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#187 Jason Flom with Anthony Apanovitch · Wrongful Conviction

0:02
Speaker 1: It was the summer of nineteen eighty four. Tony I.
0:05
Speaker 1: Panovitch was in the process of building his house painting
0:07
Speaker 1: business on the west side of Cleveland. On August twenty third,
0:11
Speaker 1: a woman named Mary Anne Flynn was beaten and strangled
0:15
Speaker 1: to death. Authorities collected seamen from her body. Police soon
0:20
Speaker 1: identified plenty of likely suspects, including a violent ex boyfriend,
0:24
Speaker 1: an ex tenant who had been accused of rape, and
0:26
Speaker 1: a few other men who had keys to her house,
0:28
Speaker 1: as well as Tonya Panovitch, who had done some painting
0:31
Speaker 1: for her earlier that summer, but Tony's whereabouts were entirely
0:35
Speaker 1: accounted for. On the night of her murder, Tony was
0:38
Speaker 1: perhaps too cooperative with police, refusing a lawyer, answering all
0:42
Speaker 1: their questions, and even voluntarily giving up hair, blood, and
0:46
Speaker 1: saliva samples. He happened to have the same blood type
0:49
Speaker 1: as fluis found at the scene, but the state presented
0:52
Speaker 1: that piece of evidence without mentioning that Miss Flynn had
0:55
Speaker 1: that exact same blood type. The state hit evidence that
0:59
Speaker 1: Detective life I do understand and in nineteen eighty four,
1:02
Speaker 1: without DNA testing available to prove his innocence, Tony would
1:06
Speaker 1: have to wait for that scientific advancement to free him
1:09
Speaker 1: from his death sentence after thirty two years, but remarkably,
1:14
Speaker 1: his time on death row didn't end there. This is
1:18
Speaker 1: Wrongful Conviction with Jason Flamm. Welcome back to Wrongful Conviction
1:35
Speaker 1: with Jason Flamm, and soon you'll be hearing the subject
1:38
Speaker 1: of this episode, a man named Anthony Ipanovich, calling in
1:43
Speaker 1: from death row in Ohio, where he has been for
1:47
Speaker 1: the better part of four decades for a crime he
1:49
Speaker 1: didn't commit. With us on the show today is Dale Base,
1:53
Speaker 1: a federal public defender who has been the lead lawyer
1:57
Speaker 1: and staunch advocate for miss thank A Podovich since nineteen
2:02
Speaker 1: ninety one, probably before some of you were born, that's
2:04
Speaker 1: how low he's been working on this case. So Dale,
2:06
Speaker 1: welcome back to Wrongful Conviction.
2:08
Speaker 2: Thank you, Jason, it's good to be back.
2:11
Speaker 3: Hello. This is a prepaid debit call from Tony, an
2:16
Speaker 3: inmate at the Chillacoffee Correctional Institution. To accept this call,
2:20
Speaker 3: Pres zero, thank you for using gtlllt.
2:25
Speaker 1: Hey, Tony, I'm happy to have you here with us,
2:28
Speaker 1: but obviously I'm really sorry that it's under these circumstances.
2:32
Speaker 3: All right, Thanks Jason, I appreciate that. I appreciate this
2:35
Speaker 3: opportunity to tell my story.
2:38
Speaker 1: Now, Tony, I want to go back to before any
2:41
Speaker 1: of this happened. You grew up in Ohio, right, Oh, yeah.
2:44
Speaker 3: Yeah, I grew up on the east side of Cleveland.
2:48
Speaker 3: You quit going to school in about the eighth grade.
2:51
Speaker 3: I just started working when I was twelve years old.
2:53
Speaker 3: I like construction work, though I like working outside. I
2:56
Speaker 3: was a truck driver for about five years. Then I
2:59
Speaker 3: was trying to get a paying business started because I
3:01
Speaker 3: figured that, you know, the summer months, I could work
3:03
Speaker 3: outside painting, and then in the winter months I would
3:05
Speaker 3: be able to drive truck.
3:07
Speaker 1: And so this brings us to the summer of nineteen
3:09
Speaker 1: eighty four. Two neighbors have both hired you to do
3:13
Speaker 1: some painting, Mary Ann Flynn and the guy that lived
3:15
Speaker 1: across the street for her. You painted the outside bottom
3:19
Speaker 1: half of Miss Flynn's house. Now she intended to paint
3:22
Speaker 1: her window frames herself, and then you started working across
3:25
Speaker 1: the street painting her neighbor's entire house. And that brings
3:28
Speaker 1: us up to August twenty third, nineteen eighty four. You
3:32
Speaker 1: noticed that she hadn't gotten to painting the windows yet
3:34
Speaker 1: and tried to get a little more business for yourself.
3:37
Speaker 3: So when I seen her, I walked over. I asked
3:39
Speaker 3: her if she wasn't going to be able to get
3:40
Speaker 3: to those frames that I said she wanted, I could
3:43
Speaker 3: get it done, you know, because the weather's changing. She said, well,
3:46
Speaker 3: she'd let me know. I think I told her it
3:48
Speaker 3: was going to be like sixty bucks or something to
3:50
Speaker 3: paint them. So that was the last time I had
3:52
Speaker 3: seen her or talked to her. It was around four thirty. Well,
3:54
Speaker 3: went back across the street, we finished up the job,
3:57
Speaker 3: then then we headed to the bar. That's what I
3:59
Speaker 3: did the rest of the night, you know, was barhopping
4:02
Speaker 3: in the neighborhood.
4:03
Speaker 1: So later that night, mary Ann Flynn was raped and
4:07
Speaker 1: brutally murdered in her bedroom. She'd been strangled and severely beaten,
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Speaker 1: and semen was found and collected from both her mouth
4:15
Speaker 1: and her vagina.
4:16
Speaker 2: Yes, so mary Anne's body was transported to the County
4:21
Speaker 2: Coroner's office in Cyahoga County, Okay.
4:24
Speaker 1: And I got to stop for a second because Kyahaga
4:28
Speaker 1: County was notorious as one of, if not the most corrupt, disorganized,
4:34
Speaker 1: disfunctional crime labs in the entire country at that time.
4:38
Speaker 1: The police, prosecutors, and the Corner's office have all been
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Speaker 1: the subject of news articles, scandals, podcasts for being sloppy
4:47
Speaker 1: or outright corrupt.
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Speaker 2: And let me give you a couple of examples. Liliana
4:52
Speaker 2: Segura with The Intercept did some great reporting that documented
4:56
Speaker 2: a pattern of misconduct in the Cayahaga County prosecutor Office.
5:00
Speaker 2: And in twenty eighteen, season three of the podcast serial
5:05
Speaker 2: feature the Cleveland Police Department, the Prosecutor's office, and the
5:09
Speaker 2: courts in Cayahaga County as being somewhat corrupt, and the
5:14
Speaker 2: folks at the Cayahga County Coroner's Office admitted that they
5:19
Speaker 2: ran a sloppy lab. So you have all that going
5:23
Speaker 2: on during the time that Tony's case was making its
5:26
Speaker 2: way through the court system in Cayahoga County.
5:30
Speaker 1: And of course this crime lab's dubious work will become
5:34
Speaker 1: relevant later. But first, Tony, let's get back to the
5:37
Speaker 1: investigation of your alibi. You had gone bar hopping. The
5:41
Speaker 1: bars you went to that night, you were a bit
5:43
Speaker 1: of a regular at and your whereabouts were accounted for
5:47
Speaker 1: by the people who saw you all through the night.
5:49
Speaker 3: Oh yeah, either people I frink withed these bars, and
5:52
Speaker 3: these people knew who I was. And as far as
5:54
Speaker 3: them telling the cops that I was there at the bar,
5:58
Speaker 3: that was no problem as far as my I mean,
6:01
Speaker 3: I was where I said I was, and then when
6:03
Speaker 3: I left one bar, went to the next one within
6:06
Speaker 3: the time that it would have taken normally to get
6:08
Speaker 3: from A to B. No hour delays in between or
6:12
Speaker 3: nothing like that. There was no skipping. So wherever I
6:15
Speaker 3: was that night, whatever bar I went to, whatever time
6:19
Speaker 3: I got there and left, they know that was all covered.
6:22
Speaker 1: So how did you get pulled into this?
6:24
Speaker 3: Well, I'll tell you, Jason. Here's what the homicide detectives
6:28
Speaker 3: told me. My name came up in the investigation as
6:31
Speaker 3: they were canvassing the neighborhood, and I go downtown with
6:35
Speaker 3: them and they start asking me questions and they tell me, well,
6:38
Speaker 3: we're going to have to hold you. We want to
6:40
Speaker 3: check your alibi. They kept me in there that night.
6:43
Speaker 3: Next day they wondered if I would mind giving them
6:46
Speaker 3: a blood sample. I'm like, yeah, no, I got no
6:48
Speaker 3: problem with that. They take my blood, they want to
6:51
Speaker 3: take some of my hair and my saliva. So I
6:53
Speaker 3: give them all that, and they're asking me if you
6:55
Speaker 3: want a lawyer. You know, before we asked that I
6:58
Speaker 3: don't need no loader. Man. You know, I'm cooperating one
7:01
Speaker 3: hundred percent because I didn't do it. Then they'd asked,
7:04
Speaker 3: can we go to your house and look at your clothes?
7:06
Speaker 3: I'm like, yeah, okay, cool. See I'm not too upset
7:10
Speaker 3: about why they are doing this because I am an Xican.
7:12
Speaker 3: I did four years or one month for armed robbery.
7:15
Speaker 3: I had it coming. I did my time, you know.
7:17
Speaker 3: And they told me that right off the jump. Being
7:19
Speaker 3: an x con made him look at me a little
7:22
Speaker 3: harder than you know, average Joe. I say, okay, cool.
7:25
Speaker 3: So they went to my house to get most of
7:27
Speaker 3: my clothes, and they keep me in jail another night.
7:30
Speaker 3: Well the next day, by now, I'm pissed off. I'm
7:33
Speaker 3: talking to Detective Zalor. I said, that's it. I'm ready
7:35
Speaker 3: to go. He said, well, you know, we don't have
7:37
Speaker 3: to charge you. We can hold you so many days.
7:39
Speaker 3: You know, it was up that day. I said, this
7:41
Speaker 3: is it, man, I'm going home. He said, well, let
7:45
Speaker 3: me come back this afternoon. He said, I'm waiting on
7:47
Speaker 3: the lab report. Anyhow, he come back about three three
7:49
Speaker 3: thirty got me out of the south So I leave,
7:52
Speaker 3: I go home. I'm not thinking too much of it.
7:54
Speaker 3: I'm just wondering when I'm going to get my clothes back,
7:57
Speaker 3: because when I get home, I see they got most
7:59
Speaker 3: of them gone. Maybe five days later, I had a
8:02
Speaker 3: ticket that I had gotten a couple of weeks earlier
8:04
Speaker 3: that I had to go to court for. So I
8:06
Speaker 3: called down to Detective Zalor. I say, listen, I'm gonna
8:09
Speaker 3: be in court tomorrow. I want to come pick up
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Speaker 3: my clothes. He said, no problem. So when I go
8:13
Speaker 3: down to go to court, he tells me he wants
8:16
Speaker 3: me to come upstairs because he wanted the corner to
8:19
Speaker 3: take a look at me. They take me in the room.
8:21
Speaker 3: The corner comes in. They say, well, they want to
8:23
Speaker 3: look at my tenis okay? So I let her look.
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Speaker 3: She looks at it and says, no, this isn't it
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Speaker 3: and leaves the room.
8:31
Speaker 1: Wait wait, why, well I know what it is now.
8:35
Speaker 3: There was this guy named Ronnie Shelton, I know, he's
8:38
Speaker 3: called the West Side Rapist. He was going around raping
8:42
Speaker 3: women all over that area on the west side of Cleveland.
8:45
Speaker 3: At that time, and he had something wrong. I guess
8:49
Speaker 3: he had some kind of scabs and stuff on his
8:52
Speaker 3: dick that they wanted to see if I had on mine.
8:55
Speaker 3: And well, of course it wasn't me, so all.
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Speaker 1: Right, So continue was there anything else round about this
9:00
Speaker 1: contact with Zalor?
9:02
Speaker 3: I had called to ask about my clothes before I
9:06
Speaker 3: went down to the traffic ticket. Just before he hung up,
9:09
Speaker 3: he said, well, you know, Tony, you could still get
9:13
Speaker 3: indicted for this. So I said, if that happens, give
9:16
Speaker 3: me a call.
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Speaker 1: And that conversation comes up later at trial when Detective
9:21
Speaker 1: Sala gives it. Well, he gave a very misleading testimony.
9:25
Speaker 1: But for now there's this indictment threat looming. But you're
9:29
Speaker 1: not too worried because after all, your innocent weeks go
9:32
Speaker 1: by and nothing happens until you were house sitting for
9:36
Speaker 1: your in laws.
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Speaker 3: So this is like October. Second, I come out to shower,
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Speaker 3: my wife's in the shower. It's about noon. The phone rings,
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Speaker 3: Detective Salar, I need you to come down. I talk
9:48
Speaker 3: to I said, yeah, well, you know, I don't tell
9:50
Speaker 3: you everything. Man, I got no more to add. He's like, no, no, Tony,
9:54
Speaker 3: I'm going to have to hold you for trial. Man,
9:56
Speaker 3: I need you to come down. I said, all right,
9:58
Speaker 3: all right, I said, I'll be done on a wa
10:00
Speaker 3: I said, I'm going to take my wife over to
10:02
Speaker 3: my mother's. I'm gonna let them know what's going on,
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Speaker 3: you know. So I said, I don't want them to
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Speaker 3: see on the news that you rest me for this stuff,
10:08
Speaker 3: you know. And he said, yeah, okay, no problem, just
10:10
Speaker 3: come on down later on this afternoon. So I hang
10:12
Speaker 3: up the phone. I'm thinking, you know, I never heard
10:15
Speaker 3: no shit like this. This is bullshit. So I walk outside.
10:18
Speaker 3: I figured the cops are out there. I just don't
10:20
Speaker 3: want him busting through the door. I got my daughters
10:23
Speaker 3: in their little bass of that there on the couch right.
10:26
Speaker 3: My wife's in the shower. You know, if I really
10:28
Speaker 3: am going to be on trial for some of the
10:30
Speaker 3: crime like this, they got to be standing right out
10:32
Speaker 3: there with chatgun. So I walk outside and there's nothing, nothing, nobody.
10:38
Speaker 3: I stand there for a few minutes. Nothing. I go
10:41
Speaker 3: back in the house, call a lawyer up and I
10:43
Speaker 3: asked him to check out it. He called me back
10:45
Speaker 3: and he said, wow, Tony, he said, you've been indicted. Man,
10:49
Speaker 3: you're facing the electric chair. He asked me what I
10:53
Speaker 3: was going to do. I said, well, you know, I'm
10:54
Speaker 3: going on my mom's like I told him, And I'll
10:56
Speaker 3: be down later on this afternoon, you know. I mean,
10:59
Speaker 3: this was it noon or twelve thirty when he calls
11:01
Speaker 3: me on the phone and arrests me for this terrible crime.
11:05
Speaker 3: I mean, it's a terrible crime. There's no offenser. But
11:07
Speaker 3: and he arrested me on the telephone. If you'll tell me,
11:09
Speaker 3: I take my time coming down me. So you know,
11:12
Speaker 3: my baby's only six weeks old. I kissed my daughter,
11:15
Speaker 3: I kiss my wife. Tell my brother Vince, you know,
11:17
Speaker 3: catch you guys later, you know. And I went down
11:21
Speaker 3: to the jail, probably about four thirty.
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Speaker 1: I mean, I got to believe they knew that you
11:26
Speaker 1: weren't really the rapist and murderer. Otherwise is the way
11:30
Speaker 1: they behave this way, I'll tell.
11:32
Speaker 3: You what he said. I get down there, we go
11:35
Speaker 3: in this room and I said, look, man, why are
11:38
Speaker 3: you doing this to me? He said, I'm not the
11:40
Speaker 3: one doing it. The prosecutor is the one that got
11:42
Speaker 3: the indictment against you. I said, but what I mean, man,
11:46
Speaker 3: And he says, and this is for sure never forget this.
11:51
Speaker 3: He said, well, Tony, he said, you know, this is
11:53
Speaker 3: a high profile case and there's a lot of pressure
11:56
Speaker 3: on us to get somebody, you know, all your alibi.
12:00
Speaker 3: This is their drunks, and you look worse than anybody else.
12:03
Speaker 3: And I'm like, wow, man, that ain't right, you know.
12:06
Speaker 3: He said, well, you know, he said, make sure you
12:08
Speaker 3: demand a speedy trial. They got to do it within
12:10
Speaker 3: ninety days. I said, yeah, yeah. He said, what are
12:12
Speaker 3: you going to do about your business? I said, you're
12:15
Speaker 3: trying to get it going. He says, you know, he said,
12:17
Speaker 3: they're going to drag your name through the mud. And
12:18
Speaker 3: he said, you're not going to be able to get
12:20
Speaker 3: work in this town and cleeve and I said, well,
12:22
Speaker 3: maybe I'll go out to the suburbs, you know, because
12:24
Speaker 3: that's where my in law's living. I mean, this is
12:26
Speaker 3: the guy who's locking me up out of charge of burglary,
12:30
Speaker 3: rape and murder, the same one who arrests me on
12:33
Speaker 3: the telephone.
12:43
Speaker 1: This episode is brought to you by Stand Together. Stand
12:47
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12:50
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13:52
Speaker 1: its mission. The only evident him was purely circumstantial, definitely
14:03
Speaker 1: wrong place, wrong time, he was painting the house. There
14:05
Speaker 1: was no denying that he knew the victim, but that
14:07
Speaker 1: doesn't make him guilty. A lot of people were in
14:09
Speaker 1: contact with her that same day. That's not a basis
14:12
Speaker 1: on which to convict somebody and sentence them to death,
14:15
Speaker 1: especially when none of the rest of the evidence matched up.
14:19
Speaker 1: And then the trial itself Dale, Now this is before
14:22
Speaker 1: you got involved. It's so long ago. When did the
14:25
Speaker 1: trial take place?
14:26
Speaker 2: December of nineteen eighty four, And the investigation that the
14:31
Speaker 2: two lawyers representing Tony did to prepare for trial wasn't
14:36
Speaker 2: as robust as it should have been. They went out
14:38
Speaker 2: and spoke to a few of Tony's witnesses, but they
14:42
Speaker 2: did not hire experts to look at the forensics. They
14:46
Speaker 2: did not interview the detectives. They had a very cursory
14:51
Speaker 2: interview with the people at the coroner's office.
14:54
Speaker 1: So without a thorough investigation, the prosecution was able to
14:58
Speaker 1: pull a number of dirty tricks. And this tangled web
15:03
Speaker 1: started really back when the autopsy was conducted.
15:06
Speaker 2: Right, Yes, there was a piece of hair that was
15:09
Speaker 2: found between her bound hands behind her back, and that
15:13
Speaker 2: hair could only be placed there by the person who
15:18
Speaker 2: assaulted Mary Anne Flynn. The hair was tested, it wasn't
15:22
Speaker 2: Tony's hair, it wasn't mary Anne's hair, So the state
15:25
Speaker 2: had to come up with an explanation for how the
15:28
Speaker 2: hair got there. The evidence that the state presented a
15:31
Speaker 2: trial was that the hair was lying on her open hand,
15:35
Speaker 2: which supported the theory that the hair fell from someone's head,
15:40
Speaker 2: a Morgue attendant one of the personnel at the crime scene.
15:44
Speaker 2: So what the state argued to the jury was disregard
15:48
Speaker 2: the hair. What we found out later is that the hair,
15:52
Speaker 2: as I noted, was found between her bound hands behind
15:56
Speaker 2: her back.
15:57
Speaker 1: And this is just a beginning. I mean, they even
16:00
Speaker 1: planted that scene in opening statements. But there's so much
16:04
Speaker 1: more here to unpack, so go ahead, Dale.
16:06
Speaker 2: At trial, the state put on evidence that it swabbed
16:11
Speaker 2: the victim's vagina, and that swab contained fluid deposited by
16:16
Speaker 2: someone who had blood Type A and was a secretor,
16:20
Speaker 2: and someone who was a secretor secretes antigens into their
16:25
Speaker 2: bodily fluids. And the state put on evidence that Tony
16:29
Speaker 2: was a Type A secretor, so he was likely to
16:32
Speaker 2: be the perpetrator. What the state withheld was that Miss
16:37
Speaker 2: Flynn was also an A type secretor, so that meant
16:41
Speaker 2: that the fluids in Miss Flynn's body were just as
16:45
Speaker 2: likely her own. Now that is the only physical evidence
16:49
Speaker 2: that the state put on at trial. All the rest
16:52
Speaker 2: of the evidence was circumstantial.
16:54
Speaker 1: So the detective gave misleading Well that's not even a
16:57
Speaker 1: strong enough way of putting it, but they gave misleading testimony.
17:01
Speaker 1: During the trial, right, the prosecutor asks Detective Zalor, did
17:06
Speaker 1: Tony ever make a statement to you?
17:08
Speaker 2: And he said, Tony said to me, when I'm indicted,
17:11
Speaker 2: can you let me know? The defense asked for copies
17:15
Speaker 2: of notes. Detective said he didn't have any notes at
17:18
Speaker 2: the time. The defense was not entitled to the police reports.
17:23
Speaker 2: The defense lawyer made an objection. The judge ordered the
17:27
Speaker 2: prosecutor to review the police reports. Prosecutor did so and said,
17:32
Speaker 2: there is no report of any oral statement that Tony
17:36
Speaker 2: made to detective Zalor. Well, a couple of years later,
17:39
Speaker 2: when we made a Public Records Act request, we found
17:43
Speaker 2: that type statement by Detective Zalor where he wrote Tony
17:48
Speaker 2: said if I'm indicted, that is critical? And why is
17:53
Speaker 2: when important? Because during the closing arguments the prosecutor hammered
18:00
Speaker 2: on those words and said, this proves he had a
18:05
Speaker 2: guilty mind.
18:06
Speaker 1: If I'm indicted. When I'm indicted, it's actually kind of
18:12
Speaker 1: terrifying to think that the substitution of that one little
18:17
Speaker 1: word could have made such a huge difference in the
18:21
Speaker 1: outcome of this case. What was your sense of things
18:25
Speaker 1: while the jury was deliberating.
18:27
Speaker 3: I totally expected to be found that guilty. I mean,
18:30
Speaker 3: I didn't do it, you know. I look, I did time.
18:35
Speaker 3: I copped out. I had aggravator robbers. I copped out.
18:38
Speaker 3: I went to PLU that I did my time. You
18:40
Speaker 3: commit a crime, you make a deal. Man. This case,
18:43
Speaker 3: there's no deal making here. I didn't do it.
18:47
Speaker 1: But they took whatever they could muster and whatever they
18:50
Speaker 1: could hide to tell their story, and the jury bought it.
18:55
Speaker 1: Lock Stock and Barrel. What was that moment like when
18:58
Speaker 1: they found you guilty?
19:00
Speaker 3: When their judge said guilty, I slammed my hand. It
19:04
Speaker 3: wasn't a conscious thing I did. It was just a reaction.
19:07
Speaker 3: I slammed my hand on the table and I said,
19:10
Speaker 3: that's bullshit. They pulled the jury and they were asking
19:14
Speaker 3: the jury, you know is this year verdic Conditioner called
19:16
Speaker 3: twelve of them. And as they're doing it, I kept saying, now, man,
19:19
Speaker 3: it's bullshit at any right.
19:21
Speaker 1: And Dale, this is a laundry list of crimes that
19:24
Speaker 1: he was convicted of.
19:25
Speaker 2: Tony was convicted of aggravated murder, aggravated burglary, two counts
19:31
Speaker 2: of rape. What's interesting about the rape counts is that
19:36
Speaker 2: they were carbon copy counts, meaning the state said count
19:40
Speaker 2: one of rape vaginal and or oral rape, second count
19:45
Speaker 2: of rape vaginal and or oral rape. So we don't
19:49
Speaker 2: have a distinction between the vaginal rape and the oral rape.
19:56
Speaker 2: And this becomes critical later on in post conviction litigation.
20:01
Speaker 1: Tony was sentenced to fifteen to twenty five years for
20:03
Speaker 1: the burglary and rape counts for a summer of forty
20:06
Speaker 1: five to seventy five years, and he received a death
20:08
Speaker 1: sentence for the murder charge. Can you talk about I
20:12
Speaker 1: mean death row, It's it conjures up really everyone's worst
20:16
Speaker 1: nightmares back then.
20:17
Speaker 3: They took me straight to Lucasville Pennitentiary where death row was,
20:21
Speaker 3: and they put me right there in the cell on
20:22
Speaker 3: death row. Death row is not like being in prison.
20:26
Speaker 3: It's a whole different expanse and ten times worse than prison.
20:29
Speaker 3: You know, I'm not going to the pro board and
20:31
Speaker 3: going home next week because I stole a car. These
20:34
Speaker 3: people are going to kill me if I don't get
20:36
Speaker 3: back out. In nineteen eighty nine, the federal court on
20:54
Speaker 3: a rape pace in Florida ruled death. DNA evidence is sound,
20:59
Speaker 3: signific evidence and can be used to show a person
21:04
Speaker 3: committed a crime or not. Immediately. Tom Shaw has seen
21:07
Speaker 3: my trial lawyer file devotion requesting DNA testing.
21:11
Speaker 1: Then nineteen eighty nine, an attorney for Tony requested files
21:14
Speaker 1: from the Flynn autopsy. At that time, the vaginal at
21:18
Speaker 1: oral slides could not be located. They were assumed to
21:21
Speaker 1: have been destroyed. But nineteen ninety one is when you
21:25
Speaker 1: got involved there, right, And this is when the three
21:28
Speaker 1: slides were magically located.
21:31
Speaker 2: In nineteen ninety one, Forensic Science Associates, at the request
21:35
Speaker 2: of the Cayahaga County Coroner's Office, conducted DNA testing. I
21:41
Speaker 2: found out about the three slides in nineteen ninety two
21:45
Speaker 2: when I got a phone call from the county prosecutor saying,
21:49
Speaker 2: we found these three slides. Now we would like some
21:52
Speaker 2: of Tony's blood to compare it to the slides. These
21:56
Speaker 2: are the same people who withheld evidence. This is the
22:00
Speaker 2: same county where the coroner's office was a sloppy lab.
22:05
Speaker 2: This is the same police department where the detective lied
22:09
Speaker 2: on the stand. We need to be damn sure we
22:12
Speaker 2: know where these slides came from. When we start digging
22:17
Speaker 2: into it, what we learned is that all slides are
22:20
Speaker 2: marked with the county corner case number. In Tony's case,
22:24
Speaker 2: it was one nine zero seven three seven something like that.
22:28
Speaker 2: There was one slide that was marked L nine zero,
22:33
Speaker 2: so it was misnumbered, and that slide turned out to
22:38
Speaker 2: be an important slide. And I resisted providing a DNA
22:43
Speaker 2: sample from Tony for testing because I was concerned about
22:48
Speaker 2: the chain of custody of those slides.
22:51
Speaker 1: And there's a bit of a twisted history about these
22:53
Speaker 1: three slides. So KaiA Hagen County first denied the existence
22:57
Speaker 1: of these three slides in nineteen eighty nine. Then in
23:00
Speaker 1: nineteen ninety one they magically find the slides, the missing slides.
23:04
Speaker 1: There's three of them. Two are marked properly as Dale mentioned,
23:08
Speaker 1: one vaginal and one oral, but the other one is
23:11
Speaker 1: supposed to be an oral slide and is not marked properly,
23:14
Speaker 1: the L nine zero slide that Dale mentioned. In nineteen
23:18
Speaker 1: ninety one, a lab called Forensic Science Associates was tasked
23:22
Speaker 1: with developing DNA profiles from all three slides, and with
23:26
Speaker 1: the available technology and methods, was only able to develop
23:30
Speaker 1: a testable male DNA profile from the oral slide marked
23:34
Speaker 1: L nine zero. Now, Cuyahoga County had Tony's blood, hair,
23:38
Speaker 1: and saliva samples that he had provided during the investigation,
23:41
Speaker 1: but for whatever reason, those samples were not available to
23:45
Speaker 1: FSA for comparison. Dale rightfully had serious concerns about the
23:50
Speaker 1: chain of custody and so he denied access to a
23:53
Speaker 1: new DNA sample from Tony. So the L nine zero
23:57
Speaker 1: slide sat in a freezer until two thousand, when FSA
24:01
Speaker 1: used the most current technology and methods to test it,
24:05
Speaker 1: and in two thousand and seven a federal district court
24:09
Speaker 1: ordered that Tony provide a sample for comparison to L
24:13
Speaker 1: nine zero. So a report is generated and the prosecution
24:16
Speaker 1: says that Tony couldn't be excluded as a contributor. But
24:20
Speaker 1: for some strange reason, this report never makes it into evidence.
24:25
Speaker 1: And you'd think, with how fertherly the state is trying
24:28
Speaker 1: to hang onto the conviction, that a report like that
24:31
Speaker 1: would have been the centerpiece of post conviction.
24:34
Speaker 2: The state never presented those reports to either the federal
24:39
Speaker 2: court or the state court. During the fourth post conviction hearing.
24:44
Speaker 2: What the state did was simply waived around these reports,
24:49
Speaker 2: but they never offered those reports into evidence. When we
24:53
Speaker 2: tried to take depositions of the folks from FSA who
24:58
Speaker 2: did the testing generated the reports, the state prevented us
25:03
Speaker 2: from doing so and told the judge that they were
25:06
Speaker 2: not going to present these reports. So all of this
25:10
Speaker 2: information about this oral slide and whatever test results the
25:16
Speaker 2: state has has never been tested through the adversary process.
25:21
Speaker 2: None of the people who generated these documents have testified
25:25
Speaker 2: under oath, and they have not been subject to the
25:29
Speaker 2: rigorous scientific scrutiny before something like this is introduced into evidence.
25:36
Speaker 2: So bottom line, the oral slide is not evidence.
25:42
Speaker 1: If this was really something that could have hurt Tony,
25:44
Speaker 1: I'm gonna speculate here, but I mean, it seems pretty
25:47
Speaker 1: obvious they would have admitted it as evidence. They have
25:50
Speaker 1: had so many opportunities to do so, but they've declined
25:53
Speaker 1: every single time. So that brings us to two thousand
25:57
Speaker 1: and nine, when Dale and the team found out that
25:59
Speaker 1: back in two thousand, an assistant prosecutor requested that the
26:03
Speaker 1: Cayahaga County Corner's Office tested two remaining properly labeled vaginal
26:09
Speaker 1: and oral slides that had previously not yielded a DNA profile.
26:13
Speaker 2: We were preparing for a hearing in the Habeas Corpus case,
26:18
Speaker 2: and the judge allowed for some discovery and one of
26:22
Speaker 2: the people that we deposed was the corner from Cayahoga County.
26:27
Speaker 2: She brought documents that we had subpoenaed and we first
26:31
Speaker 2: learned that in two thousand, the state did another test,
26:34
Speaker 2: got results, didn't share those results with us, And in
26:39
Speaker 2: twenty twelve we went back to state court for the
26:42
Speaker 2: fourth time and had a hearing on that evidence that
26:47
Speaker 2: was tested in two thousand.
26:49
Speaker 1: So twenty fourteen, the defense expert, doctor Rick Staub, was
26:54
Speaker 1: able to prove conclusively that Tony could be excluded as
26:58
Speaker 1: a contributor to the vaginal slide and the two unknown
27:01
Speaker 1: male contributors were in fact present. So Tony was acquitted
27:06
Speaker 1: of the vaginal rape charge quitted and the second count
27:10
Speaker 1: of rape was dismissed on the grounds that had lacked specificity.
27:14
Speaker 3: And it was one year later, March sixth, twenty sixteen,
27:18
Speaker 3: went to your appeals court three to zero. They all
27:21
Speaker 3: three agreed, yes, the DNA proved I was innocent and
27:25
Speaker 3: I got out that day.
27:27
Speaker 1: Okay, go to that moment if you can.
27:29
Speaker 3: Oh man, I've always been waiting for this moment to happen.
27:34
Speaker 3: And my daughter Elena, the one that I shifts goodbye.
27:37
Speaker 3: When I went and turned myself in, she came out
27:40
Speaker 3: with two of my grandchildren, my granddaughter Raina and grandson Navan.
27:45
Speaker 3: Oh Man, first time I got to see them in person.
27:48
Speaker 3: You know, I called the money, well my wife, now, Beth.
27:50
Speaker 3: I got a hold of her. I let her know
27:52
Speaker 3: I'm home.
27:53
Speaker 1: So tell us about your wife, Beth. How did that
27:55
Speaker 1: all develop?
27:56
Speaker 3: I've known her like twenty some years, you know, she
27:59
Speaker 3: was in prison and everything. I mean, I've been in
28:02
Speaker 3: love with that woman for many years. I mean I
28:05
Speaker 3: knew that I was going to get out someday, and
28:09
Speaker 3: we had, you know, decided when I got out, then
28:12
Speaker 3: we'll see if we're going to have a relationship, you know,
28:14
Speaker 3: and if we can have one, because you know, I'm
28:17
Speaker 3: like a lab experiment. Maybe all the years locked up
28:21
Speaker 3: so her and the kids would come over several times
28:25
Speaker 3: a week, you know. When I first got home, finally,
28:29
Speaker 3: I said, I don't know what we're waiting for. I said, Mab,
28:30
Speaker 3: you know, I love you, and she's like, you know,
28:33
Speaker 3: I love you too, And I said, so, you know
28:35
Speaker 3: we're old. What are we waiting for. Let's get married. Man.
28:38
Speaker 3: I don't spend my life locked up. I want to live.
28:41
Speaker 3: And she's like, okay, but I got two granddaughters that
28:43
Speaker 3: you're going to have to raise. And I'm like, maybe
28:45
Speaker 3: I got no problem. I didn't get a chance to
28:47
Speaker 3: raise my kids. Now I'm getting a second chance at life.
28:50
Speaker 1: I'm sure everyone's wondering, Okay, so why in God's name
28:54
Speaker 1: is he calling us from death row?
28:56
Speaker 2: Well, the state appealed to the Ohio Supreme Court. What
29:01
Speaker 2: the Ohio Supreme Court determined was that under the Ohio
29:06
Speaker 2: DNA Testing Statute that in order for a death row
29:11
Speaker 2: prisoner to get an evidentiary hearing on the issue of DNA,
29:17
Speaker 2: the prisoner has to make the request for the testing.
29:21
Speaker 2: What happened here is that the state did the testing
29:25
Speaker 2: in two thousand, kept it from us until two thousand
29:29
Speaker 2: and nine, and in twenty twelve through twenty fourteen, we
29:34
Speaker 2: present evidence that Tony is excluded as the person who
29:38
Speaker 2: committed the rape in a single assailant homicide. And what
29:43
Speaker 2: the Ohio Supreme Court did was it put form over substance.
29:49
Speaker 2: Because Tony did not request the DNA testing, he was
29:53
Speaker 2: not entitled to that hearing. So in the court's view,
29:58
Speaker 2: that hearing, where he was a design rated of the
30:01
Speaker 2: rate charges never existed.
30:03
Speaker 1: So you from your death row cell were required to
30:08
Speaker 1: have requested the DNA that the state had insisted didn't exist.
30:14
Speaker 3: That blew my mind. That next Friday, my wife, she
30:17
Speaker 3: asked me to bake some mac and cheese. My other
30:20
Speaker 3: stepdaughter she just moved into a place she had no
30:22
Speaker 3: washer and dryer. I went. I got to Washington dryer.
30:25
Speaker 3: Now I gotta go pick the grand babies that were raising,
30:28
Speaker 3: Chloe and the Jay, and I gotta go pick them
30:29
Speaker 3: up from school. I got to take the dog to
30:32
Speaker 3: the vet. I got to wash her a dryer in
30:34
Speaker 3: the back of the pickup truck. I'm doing normal stuff
30:36
Speaker 3: that people do out there, you know, in life. You know,
30:39
Speaker 3: I'm loving every minute of it. And I get out
30:41
Speaker 3: of the truck and I'm heading heading to the porch,
30:44
Speaker 3: and here come these six cars man Us Marshals jump out,
30:49
Speaker 3: Highway patrol and Akron Police. I went from my front
30:52
Speaker 3: yard to death Road, just like that. Man. No facts change,
30:56
Speaker 3: no evidence changed, nothing changed, Get off, geth throw and
31:01
Speaker 3: go home for nothing. It's like I'm in the Twilight zone, man,
31:07
Speaker 3: you know. I mean I wake up every day and
31:09
Speaker 3: it's like, Wow, I just can't hardly understand what I'm
31:15
Speaker 3: doing here.
31:16
Speaker 1: Man, Tony, I can only say that this will not stand.
31:21
Speaker 1: We will not allow this to stand. We're going to
31:23
Speaker 1: just grow this movement and we're going to find a
31:26
Speaker 1: way to help your team get you justice.
31:29
Speaker 3: Yeah. Law professor at Georgetown, Mark Howard, and three of
31:33
Speaker 3: his students, they got interested in my case. They made
31:36
Speaker 3: a documentary, and then they set up a website. I
31:38
Speaker 3: guess they have a petition.
31:40
Speaker 1: Which is Justice for a Panovich dot com. Please go
31:44
Speaker 1: visit the website when there's a petition on the page,
31:46
Speaker 1: and there will be a link to it in our
31:48
Speaker 1: episode bio. So please go there as well and shout
31:52
Speaker 1: out to the students for their great work. So it's
31:55
Speaker 1: now time for us to turn to the closing of
31:58
Speaker 1: the show. This is the part of the show where,
32:01
Speaker 1: first of all, thank our distinguished guests, Dale Base, Federal
32:05
Speaker 1: Public Defender Advocate extraordinaire Tony, thank you for being here
32:11
Speaker 1: with us. Hang in there, buddy. We're going to bring
32:14
Speaker 1: you home. And now I'm going to turn my microphone off,
32:17
Speaker 1: kick back, close my eyes and listen. Dale you first,
32:22
Speaker 1: and then Tony.
32:23
Speaker 2: Thank you, Jason. It's been almost thirty six years since
32:28
Speaker 2: Tony was sentenced to death. Since then, as his case
32:32
Speaker 2: moved through the levels of a pellet review, evidence that
32:35
Speaker 2: the state withheld a trial began to seep out, the
32:39
Speaker 2: secretor's status of the victim, other suspects, lies by police
32:44
Speaker 2: and prosecutors uncovered. The problem was and still is that
32:49
Speaker 2: this case, like all death penalty cases, moved through the system,
32:54
Speaker 2: the courts put form over substance in decline to look
32:58
Speaker 2: at the merits of the claim. What we have here
33:01
Speaker 2: is a wrongful conviction. How do we know that? It's
33:05
Speaker 2: because Tony is excluded from a rape in a case
33:09
Speaker 2: where the state's theory is that there was a single assailant.
33:13
Speaker 2: This doesn't make sense to me as a lawyer, and
33:15
Speaker 2: may not make sense, but people need to understand that
33:19
Speaker 2: the system is constructed this way. The system needs to
33:23
Speaker 2: be fixed, and we need to write this wrong in
33:26
Speaker 2: Tony's case. The team that has worked on this case
33:30
Speaker 2: over the years from my office from Mark Devan's office,
33:35
Speaker 2: from the law firm of Crol and Mooring. We're not
33:37
Speaker 2: going to give up.
33:38
Speaker 1: Tony over to you.
33:40
Speaker 3: First of all, Jason, I want to thank you for
33:43
Speaker 3: having me on your podcast and for giving me this
33:47
Speaker 3: opportunity to tell my story. From the very beginning, I
33:50
Speaker 3: said I was innocent. I didn't commit this crime. I
33:53
Speaker 3: had no problem cooperating with the cops, given in my
33:56
Speaker 3: hair and blood saliva, answering all their questions. I'm innocent.
34:01
Speaker 3: Come on here I am. Thirty six years later, after
34:05
Speaker 3: being sent home, being found innocent and sent home, I'm
34:10
Speaker 3: back on death row on a technicality, amazing as it is,
34:14
Speaker 3: and I'm still innocent. I didn't do this. All I
34:18
Speaker 3: want is my day in court. That's it. Just what
34:21
Speaker 3: are they afraid of? Let a jury see all the evidence,
34:25
Speaker 3: you know, and I'm confident. I have no doubt in
34:27
Speaker 3: my mind that they'll find me not guilty. There's no
34:30
Speaker 3: doubt because I didn't commit this crime, and I think
34:32
Speaker 3: the evidence. In fact, I don't know what I can
34:35
Speaker 3: say or do to convince people of my innocence. You know,
34:40
Speaker 3: I've been saying it for years. Just look at the evidence.
34:42
Speaker 3: Look at the fact, and again I say, I appreciate
34:47
Speaker 3: having this opportunity, and Jason, you're doing a good job
34:51
Speaker 3: here for society, and I appreciate everything that you're doing,
34:55
Speaker 3: and I really appreciate what you're doing for me.
35:04
Speaker 1: Thank you for listening to Wrongful Conviction with Jason Flahm.
35:07
Speaker 1: Please support your local innocence projects and go to the
35:10
Speaker 1: link in our bio to see how you can help.
35:13
Speaker 1: I'd like to thank our production team Connor Hall, Jeff Cliburn,
35:16
Speaker 1: and Kevin Warnis. The music on the show, as always,
35:20
Speaker 1: is by three time OSCAR nominated composer Jay Ralph. Be
35:23
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35:31
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35:33
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