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Thread: Anthony Apanovitch - Ohio Death Row

  1. #11
    Administrator Helen's Avatar
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    Judge sends Cleveland man back to death row in 1984 rape and murder of nurse, despite reservations

    By Cory Shaffer
    cleveland.com

    CLEVELAND, Ohio -- A Common Pleas Court judge on Tuesday rejected an imprisoned Cleveland man’s challenge to his 1984 conviction and death sentence in the raping and killing of a nurse.

    Judge Robert McClelland sent Anthony Apanovitch back to death row after the Ohio Supreme Court last year reversed his 2015 decision granting Apanovitch a new trial based on new DNA tests.

    McClelland in a 5-page opinion expressed dismay that Apanovitch was sentenced to death based solely on circumstantial evidence presented during a trial that took place just 55 days after the crime and noted the record of the case against Apanovitch was “troubling.”

    “It is difficult to be at the end of the line,” McClelland wrote. He said legal precedent and prior court rulings “leave this court with no other option than to deny the motion for new trial on the basis that the Defendant is unable to show a strong possibility that a new trial would end in a different result.”

    Cuyahoga County Prosecutor Michael O’Malley said in a statement through a spokesman that Apanovitch belongs on death row.

    “The gamesmanship has gone on for too long,” O’Malley said . “Putting him back on death row ends the agony of years of litigation that has tortured the victim’s family."

    Apanovitch’s appellate attorney, Mark DeVan, did not immediately return a request for comment Wednesday.

    Apanovitch has been on death row since he was convicted of the rape, burglary and murder of Mary Ann Flynn of Cleveland.

    Flynn, a 33-year-old nurse, hired Apanovitch to paint her Archwood Drive home in the summer of 1984, according to records. He raped, beat and strangled her, prosecutors said. Flynn had previously told friends he had propositioned her and she was afraid of him.

    Apanovitch repeatedly appealed his conviction and death sentence. As part of that process, prosecutors in 1991 discovered slides of DNA evidence collected from Flynn’s vagina and mouth that had been misplaced in the Cuyahoga County Coroner’s Office, court records said. The next year, the office sought to obtain a DNA sample from Apanovitch to test against the newly discovered slides. Apanovitch resisted the testing, arguing through his lawyers that the results would likely be inaccurate and that the chain of custody had been broken.

    A federal court in 2006 ordered Apanovitch to give his DNA sample to prosecutors and testing revealed that Apanovitch was not a match for the DNA from Flynn’s vagina. But a forensic report and an expert hired by prosecutors found that Apanovitch was likely the source of the DNA in her mouth, according to court records.

    In 2012, Apanovitch filed a motion for post-conviction relief over the results of the newly discovered test results.

    McClelland held a 2015 hearing and acquitted Apanovitch of the vaginal rape charge, overturned his convictions on the other charges and ordered a new trial. Prosecutors appealed to the Ohio Supreme Court, where a divided set of justices overturned the ruling and found that Ohio law barred McClelland from ruling on the post-conviction relief motion.

    McClelland in his Tuesday order wrote he agreed with the dissenting opinion in the Ohio Supreme Court’s original ruling on direct appeal that the death penalty was inappropriate for Apanovitch, but he did not have the authority to alter that decision because he could not hold that Apanovitch would likely have prevailed at a new trial based on the DNA test results.

    https://www.cleveland.com/court-just...ervations.html
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    “There are lots of extremely smug and self-satisfied people in what would be deemed lower down in society, who also deserve to be pulled up. In a proper free society, you should be allowed to make jokes about absolutely anything.”
    - Rowan Atkinson

  2. #12
    Moderator Bobsicles's Avatar
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    On October 28, 2022, Apanovich filed a habeas petition in federal district court.

    https://dockets.justia.com/docket/oh...cv01946/292151
    Thank you for the adventure - Axol

    Tried so hard and got so far, but in the end it doesn’t even matter - Linkin Park

    Hear me, my chiefs! I am tired. My heart is sick and sad. From where the sun now stands, I will fight no more forever. - Hin-mah-too-yah-lat-kekt

    I’m going to the ghost McDonalds - Garcello

  3. #13
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    State lawmakers cross party lines to work together, pushing for clemency for Cleveland prisoner on death row

    By Cory Shaffer
    cleveland.com

    CLEVELAND, Ohio -- A bipartisan group of state lawmakers is pushing to free a Cleveland man who is on death row for a 1984 rape and murder that he maintains he didn’t commit.

    Anthony Apanovitch, who was freed for nearly two-and-a-half years after a judge in 2015 determined DNA evidence cleared him of some of the conduct for which he was convicted in the attack of Mary Anne Flynn, asked the Ohio Parole Board in April to recommend that Gov. Mike DeWine grant him clemency.

    Republican representatives Bill Seitz of Cincinnati and Sharon Ray of Wadsworth joined Democrats Joe Miller of Amherst and Latyna Humphrey of Columbus in a signed letter this week calling on parole officials to hold a hearing on Apanovitch’s case “expeditiously.”

    “This injustice needs to be corrected now. An innocent man has already served almost 40 years in prison, despite DNA evidence not placing him at the scene of the crime,” the letter said. “This ruling needs to be reversed, swiftly. There is no reason for a man whose innocence was proven to spend any more time on death row.”

    The lawmakers join several anti-death penalty groups and two former Ohio Supreme Court justices, including one who voted to uphold Apanovitch’s conviction in 1987, to call for a hearing on the case.

    The state has not set an execution date for Apanovitch.

    Apanovitch’s attorney, retired federal public defender Dale Baich, said that the board will not set a hearing on Apanovitch’s application until his execution date is “imminent.” Ohio has a de facto moratorium on executions, as it cannot find the needed drugs for lethal injection.

    “It’s unfair to make Mr. Apanovitch sit on death row for all that time when there is evidence that proves he did not commit the crime,” Baich said.

    Cuyahoga County Prosecutor Michael O’Malley’s office declined to respond to the letter.

    Prosecutors have long disagreed with the assertion that DNA testing clears Apanovitch of the crime. In court filings, they pointed to a 2007 test by a private forensic lab in California that found that DNA found in the woman’s mouth matched Apanovitch.

    He was convicted of the 1984 attack on Flynn at her home. Flynn did not show up to her job as a nurse at what was then Cleveland General Hospital on Aug. 24. Her brother went to check on her and discovered her body lying face down in her bedroom with her hands bound behind her back and a bed sheet tied around her neck, according to court filings. She was strangled and beaten with a board that had broken off the basement window.

    No eyewitness placed Apanovitch at the scene of the killing. Prosecutors instead relied upon statements from Flynn’s neighbors and friends who said the woman had told them she was afraid of a painter she had hired that summer to paint her house because he had made sexually suggestive comments to her.

    Detectives determined the painter was Apanovitch, and they found he had fingernail scratches on his cheek that he got on the night of the murder that he could not account for, according to court records.

    A grand jury indicted Apanovitch on aggravated murder, aggravated burglary and two counts of rape in October 1984, and he went to trial in December. A jury convicted him on all counts and recommended a death sentence that a judge later imposed.

    The way the case has played out, however, has prompted state lawmakers to question Apanovitch’s guilt. It is somewhat rare for legislators to jump into a defendant’s fight for freedom, but it has happened. In this case, it was needed, according to Seitz, the representative from Cincinnati.

    “It’s a very complicated case,” Seitz told cleveland.com and The Plain Dealer. “We should take every precaution to prevent wrongful convictions. I believe the guilty should be punished, and the innocent should go free. And I believe this case deserves a greater examination.”

    An appellate journey

    The case has gone through a carousel of appeals in both state and federal courts. The 6th U.S. Circuit Court of Appeals found in 2001 that prosecutors in the original case committed several errors and withheld several pieces of evidence from Apanovitch’s legal team of Mark Stanton and Thomas Shaughnessy.

    The evidence included the location of a hair that was found on Flynn’s body that did not belong to either her or Apanovitch. A Cuyahoga County coroner’s forensic scientist testified the hair was found on the top of her hand and was probably left by an investigator who handled the body.

    But in her report, which was not provided to Apanovitch’s attorneys until years after trial, the same forensic scientist wrote that the hair was discovered underneath her hands and her back. Apanovitch’s attorneys argued the hair was likely left by the killer, and, because investigators determined it was not Apanovitch’s, he was wrongfully convicted.

    But the federal appellate court ultimately held in 2012 the errors would not have made a difference in his original trial, and it upheld his conviction.

    Apanovitch and prosecutors then fought over DNA testing for nearly two decades. In 1991, a coroner’s employee found slides containing fluids from Flynn’s mouth and pelvis that were previously thought to have been destroyed or lost.

    The coroner’s office sent the slides to a California laboratory that had more advanced testing methods than the state lab here, and the testing showed there was not enough DNA in the slides to test.

    County prosecutors, in 2000 and 2006, asked the lab for additional testing, without notifying Apanovitch’s lawyers, according to court records. The 2006 testing pulled a DNA profile from the sample from Flynn’s mouth that only 1 in 285 million white men shared, according to court filings. There wasn’t enough DNA in the other two slides to get a unique profile, records say.

    The lab found that Apanovitch’s DNA matched that taken from Flynn’s mouth, according to court filings.

    Apanovitch hired his own DNA expert, who testified at a 2015 hearing for new trial before then-Cuyahoga County Common Pleas Court Judge Robert McClelland that slides containing DNA from Flynn’s pelvis came from two different people, and Apanovitch was not one of them.

    Prosecutors did not call the forensic scientist from the California lab to testify about the report tying DNA from Apanovitch to that found in Flynn’s mouth, and they agreed not to offer the report as evidence, so McClelland ruled that he could not use it.

    Apanovitch’s expert’s report also said the DNA from Flynn’s mouth came from two people, neither of whom was Apanovitch. The defense expert did not testify about that part of the report because prosecutors did not introduce evidence from the oral slides at the hearing.

    McClelland overturned Apanovitch’s conviction, found him not guilty of rape and ordered a new trial on the aggravated murder and aggravated burglary charges.

    A release from prison, then a return

    Apanovitch was then released from prison for the first time in more than 30 years.

    Prosecutors appealed to the Ohio Supreme Court, which held that the state law around DNA testing is written in such a way that only defendants seeking a new trial can request DNA testing as part of the process. Because prosecutors initially sought to do the tests in 1991, the court held that it didn’t matter what the results of the tests were -- McClelland could not overturn Apanovitch’s conviction and death sentence.

    The justices ordered Apanovitch back to prison, and he returned to death row in 2018, after spending nearly two-and-a-half years free.

    The justices did say that McClelland could decide on the appeal based on a different rule of procedure that prosecutors and Apanovitch’s attorneys had previously agreed on.

    However, in a second hearing, McClelland reversed his previous decision and used the 2007 DNA report and upheld his conviction and death sentence on the charges that accused Apanovitch of raping Flynn orally. McClelland dismissed Apanovicth’s conviction of a second rape charge.

    Apanovitch’s attorneys appealed McClelland’s decision, arguing that the judge was wrong to rely on the 2007 report because its authors have never testified in court about its accuracy. They also argue that the slides could be contaminated because they spent at least three years buried in a desk.

    The Ohio Supreme Court ultimately decided that, because the report had been discussed in previous testimony in both federal and state court, it became part of the record and was fair game.

    Anti-death penalty groups join fight

    Several anti-death penalty groups and criminal justice advocacy organizations have taken up Apanovitch’s case for more than two decades. They have argued that too many questions remain about his guilt and the way his case was handled for the state to kill him.

    Apanovitch filed a request for executive clemency in April. In his request, Apanovitch again claimed his innocence and challenged the accuracy of the 2007 DNA report.

    The request also says that, in the more than two years he was freed, he found a job, volunteered at two local churches and married a woman who began communicating with him nearly 20 years ago.

    The lawmakers who signed onto this week’s letter are also in support of a bill introduced by state representatives Terrence Upchurch, a Cleveland Democrat, and Jean Schmidt, a Cincinnati-area Republican, to close the loophole that prevents defendants from winning a new trial based on exculpatory DNA evidence unless they are the ones who seek the testing.

    Two of the Ohio Supreme Court justices who heard Apanovitch’s direct appeal in 1987, Justice Herbert R. Brown and Justice Craig Wright, wrote letters to the parole board. They said that the information that has come out since 1987 makes them doubt Apanovitch’s guilt.

    Wright, who wrote the 4-3 majority opinion upholding Apanovitch’s conviction and death sentence, wrote in a 1996 letter before the dispute over DNA evidence that he had “residual doubt” about the case against Apanovitch and urged the board to commute the death sentence to a life sentence.

    Brown wrote in the court’s dissenting opinion in 1987 that he believed there was a “substantial possibility” that Apanovitch “may not be guilty.” In a letter dated March 11 of this year, he urged the parole board to release Apanovitch from prison.

    “This Board has the authority, even the duty, to right a wrong and correct an injustice that has now lasted almost 38 years,” Brown wrote.

    He added, “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.”

    https://www.cleveland.com/court-just...death-row.html
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    “There are lots of extremely smug and self-satisfied people in what would be deemed lower down in society, who also deserve to be pulled up. In a proper free society, you should be allowed to make jokes about absolutely anything.”
    - Rowan Atkinson

  4. #14
    Moderator Bobsicles's Avatar
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    On February 17, 2023, Apanovich filed an appeal to the Sixth Circuit.

    https://dockets.justia.com/docket/ci...ts/ca6/23-3149
    Thank you for the adventure - Axol

    Tried so hard and got so far, but in the end it doesn’t even matter - Linkin Park

    Hear me, my chiefs! I am tired. My heart is sick and sad. From where the sun now stands, I will fight no more forever. - Hin-mah-too-yah-lat-kekt

    I’m going to the ghost McDonalds - Garcello

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