the students for their great work. So it's
36:32
Speaker 3: now time for us to turn to the closing of
36:34
Speaker 3: the show. This is the part of the show where,
36:37
Speaker 3: first of all, thank our distinguished guests, Dale Base, Federal
36:42
Speaker 3: Public Defender Advocate Extraordinaire Tony, thank you for being here
36:48
Speaker 3: with us. Hang in there, buddy. We're going to bring
36:50
Speaker 3: you home. And now I'm going to turn my microphone off,
36:54
Speaker 3: kick back, close my eyes and listen. Dale you first,
36:58
Speaker 3: and then Tony.
37:00
Speaker 4: Thank you, Jason. It's been almost thirty six years since
37:04
Speaker 4: Tony was sentenced to death. Since then, as his case
37:08
Speaker 4: moved through the levels of a pellet review, evidence that
37:12
Speaker 4: the state withheld a trial began to seep out, the
37:16
Speaker 4: secretor's status of the victim, other suspects, lies by police
37:21
Speaker 4: and prosecutors uncovered. The problem was and still is that
37:26
Speaker 4: this case, like all death penalty cases, moved through the system,
37:30
Speaker 4: the courts put form over substance in decline to look
37:34
Speaker 4: at the merits of the claims. What we have here
37:37
Speaker 4: is a wrongful conviction. How do we know that? It's
37:41
Speaker 4: because Tony is excluded from a rape in a case
37:46
Speaker 4: where the state's theory is that there was a single assailant.
37:49
Speaker 4: This doesn't make sense to me as a lawyer, and
37:52
Speaker 4: may not make sense, but people need to understand that
37:56
Speaker 4: the system is constructed this way. The system needs to
37:59
Speaker 4: be fixed and we need to right this wrong. In
38:02
Speaker 4: Tony's case, The team that has worked on this case
38:07
Speaker 4: over the years, from my office, from Mark Devan's office,
38:11
Speaker 4: from the law firm of Krol and Mooring, We're not
38:14
Speaker 4: going to give up.
38:15
Speaker 3: Tony over to you.
38:17
Speaker 1: First of all, Jason, I want to thank you for
38:20
Speaker 1: having me on your podcast and for giving me this
38:23
Speaker 1: opportunity to tell my story. From the very beginning, I
38:27
Speaker 1: said I was innocent. I didn't commit this crime. I
38:30
Speaker 1: had no problem cooperating with the cops, giving them my hair,
38:33
Speaker 1: blood saliva, answering all their questions. I'm innocent.
38:37
Speaker 6: Come on.
38:39
Speaker 1: Here I am. Thirty six years later, after being sent home,
38:43
Speaker 1: being found innocent and sent home, I'm back on death
38:47
Speaker 1: row on a technicality, amazing as it is, and I'm
38:51
Speaker 1: still innocent. I didn't do this. All I want is
38:54
Speaker 1: my day in court. That's it. Just what are they
38:58
Speaker 1: afraid of? Let get a jury see all the evidence,
39:01
Speaker 1: you know, and I'm confident. I have no doubt in
39:03
Speaker 1: my mind that they'll find me not guilty. There's no
39:06
Speaker 1: doubt because I didn't commit this crime, and I think
39:09
Speaker 1: the evidence of faction. I don't know what I can
39:12
Speaker 1: say or do to convince people of my innocence. You know,
39:16
Speaker 1: I've been saying it for years. Just look at the evidence,
39:19
Speaker 1: look at the facts, and again I say, I appreciate
39:24
Speaker 1: having this opportunity, and Jason, you're doing a good job
39:27
Speaker 1: here for society, and I appreciate everything that you're doing,
39:31
Speaker 1: and I really appreciate what you're doing for me.
39:40
Speaker 3: Thank you for listening to Wrongful Conviction. You can listen
39:43
Speaker 3: to this and all the Lava for Good podcasts one
39:45
Speaker 3: week early and ad free by subscribing to Lava for
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Speaker 3: Good Plus on Apple Podcasts. I want to thank our
39:51
Speaker 3: production team, Connor Hall and Kathleen Fink, as well as
39:54
Speaker 3: my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Cliber.
39:58
Speaker 3: The music in this production was supplied by three time
40:00
Speaker 3: OSCAR nominated composer Jay Ralph. Be sure to follow us
40:03
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40:06
Speaker 3: at Wrongful Conviction. You can also follow me on Instagram
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40:18
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40:24
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