July 2, 2026 • 40 mins
On August 23rd, 1984, Mary Anne Flynn was found dead in her Cleveland, OH bedroom. She had been strangled and severely beaten and there was evidence she had been sexually assaulted. There were multiple suspects including a violent ex-boyfriend, an ex-tenant who was an attempted rapist and an exterminator who had a copy of the house key. But investigators focused solely on Tony Apanovitch, a local painter Flynn hired to work on her house. Apanovitch cooperated with investigators and told them he last saw her between 4 and 4:30 on the day of her death to ask about painting the window trims. There were no witnesses and no physical evidence linked Apanovitch to the crime. Nevertheless, he was convicted of aggravated murder, aggravated burglary, and 2 counts of rape and sentenced to death.
Learn more and get involved at:
https://www.justice4apanovitch.com/petition-to-save-tony
https://www.wrongfulconvictionpodcast.com/with-jason-flom
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Speaker 1 (00:04):
Hi.
Speaker 2 (00:05):
It's Connor Hall, senior producer for Wrongful Conviction with another
case update and behind the scenes insights. This one I'll
never forget Tony Panovitch, Ohio death penalty case. After this
came out, they ended up putting him in the hole.
I felt terrible about it. We don't ever want to
do harm. That's like our number one guiding light here
(00:28):
is we do no harm. And that was harm that
we did. Of course. I reached out to his attorney
Dale Base and he was like, Tony said he'd do
it again anyway, and he said, since then, you know,
life has been better in there because you know some
of the guards that they treat him a little bit better,
which I guess any kind of positive is welcome when
you're on death row. And another guiding principle that we
(00:49):
have here is you know, if we can help, we
will help. You know how much help are we actually
delivering here? You know, just a podcast, right, but I
wish other people have that as their guiding light, presidents
and governors. You know, if you'd listened to the one
we did about Billy Allen a couple of weeks ago,
I was talking about pardon powers and you know, I
(01:10):
made the plea to Ohio Governor Mike Dwine, who is
known to be against the death penalty. There's been an
unofficial moratorium on carrying out the death penalty during his term,
So I made a plea that he pleas act in
his final months in office to make that moratorium official.
Speaker 1 (01:28):
Somehow.
Speaker 2 (01:30):
That was June fourth, and just twelve days later, I
credit myself. Of course, I hope that's tripping with the
intended sarcasm, but my plea was answered. In part. Governor
Dwine made a statement calling on state legislators to abolish
the death penalty, and his reasoning, you know, he says that,
(01:52):
you know, he believes that it does nothing to deter
these kinds of crimes. That's the only reason, right. But
my plea has more to do with how little confidence
our legal system and those who operated inspire. We've covered
tons of innocent cases out of Ohio. Alexis Martin, Ruel,
Sailor Ricardo Gray, Marcus Blaylock, David Thorne, A shunt ay
(02:14):
and William Smith, David Smith, Chris Smith, Al Cleveland, Evan King,
Dean Gillispie, Raymond Allen Warren, Robert McClendon, Lewis Castillo Junior,
Eric Mish, Isaiah Andrews. While we didn't cover Isaiah Andrews,
he passed away before we got.
Speaker 3 (02:30):
A chance to.
Speaker 2 (02:31):
But there's so many people out of Ohio, Kevin Keith,
Gary Beeman, Dwayne Brooks, Derek Jamison, Chris Miller, Marcus Sapp.
I mean, Jesus, when you go to the innocentce Network conference,
half the people there are from like Ohio and Illinois.
And that might be just because you know, there's so
many pro bono lawyers to go around there and there
aren't in other places who have just as many problems.
(02:53):
And then you think about all the states that still
have an operational death row and how many of the
people must be innocent? I mean, Jason often asks death
penalty supporters, how many innocent people are you willing to
kill to keep this thing going? Are you willing to
be that sacrifice so that we can all feel tough
on crime? In Ohio? Loone death row cases we've covered
(03:16):
Joe Danbrosio, Elwood Jones, Ricky Jackson, Kwame Ajamu, Wilie Bridgeman,
all of whom are now free. And then there's so
many more that still remain there that we know about, right,
Tyron Noling, Jeffrey Wogenstahl, Keith Lamar, Tonya Panovitch. I'm knowing
that I a civilian, I can rattle off nine people
(03:40):
from Ohio's death row, knowing that in all likelihood there
are more. Wouldn't it seem necessary to just commute all
these prisoners off death row to life in prison? If
that's you know, as far as you're willing to go, right?
I mean, what if one of these innocent people on
death row was a friend or a family member, What
if it was you? Would you be willing to be
(04:01):
that sacrifice? I want you to think about this when
you're listening to Tony I Panovitch's story. He was in
nineteen eighty four rape and murder. The State's known for
decades that DNA testing of the crime scene evidence exonerates Tony,
Yet they first tried to hide it from him, then
they fought to keep it from being used in court,
(04:22):
and when it was finally presented showing two unknown male profiles,
Tony was finally set free in twenty sixteen, but the
state appealed that decision to the Ohio Supreme court arguing that, well,
he didn't order the DNA testing, he didn't request it.
That's the post conviction DNA testing statute is that it
(04:45):
has to be requested by the defendant, not the state.
He can't use that, so he was taken back to prison,
back to death row in twenty eighteen. That's our system
operating as it was designed, or as it was amended
along the way. Now since our coverage, bipartisan legislation has
(05:06):
been introduced at least twice to change the post conviction
DNA statute that led Tony back to death row, but
it never made it out of committee, and then his
clemency petition has stagnated because the parole board says, well,
it can't review it until there's an execution date. So
Tony needs to be on death's door to maybe then
(05:28):
have a bunch of political appointees, however corruptible they might be,
to consider his case and then pass along their recommendation
to the governor. Who knows when that will be. Meanwhile,
there is a man whose grandchildren would love to have
him around.
Speaker 3 (05:49):
It was the summer of nineteen eighty four. Tony Ipanovitch
was in the process of building his house painting business
on the west side of Cleveland. On August twenty third,
a woman named Mary Ann Flynn was beaten and strangled
to death. Authorities collected seamen from her body. Police soon
identified plenty of likely suspects, including a violent ex boyfriend,
(06:11):
an ex tenant who had been accused of rape, and
a few other men who had keys to her house,
as well as Tonya Panovitch, who had done some painting
for her earlier that summer, but Tony's whereabouts were entirely
accounted for. On the night of her murder, Tony was
perhaps too cooperative with police, refusing a lawyer, answering all
their questions and even voluntarily giving up hair, blood, and
(06:33):
saliva samples. He happened to have the same blood type
as fluid found at the scene, but the state presented
that piece of evidence without mentioning that miss Flynn had
that exact same blood type. The state hit evidence. The
detective lied on the stand, and in nineteen eighty four,
without DNA testing available to prove his innocence, Tony would
have to wait for that scientific advancement to free him
(06:56):
from his death sentence after thirty two years. But Remarkably,
his time on death Row didn't end there. This is
Wrongful Conviction with Jason Flamm. Welcome back to Wrongful Conviction
(07:22):
with Jason Flamm, and soon you'll be hearing the subject
of this episode, a man named Anthony Apanovich calling in
from death Row in Ohio, where he has been for
the better part of four decades for a crime he
didn't commit. With us on the show today is Dale Base,
a federal public defender who has been the lead lawyer
(07:44):
and staunch advocate for mister Ipanovich since nineteen ninety one,
probably before some of you were born, that's how long
he's been working on this case. So Dale, welcome back
to Wrongful Conviction.
Speaker 4 (07:56):
Thank you, Jason, it's good to be back.
Speaker 1 (07:58):
Hello.
Speaker 5 (07:59):
This is a pay debit call from Tony, an inmate
at the Chilla Coffee Correctional Institution. To accept this call,
Press zero, thank you for using GTL.
Speaker 1 (08:12):
They're ow.
Speaker 3 (08:13):
Hey, Tony, I'm happy to have you here with us,
but obviously I'm really sorry that it's under these circumstances.
Speaker 1 (08:19):
All Right, Thanks Jason, I appreciate that. I appreciate this
opportunity to tell my story.
Speaker 3 (08:25):
Now, Tony, I want to go back to before any
of this happened. You grew up in Ohio, right, Oh.
Speaker 1 (08:31):
Yeah, yeah, I grew up on the east side of Cleveland.
You quit going to school in about about the eighth grade.
I just started working when I was twelve years old.
I like construction work, though I like working outside. I
was a truck driver for about five years. Then I
was trying to get a painting business started because I figured,
you know, the summer months, I could work outside painting,
(08:51):
and then in the winter months I would be able
to drive truck.
Speaker 3 (08:54):
And so this brings us to the summer of nineteen
eighty four. Two neighbors have both hired you to do
some painting, Mary An Flynn and the guy that lived
across the street. For her, you painted the outside bottom
half of Miss Flynn's house. Now she intended to paint
her window frames herself, and then you started working across
the street painting her neighbor's entire house. And that brings
(09:15):
us up to August twenty third, nineteen eighty four. You
noticed that she hadn't gotten to painting the windows yet
and tried to get a little more business for yourself.
Speaker 1 (09:24):
So when I seen her, I walked over. I asked
her if she wasn't going to be able to get
to those frames that I said she wanted, I could
get it done, you know, because the weather's changing. She said, well,
she'd let me know. I think I told her it
was going to be like sixty bucks or something to
paint them. So that was the last time I had
seen her or talked to her. It was around four thirty. Well,
went back across the street and we finished up the job.
Then then we headed to the bar. That's what I
(09:46):
did the rest of the night, you know, was bar
hopping in the neighborhood.
Speaker 3 (09:50):
So later that night, mary Ann Flynn was raped and
brutally murdered in her bedroom. She'd been strangled and severely beaten,
and seamen was found and collected from both her mouth
and her vagina.
Speaker 4 (10:03):
Yes, so Marianne's body was transported to the County Coroner's
office in Cuyahoga County, Okay.
Speaker 3 (10:12):
And I got to stop for a second because Kyahaga
County was notorious as one of, if not the most corrupt, disorganized,
disfunctional crime labs in the entire country at that time.
The police, prosecutors and the corner's office have all been
the subject of news articles, scandals, podcasts for being sloppy
(10:34):
or outright corrupt.
Speaker 4 (10:36):
And let me give you a couple of examples. Liliana
Segura with The Intercept, did some great reporting that documented
a pattern of misconduct in the Cayahaga County Prosecutor's office.
And in twenty eighteen, season three of the podcast serial
feature the Cleveland Police Department, the Prosecutor's office, and the
(10:57):
courts in Cayahaga County as being somewhat corrupt, and the
folks at the Cayahaga County Coroner's Office admitted that they
ran a sloppy lab. So you have all that going
on during the time that Tony's case was making its
way through the court system in Cayahaga County.
Speaker 3 (11:17):
And of course this crime lab's dubious work will become
relevant later. But first, Tony, let's get back to the
investigation of your alibi. You had gone bar hopping. The
bars you went to that night, you were a bit
of a regular at and your whereabouts were accounted for
by the people who saw you all through the night.
Speaker 1 (11:37):
Oh yeah, these are people. I shrink withed these bars
and these people knew who I was, and as far
as them telling the cops that I was there at
the bar, that was no problem. As far as my
alibi went, I mean, I was where I said I was,
and then when I left one bar, went to the
next one within the time that it would have taken
normally to get from A to B. No hour delays
(11:59):
in between or nothing like that. There was no skipping.
So wherever I was that night, whatever bar I went to,
whatever time I got there and left, they know that
was all covered.
Speaker 3 (12:09):
So how did you get pulled into this?
Speaker 1 (12:11):
Well, I'll tell you, Jason. Here's what the homicide detectives
told me. My name came up in the investigation as
they were canvassing the neighborhood and I go downtown with
them and they start asking me questions. They tell me, well,
we're going to have to hold you. We want to
check your alibi. They kept me in jail that night.
Next day, they wondered if I would mind giving them
(12:33):
a blood sample. I'm like, yeah, no, I got no
problem with that. They take my blood, they want to
take some of my hair, hand my saliva, So I
give them all that and they're asking me do you
want a lawyer. You know, before we asked that I
don't need no loader. Man. You know, I'm cooperating one
hundred percent because I didn't do it. Then they'd asked,
can we go to your house and look at your clothes?
(12:53):
I'm like, yeah, okay, cool. See I'm not too upset
about why they're doing this because I am an extra con.
I did four years or one month for arm robbery.
I had it coming. I did my time, you know,
And they told me that right off the jump. Being
the next con made him look at me a little
harder than you know, average Joe. I say, okay, cool.
So they went to my house, they get most of
(13:14):
my clothes, and they keep me in jail another night.
Well the next day, by now i'm tested off. I'm
talking to Detective Zalor. I said, that's it. I'm ready
to go. He said, well, you know, we don't have
to charge you. We can hold you so many days.
You know, it was up that day. I said, this
is it, man, I'm going home. He said, well, let
me come back this afternoon. He said, I'm waiting on
the lab report. Anyhow, he come back about three three thirty,
(13:38):
got me out of the seth. So I leave, I
go home. I'm not thinking too much of it. I'm
just wondering when I'm going to get my clothes back,
because when I get home, I see they got most
of them gone. So, uh, maybe five days later, I
had a ticket that I had gotten a couple of
weeks earlier that I had to go to court for.
So I called down to Detective Zalor. I say, listen,
I'm going to be in court tomorrow. I want to
come pick up my clothes. He said, no problem. So
(14:00):
when I go down to go to court, he tells
me he wants me to come upstairs because he wanted
the corner to take a look at me. They take
me in the room. The corner comes in. They say, well,
they want to look at my tenis okay? So I
let her look. She looks at it and says, no,
this isn't it and leaves the room.
Speaker 6 (14:19):
Wait wait, why, well, I know what it is now.
There was this guy named Ronnie Shelton. He's called the
West Side Rapists. He was going around raping women all
over that area on the west side of Cleveland at
that time, and he had something wrong. I guess he
had some kind of scams and stuff on his dick
(14:39):
that they wanted to see if I had on mine,
And well, of course it wasn't me, so all.
Speaker 3 (14:44):
Right, So continue Was there anything else relevant about this
contact with Zala?
Speaker 1 (14:50):
I had called to ask about my clothes before I
went down to the traffic ticket. Just before he hung up,
he said, well, you know, Tony, you can still get
indicted for this. So I said, if that happened there,
give me a call.
Speaker 3 (15:05):
Then that conversation comes up later at trial when Detective
Salad gives it. Well, he gave a very misleading testimony.
But for now there's this indictment threat looming. But you're
not too worried because after all, your innocent weeks go
by and nothing happens until you were house sitting for
your in laws.
Speaker 1 (15:24):
So this is like October. Second. I come out to
the shower. My wife's in the shower. It's about noon.
The phone rings. Detective sealar, I need you to come down.
I want to talk to I said, yeah, well, you
know I told you everything. Man, I got no more
to add. He's like, no, no, Tony, I'm going to
have to hold you for trial. Man, I need you
to come down. I said, all right, all right, I said,
(15:46):
I'll be down a little while. I said, I'm going
to take my wife over to my mother's. I'm gonna
let him know what's going on, you know. So I said,
I don't want them to see on the news that
you rescue for this stuff, you know. And he said, yeah, okay,
no problem, just come on down later on this afternoon.
Up the phone. I'm thinking, you know, I never heard
no shit like this. This is bullshit. So I walk outside.
I figured the cops are out there. I just don't
(16:08):
want him busting through the door. I got my daughters
in their little bass of that there on the couch right.
My wife's in the shower. You know, if I really
am going to be on trial for some of a
crime like this, they got to be standing right out
there with shotgun. So I walk outside and there's nothing, nothing, nobody.
I stand there for a few minutes. Nothing. I go
(16:28):
back in the house, call a lawyer up and I
asked him to check out it. He called me back
and he said, wow, Tony, he said, you've been indicted. Man,
you're facing the electric chair. He asked me what I
was going to do. I said, well, you know, I'm
going on my mom's like I told him, And I'll
be down later on this afternoon, you know. I mean,
this was at noon or twelve thirty when he calls
(16:49):
me on the phone and arrests me for this terrible crime.
I mean, it's a terrible crime. There's no offenser. But
and he arrested me on the telephone. If you'll tell me,
I take my time coming down me so you know,
he's only six weeks old. I kissed my daughter, I
kissed my wife. Tell my brother Vince, you know, catch
you guys later, you know. And I went down to
the jail probably about four point thirty.
Speaker 3 (17:11):
I mean, I got to believe they knew that you
weren't really the rapist and murderer. Otherwise is the way
they behave this way.
Speaker 1 (17:19):
I'll tell you what he said. I get down there,
we go in this room, and I said, look, man,
why are you doing this to me? He said, I'm
not the one doing it. The prosecutor is the one
that got the indictment against you. I said, but what
I mean, man, And he says, and this is for sure,
never forget this. He said, well, Tony, and he said,
(17:40):
you know this is a high profile case, and there's
a lot of pressure on us to get somebody. You know,
all your alibi witnesses are drunks, and you look worse
than anybody else. I'm like, wow, man, that ain't right,
you know. He said, well, you know, he said, make
sure you demand a speed trial. They got to do
it with the ninety days. And I said, yeah, yeah,
what are you going to do about your business? I said,
(18:02):
trying to get it going? He says, you know, he
said they're going to drag your name through the mud.
And he said, you're not going to be able to
get work in his tile and believe I said, well,
maybe I go out to the suburbs. You know, that's
where my involves lived. I mean, this is the guy
who's locking me up on a charge of burglary, rape
and murder, the same one who arrested me on the telephone.
Speaker 3 (18:35):
The only evidence against him was purely circumstantial, definitely wrong place,
wrong time, he was painting the house. There was no
denying that he knew the victim. But that doesn't make
him guilty. A lot of people were in contact with
her that same day. That's not a basis on which
to convict somebody and sentence them to death, especially when
none of the rest of the evidence matched up. And
(18:55):
then the trial itself Dale, Now this is before you
got involved. It's so long ago. When did the trial
take place?
Speaker 4 (19:02):
December of nineteen eighty four, And the investigation that the
two lawyers representing Tony did to prepare for trial wasn't
as robust as it should have been. They went out
and spoke to a few of Tony's witnesses, but they
did not hire experts to look at the forensics. They
(19:23):
did not interview the detectives. They had a very cursory
interview with the people at the coroner's office.
Speaker 3 (19:31):
So without a thorough investigation, the prosecution was able to
pull a number of dirty tricks. And this tangled web
started really back when the autopsy was conducted.
Speaker 1 (19:42):
Right, Yes, there.
Speaker 4 (19:44):
Was a piece of hair that was found between her
bound hands behind her back, and that hair could only
be placed there by the person who assaulted mary Anne Flynn.
The hair was tested, it wasn't Tony's hair, it wasn't
mary Anne's hair, So the state had to come up
with an explanation for how the hair got there. The
(20:06):
evidence that the state presented a trial was that the
hair was lying on her open hand, which supported the
theory that the hair fell from someone's head, a Morgue
attendant one of the personnel at the crime scene. So
what the state argued to the jury was disregard the hair.
What we found out later is that the hair, as
(20:29):
I noted, was found between her bound hands behind her back.
Speaker 3 (20:33):
And this is just a beginning. I mean, they even
planted that scene in opening statements. But there's so much
more here to unpack, so go ahead, Dale.
Speaker 4 (20:43):
At trial, the state put on evidence that it swabbed
the victim's vagina, and that swab contained fluid deposited by
someone who had blood Type A and was a secretor,
and someone who is a secretor secretes antigens into their
bodily fluids. And the state put on evidence that Tony
(21:06):
was a Type A secretor, so he was likely to
be the perpetrator. What the state withheld was that Miss
Flynn was also an A type secretor, so that meant
that the fluids in Miss Flynn's body were just as
likely her own. Now that is the only physical evidence
that the state put on at trial. All the rest
(21:28):
of the evidence was circumstantial.
Speaker 3 (21:30):
So the detective gave misleading Well that's not even a
strong enough way of putting it, but they gave misleading testimony.
During the trial, right.
Speaker 4 (21:39):
The prosecutor asks Detective Zalor, did Tony ever make a
statement to you? And he said, Tony said to me,
when I'm indicted, can you let me know? The defense
asked for copies of notes. Detective said he didn't have
any notes at the time. The defense was not entitled
to the police reports. The defense lawyer made an objection.
(22:02):
The judge ordered the prosecutor to review the police reports.
Prosecutor did so and said, there is no report of
any oral statement that Tony made to detective Zalor. Well,
a couple of years later, when we made a Public
Records Act request, we found that type statement by Detective
Zalor where he wrote Tony said if I'm indicted, that
(22:27):
is critical? And why is when important? Because during the
closing arguments the prosecutor hammered on those words and said,
this proves he had a guilty mind.
Speaker 3 (22:43):
If I'm indicted. When I'm indicted, it's actually kind of
terrifying to think that the substitution of that one little
word could have made such a huge difference in the
outcome of this case. What was your say of things
while the jury was deliberating.
Speaker 1 (23:03):
I totally expected to be found that guilty. I mean,
I didn't do it, you know. I look, I did time.
I copped out. I had aggravator robberts. I copped out.
I went to clue that I did my time. Get
you commit a crime, you make a deal. Man. In
this case, there's no deal making here. I didn't do it.
Speaker 3 (23:23):
But they took whatever they could muster and whatever they
could tide to tell their story, and the jury bought it.
Lock Stock and Barrel. What was that moment like when
they found you guilty?
Speaker 1 (23:36):
When their judge that guilty, I slammed my hand. It
wasn't a conscious thing I did. It was just a reaction.
I slammed my hand on the table and I said,
that's bullshit. They pulled the jury and they were asking
the jury, you know, is this your verdic conditioner called
twelve of them, And as they're doing it, I kept saying, no, man,
it's bullshit at any right, and.
Speaker 3 (23:58):
Dale, this is a laundry list crimes that he was
convicted of.
Speaker 4 (24:02):
Tony was convicted of aggravated murder, aggravated burglary, two counts
of rape. What's interesting about the rape counts is that
they were carbon copy counts, meaning the state said count
one of rape vaginal and or oral rape, second count
of rape vaginal and or oral rape. So we don't
(24:26):
have a distinction between the vaginal rape and the oral rape.
And this becomes critical later on in post conviction litigation.
Speaker 3 (24:37):
Tony was sentenced to fifteen to twenty five years for
the burglary and rape counts for a summer of forty
five to seventy five years, and he received a death
sentence for the murder charge. Can you talk about I
mean death row, It's it conjures up really everyone's worst nightmares.
Speaker 1 (24:53):
Back then. They took me straight to Lucasville Penitentiary where
death row was, and they put me right there in
the cell on death row. Death row is not like
being in prison. It's a whole different expanse ten times
worse than prison. You know, I'm not going to the
pro board and going home next week because I stole
a car. These people are going to kill me if
I don't get back out. In nineteen eighty nine, the
(25:29):
federal court on a rape pace in Florida ruled that
DNA evidence is sound scientific evidence and can be used
to show a person committed a crime or not. Immediately.
Tom Shaw has seen my trial lawyer fil devotion requesting
DNA testing.
Speaker 3 (25:47):
Then nineteen eighty nine and attorney for Tony requested files
from the Flynn autopsy. At that time, the vaginal and
oral slides could not be located. They were assumed to
have been destroyed. But nineteen ninety one is when you
got involved there, right, And this is when the three
slides were magically located.
Speaker 4 (26:07):
In nineteen ninety one, Forensic Science Associates, at the request
of the Cayahaga County Corner's Office, conducted DNA testing. I
found out about the three slides in nineteen ninety two
when I got a phone call from the county prosecutor saying,
we found these three slides. Now we would like some
(26:29):
of Tony's blood to compare it to the slides. These
are the same people who withheld evidence. This is the
same county where the coroner's office was a sloppy lab.
This is the same police department where the detective lied
on the stand. We need to be damn sure we
know where these slides came from. When we start digging
(26:53):
into it, what we learned is that all slides are
marked with the county corner case number. In Tony's case,
it was one nine zero seven three seven something like that.
There was one slide that was marked L nine zero,
so it was misnumbered, and that slide turned out to
(27:15):
be an important slide. And I resisted providing a DNA
sample from Tony for testing because I was concerned about
the chain of custody of those slides.
Speaker 3 (27:27):
And there's a bit of a twisted history about these
three slides. So KaiA Hogan County first denied the existence
of these three slides in nineteen eighty nine. Then in
nineteen ninety one they magically find the slides, the missing slides.
There's three of them. Two are marked properly as Dale mentioned,
one vaginal and one oral, but the other one is
supposed to be an oral slide and is not marked properly,
(27:51):
the L nine zero slide that Dale mentioned. In nineteen
ninety one, a lab called Forensic Science Associates was tasked
with developing DNA profiles from all three slides, and with
the available technology, and methods, was only able to develop
a testable male DNA profile from the oral slide marked
L nine zero. Now, Kuyahoga County had Tony's blood, hair,
(28:14):
and saliva samples that he had provided during the investigation,
but for whatever reason, those samples were not available to
FSA for comparison. Dale rightfully had serious concerns about the
chain of custody and so he denied access to a
new DNA sample from Tony. So the L nine zero
slide sat in a freezer until two thousand and six,
(28:36):
when FSA used the most current technology and methods to
test it, and in two thousand and seven, a federal
district court ordered that Tony provide a sample for comparison
to L nine zero. So a report is generated and
the prosecution says that Tony couldn't be excluded as a contributor.
But for some strange reason, this report never makes it
(29:00):
into evidence. And you'd think, with how furtherly the state
is trying to hang onto the conviction, that a report
like that would have been the centerpiece of post conviction.
Speaker 4 (29:10):
The state never presented those reports to either the federal
court or the state court. During the fourth post conviction hearing.
What the state did was simply waived around these reports,
but they never offered those reports into evidence. When we
tried to take depositions of the folks from FSA who
(29:35):
did the testing and generated the reports, the state prevented
us from doing so and told the judge that they
were not going to present these reports. So all of
this information about this oral slide and whatever test results
the state has has never been tested through the adversary process.
(29:57):
None of the people who generated these documents have testified
under oath, and they have not been subject to the
rigorous scientific scrutiny before something like this is introduced into evidence.
So bottom line, the oral slide is not evidence.
Speaker 3 (30:18):
If this was really something that could have hurt Tony,
I'm gonna speculate here, but I mean, it seems pretty
obvious they would have admitted it as evidence. They have
had so many opportunities to do so, but they've declined
every single time. So that brings us to two thousand
and nine, when Dale and the team found out that
back in two thousand, an assistant prosecutor requested that the
(30:39):
Cayahaga County Coroner's office test the two remaining properly labeled
vaginal and oral slides that had previously not yielded a
DNA profile.
Speaker 4 (30:49):
We were preparing for a hearing in the Habeas Corpus case,
and the judge allowed for some discovery and one of
the people that we deposed was the corner from Cayahaga County.
She brought documents that we had subpoenaed and we first
learned that in two thousand, the state did another test,
(31:11):
got results, didn't share those results with us, And in
twenty twelve we went back to state court for the
fourth time and had a hearing on that evidence that
was tested in two thousand.
Speaker 3 (31:26):
So twenty fourteen, the defense expert, doctor Rick Staub, was
able to prove conclusively that Tony could be excluded as
a contributor to the vaginal slide and that two unknown
male contributors were in fact present. So Tony was acquitted
of the vaginal rape charge quitted and the second count
(31:46):
of rape was dismissed on the grounds that it lacked specificity.
Speaker 1 (31:50):
And it was one year later, March sixth, twenty sixteen,
when your appeals court three to zero they all three agreed, yes,
it ain't proved I was innocent and I got out
that day.
Speaker 3 (32:03):
Okay, go to that moment if you can.
Speaker 1 (32:05):
Oh man, I've always been waiting for this moment to happen.
And my daughter, Elena, the one that I kissed goodbye
when I went and turned myself in. She came out
with two of my grandchildren, my granddaughter Raina and grandson Navan.
Oh Man, first time I got to see them in person.
You know, I called my well, my wife now Beth.
(32:27):
I got a hold of her. I let her know
I'm I'm home.
Speaker 3 (32:29):
So tell us about your wife, Beth? How did that
all develop?
Speaker 1 (32:33):
I've known her like twenty some years, you know, she
was visiting me in prison and everything. I mean, I've
been in love with that woman for many years. I mean,
I knew that I was going to get out someday,
and we had, you know, decided when I got out,
then we'll see if we're going to have a relationship,
you know, and if we can have one, because you know,
(32:53):
I'm like a lab experiment all the years, like them.
So her and the kids would come over several times
a week, you know. When I first got home. Finally,
I said, I don't know what we're waiting for. I said, babe,
you know I love you. And she's like, you know,
I love you too, And I said, so, you know
we're old. What are we waiting for. Let's get married. Man.
(33:14):
I just spent my life locked up. I want to
live and she's like, okay, then I got two granddaughters
that you're going to have to raise. And I'm like, Mabe,
I got no problem. I didn't get a chance to
raise my kids. Now I'm getting a second chance at life.
Speaker 3 (33:27):
I'm sure everyone's wondering, Okay, so why in God's name
is he calling us from death row?
Speaker 4 (33:33):
Well, the state appealed to the Ohio Supreme Court. What
the Ohio Supreme Court determined was that under the Ohio
DNA Testing Statute that in order for a death row
prisoner to get an evidentiary hearing on the issue of DNA,
(33:53):
the prisoner has to make the request for the testing.
What happened here is the state did the testing in
two thousand, kept it from us until two thousand and nine,
and in twenty twelve through twenty fourteen, we present evidence
that Tony is excluded as the person who committed the
(34:15):
rape in a single assailant homicide. And what the Ohio
Supreme Court did was it put form over substance. Because
Tony did not request the DNA testing, he was not
entitled to that hearing. So, in the Court's view, that
hearing where he was exonerated of the rape charges never existed.
Speaker 3 (34:39):
So you from your death Row cell were required to
have requested the DNA that the state had insisted didn't exist.
Speaker 1 (34:50):
That blew my mind. That next Friday, my wife she
asked me to make snac and cheese. My other stepdaughter
she just moved into a place she had no washer
and dryer. I went. I got to Washington dryer. Now
I gotta go pick the grand babies that were raising
Chloe and the Jay and I got to go pick
them up from school. I got to take the dog
to the vet. I gotta wash your dryer in the
back of the pickup truck. I'm doing normal stuff that
(35:13):
people do out there, you know, in life. You know,
I'm loving every minute of it. And I get out
of the truck and I'm heading to the porch, and
here come these six cars man Us Marshals jump out,
Highway patrol and Akron police. I went from my front
yard to death Row, just like that. Man, no facts change,
no evidence change, nothing changed. You don't get off death
(35:37):
row and go home for nothing. It's like I'm in
the Twilight zone, man, you know. I mean I wake
up every day and it's like, Wow, I can't I
just can't hardly understand what I'm doing here.
Speaker 3 (35:52):
Man, Tony, I can only say that this will not stand.
We will not allow this to stand. We're going to
just grow this movement and we're going to find a
way to help your team get you justice.
Speaker 1 (36:05):
Yeah. Law professor at Georgetown, Mark Howard, and three of
his students, they got interested in my case. They made
a documentary, and then they set up a website. I
guess they have a petition.
Speaker 3 (36:16):
Which is Justice for a Panovich dot com. Please go
visit the website when there's a petition on the page,
and there will be a link to it in our
episode bio. So please go there as well and shout
out to the students for their great work. So it's
now time for us to turn to the closing of
the show. This is the part of the show where,
(36:37):
first of all, thank our distinguished guests, Dale Base, Federal
Public Defender Advocate Extraordinaire Tony, thank you for being here
with us. Hang in there, buddy. We're going to bring
you home. And now I'm going to turn my microphone off,
kick back, close my eyes and listen. Dale you first,
(36:58):
and then Tony.
Speaker 4 (37:00):
Thank you, Jason. It's been almost thirty six years since
Tony was sentenced to death. Since then, as his case
moved through the levels of a pellet review, evidence that
the state withheld a trial began to seep out, the
secretor's status of the victim, other suspects, lies by police
(37:21):
and prosecutors uncovered. The problem was and still is that
this case, like all death penalty cases, moved through the system,
the courts put form over substance in decline to look
at the merits of the claims. What we have here
is a wrongful conviction. How do we know that? It's
(37:41):
because Tony is excluded from a rape in a case
where the state's theory is that there was a single assailant.
This doesn't make sense to me as a lawyer, and
may not make sense, but people need to understand that
the system is constructed this way. The system needs to
be fixed and we need to right this wrong. In
(38:02):
Tony's case, The team that has worked on this case
over the years, from my office, from Mark Devan's office,
from the law firm of Krol and Mooring, We're not
going to give up.
Speaker 3 (38:15):
Tony over to you.
Speaker 1 (38:17):
First of all, Jason, I want to thank you for
having me on your podcast and for giving me this
opportunity to tell my story. From the very beginning, I
said I was innocent. I didn't commit this crime. I
had no problem cooperating with the cops, giving them my hair,
blood saliva, answering all their questions. I'm innocent.
Speaker 6 (38:37):
Come on.
Speaker 1 (38:39):
Here I am. Thirty six years later, after being sent home,
being found innocent and sent home, I'm back on death
row on a technicality, amazing as it is, and I'm
still innocent. I didn't do this. All I want is
my day in court. That's it. Just what are they
afraid of? Let get a jury see all the evidence,
(39:01):
you know, and I'm confident. I have no doubt in
my mind that they'll find me not guilty. There's no
doubt because I didn't commit this crime, and I think
the evidence of faction. I don't know what I can
say or do to convince people of my innocence. You know,
I've been saying it for years. Just look at the evidence,
look at the facts, and again I say, I appreciate
(39:24):
having this opportunity, and Jason, you're doing a good job
here for society, and I appreciate everything that you're doing,
and I really appreciate what you're doing for me.
Speaker 3 (39:40):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcasts one
week early and ad free by subscribing to Lava for
Good Plus on Apple Podcasts. I want to thank our
production team, Connor Hall and Kathleen Fink, as well as
my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Cliber.
The music in this production was supplied by three time
(40:00):
OSCAR nominated composer Jay Ralph. Be sure to follow us
across all social media platforms at Lava for Good and
at Wrongful Conviction. You can also follow me on Instagram
at It's Jason Vlahm. Wrongful Conviction is a production of
Lava for Good Podcasts and association with Signal Company Number One.
Speaker 2 (40:16):
We have worked hard to ensure that all facts reported
in this show are accurate. The views and opinions expressed
by The individuals featured in this show are their own
and do not necessarily reflect those of Lava for Good
Hi.
Speaker 2 (00:05):
It's Connor Hall, senior producer for Wrongful Conviction with another
case update and behind the scenes insights. This one I'll
never forget Tony Panovitch, Ohio death penalty case. After this
came out, they ended up putting him in the hole.
I felt terrible about it. We don't ever want to
do harm. That's like our number one guiding light here
(00:28):
is we do no harm. And that was harm that
we did. Of course. I reached out to his attorney
Dale Base and he was like, Tony said he'd do
it again anyway, and he said, since then, you know,
life has been better in there because you know some
of the guards that they treat him a little bit better,
which I guess any kind of positive is welcome when
you're on death row. And another guiding principle that we
(00:49):
have here is you know, if we can help, we
will help. You know how much help are we actually
delivering here? You know, just a podcast, right, but I
wish other people have that as their guiding light, presidents
and governors. You know, if you'd listened to the one
we did about Billy Allen a couple of weeks ago,
I was talking about pardon powers and you know, I
(01:10):
made the plea to Ohio Governor Mike Dwine, who is
known to be against the death penalty. There's been an
unofficial moratorium on carrying out the death penalty during his term,
So I made a plea that he pleas act in
his final months in office to make that moratorium official.
Speaker 1 (01:28):
Somehow.
Speaker 2 (01:30):
That was June fourth, and just twelve days later, I
credit myself. Of course, I hope that's tripping with the
intended sarcasm, but my plea was answered. In part. Governor
Dwine made a statement calling on state legislators to abolish
the death penalty, and his reasoning, you know, he says that,
(01:52):
you know, he believes that it does nothing to deter
these kinds of crimes. That's the only reason, right. But
my plea has more to do with how little confidence
our legal system and those who operated inspire. We've covered
tons of innocent cases out of Ohio. Alexis Martin, Ruel,
Sailor Ricardo Gray, Marcus Blaylock, David Thorne, A shunt ay
(02:14):
and William Smith, David Smith, Chris Smith, Al Cleveland, Evan King,
Dean Gillispie, Raymond Allen Warren, Robert McClendon, Lewis Castillo Junior,
Eric Mish, Isaiah Andrews. While we didn't cover Isaiah Andrews,
he passed away before we got.
Speaker 3 (02:30):
A chance to.
Speaker 2 (02:31):
But there's so many people out of Ohio, Kevin Keith,
Gary Beeman, Dwayne Brooks, Derek Jamison, Chris Miller, Marcus Sapp.
I mean, Jesus, when you go to the innocentce Network conference,
half the people there are from like Ohio and Illinois.
And that might be just because you know, there's so
many pro bono lawyers to go around there and there
aren't in other places who have just as many problems.
(02:53):
And then you think about all the states that still
have an operational death row and how many of the
people must be innocent? I mean, Jason often asks death
penalty supporters, how many innocent people are you willing to
kill to keep this thing going? Are you willing to
be that sacrifice so that we can all feel tough
on crime? In Ohio? Loone death row cases we've covered
(03:16):
Joe Danbrosio, Elwood Jones, Ricky Jackson, Kwame Ajamu, Wilie Bridgeman,
all of whom are now free. And then there's so
many more that still remain there that we know about, right,
Tyron Noling, Jeffrey Wogenstahl, Keith Lamar, Tonya Panovitch. I'm knowing
that I a civilian, I can rattle off nine people
(03:40):
from Ohio's death row, knowing that in all likelihood there
are more. Wouldn't it seem necessary to just commute all
these prisoners off death row to life in prison? If
that's you know, as far as you're willing to go, right?
I mean, what if one of these innocent people on
death row was a friend or a family member, What
if it was you? Would you be willing to be
(04:01):
that sacrifice? I want you to think about this when
you're listening to Tony I Panovitch's story. He was in
nineteen eighty four rape and murder. The State's known for
decades that DNA testing of the crime scene evidence exonerates Tony,
Yet they first tried to hide it from him, then
they fought to keep it from being used in court,
(04:22):
and when it was finally presented showing two unknown male profiles,
Tony was finally set free in twenty sixteen, but the
state appealed that decision to the Ohio Supreme court arguing that, well,
he didn't order the DNA testing, he didn't request it.
That's the post conviction DNA testing statute is that it
(04:45):
has to be requested by the defendant, not the state.
He can't use that, so he was taken back to prison,
back to death row in twenty eighteen. That's our system
operating as it was designed, or as it was amended
along the way. Now since our coverage, bipartisan legislation has
(05:06):
been introduced at least twice to change the post conviction
DNA statute that led Tony back to death row, but
it never made it out of committee, and then his
clemency petition has stagnated because the parole board says, well,
it can't review it until there's an execution date. So
Tony needs to be on death's door to maybe then
(05:28):
have a bunch of political appointees, however corruptible they might be,
to consider his case and then pass along their recommendation
to the governor. Who knows when that will be. Meanwhile,
there is a man whose grandchildren would love to have
him around.
Speaker 3 (05:49):
It was the summer of nineteen eighty four. Tony Ipanovitch
was in the process of building his house painting business
on the west side of Cleveland. On August twenty third,
a woman named Mary Ann Flynn was beaten and strangled
to death. Authorities collected seamen from her body. Police soon
identified plenty of likely suspects, including a violent ex boyfriend,
(06:11):
an ex tenant who had been accused of rape, and
a few other men who had keys to her house,
as well as Tonya Panovitch, who had done some painting
for her earlier that summer, but Tony's whereabouts were entirely
accounted for. On the night of her murder, Tony was
perhaps too cooperative with police, refusing a lawyer, answering all
their questions and even voluntarily giving up hair, blood, and
(06:33):
saliva samples. He happened to have the same blood type
as fluid found at the scene, but the state presented
that piece of evidence without mentioning that miss Flynn had
that exact same blood type. The state hit evidence. The
detective lied on the stand, and in nineteen eighty four,
without DNA testing available to prove his innocence, Tony would
have to wait for that scientific advancement to free him
(06:56):
from his death sentence after thirty two years. But Remarkably,
his time on death Row didn't end there. This is
Wrongful Conviction with Jason Flamm. Welcome back to Wrongful Conviction
(07:22):
with Jason Flamm, and soon you'll be hearing the subject
of this episode, a man named Anthony Apanovich calling in
from death Row in Ohio, where he has been for
the better part of four decades for a crime he
didn't commit. With us on the show today is Dale Base,
a federal public defender who has been the lead lawyer
(07:44):
and staunch advocate for mister Ipanovich since nineteen ninety one,
probably before some of you were born, that's how long
he's been working on this case. So Dale, welcome back
to Wrongful Conviction.
Speaker 4 (07:56):
Thank you, Jason, it's good to be back.
Speaker 1 (07:58):
Hello.
Speaker 5 (07:59):
This is a pay debit call from Tony, an inmate
at the Chilla Coffee Correctional Institution. To accept this call,
Press zero, thank you for using GTL.
Speaker 1 (08:12):
They're ow.
Speaker 3 (08:13):
Hey, Tony, I'm happy to have you here with us,
but obviously I'm really sorry that it's under these circumstances.
Speaker 1 (08:19):
All Right, Thanks Jason, I appreciate that. I appreciate this
opportunity to tell my story.
Speaker 3 (08:25):
Now, Tony, I want to go back to before any
of this happened. You grew up in Ohio, right, Oh.
Speaker 1 (08:31):
Yeah, yeah, I grew up on the east side of Cleveland.
You quit going to school in about about the eighth grade.
I just started working when I was twelve years old.
I like construction work, though I like working outside. I
was a truck driver for about five years. Then I
was trying to get a painting business started because I figured,
you know, the summer months, I could work outside painting,
(08:51):
and then in the winter months I would be able
to drive truck.
Speaker 3 (08:54):
And so this brings us to the summer of nineteen
eighty four. Two neighbors have both hired you to do
some painting, Mary An Flynn and the guy that lived
across the street. For her, you painted the outside bottom
half of Miss Flynn's house. Now she intended to paint
her window frames herself, and then you started working across
the street painting her neighbor's entire house. And that brings
(09:15):
us up to August twenty third, nineteen eighty four. You
noticed that she hadn't gotten to painting the windows yet
and tried to get a little more business for yourself.
Speaker 1 (09:24):
So when I seen her, I walked over. I asked
her if she wasn't going to be able to get
to those frames that I said she wanted, I could
get it done, you know, because the weather's changing. She said, well,
she'd let me know. I think I told her it
was going to be like sixty bucks or something to
paint them. So that was the last time I had
seen her or talked to her. It was around four thirty. Well,
went back across the street and we finished up the job.
Then then we headed to the bar. That's what I
(09:46):
did the rest of the night, you know, was bar
hopping in the neighborhood.
Speaker 3 (09:50):
So later that night, mary Ann Flynn was raped and
brutally murdered in her bedroom. She'd been strangled and severely beaten,
and seamen was found and collected from both her mouth
and her vagina.
Speaker 4 (10:03):
Yes, so Marianne's body was transported to the County Coroner's
office in Cuyahoga County, Okay.
Speaker 3 (10:12):
And I got to stop for a second because Kyahaga
County was notorious as one of, if not the most corrupt, disorganized,
disfunctional crime labs in the entire country at that time.
The police, prosecutors and the corner's office have all been
the subject of news articles, scandals, podcasts for being sloppy
(10:34):
or outright corrupt.
Speaker 4 (10:36):
And let me give you a couple of examples. Liliana
Segura with The Intercept, did some great reporting that documented
a pattern of misconduct in the Cayahaga County Prosecutor's office.
And in twenty eighteen, season three of the podcast serial
feature the Cleveland Police Department, the Prosecutor's office, and the
(10:57):
courts in Cayahaga County as being somewhat corrupt, and the
folks at the Cayahaga County Coroner's Office admitted that they
ran a sloppy lab. So you have all that going
on during the time that Tony's case was making its
way through the court system in Cayahaga County.
Speaker 3 (11:17):
And of course this crime lab's dubious work will become
relevant later. But first, Tony, let's get back to the
investigation of your alibi. You had gone bar hopping. The
bars you went to that night, you were a bit
of a regular at and your whereabouts were accounted for
by the people who saw you all through the night.
Speaker 1 (11:37):
Oh yeah, these are people. I shrink withed these bars
and these people knew who I was, and as far
as them telling the cops that I was there at
the bar, that was no problem. As far as my
alibi went, I mean, I was where I said I was,
and then when I left one bar, went to the
next one within the time that it would have taken
normally to get from A to B. No hour delays
(11:59):
in between or nothing like that. There was no skipping.
So wherever I was that night, whatever bar I went to,
whatever time I got there and left, they know that
was all covered.
Speaker 3 (12:09):
So how did you get pulled into this?
Speaker 1 (12:11):
Well, I'll tell you, Jason. Here's what the homicide detectives
told me. My name came up in the investigation as
they were canvassing the neighborhood and I go downtown with
them and they start asking me questions. They tell me, well,
we're going to have to hold you. We want to
check your alibi. They kept me in jail that night.
Next day, they wondered if I would mind giving them
(12:33):
a blood sample. I'm like, yeah, no, I got no
problem with that. They take my blood, they want to
take some of my hair, hand my saliva, So I
give them all that and they're asking me do you
want a lawyer. You know, before we asked that I
don't need no loader. Man. You know, I'm cooperating one
hundred percent because I didn't do it. Then they'd asked,
can we go to your house and look at your clothes?
(12:53):
I'm like, yeah, okay, cool. See I'm not too upset
about why they're doing this because I am an extra con.
I did four years or one month for arm robbery.
I had it coming. I did my time, you know,
And they told me that right off the jump. Being
the next con made him look at me a little
harder than you know, average Joe. I say, okay, cool.
So they went to my house, they get most of
(13:14):
my clothes, and they keep me in jail another night.
Well the next day, by now i'm tested off. I'm
talking to Detective Zalor. I said, that's it. I'm ready
to go. He said, well, you know, we don't have
to charge you. We can hold you so many days.
You know, it was up that day. I said, this
is it, man, I'm going home. He said, well, let
me come back this afternoon. He said, I'm waiting on
the lab report. Anyhow, he come back about three three thirty,
(13:38):
got me out of the seth. So I leave, I
go home. I'm not thinking too much of it. I'm
just wondering when I'm going to get my clothes back,
because when I get home, I see they got most
of them gone. So, uh, maybe five days later, I
had a ticket that I had gotten a couple of
weeks earlier that I had to go to court for.
So I called down to Detective Zalor. I say, listen,
I'm going to be in court tomorrow. I want to
come pick up my clothes. He said, no problem. So
(14:00):
when I go down to go to court, he tells
me he wants me to come upstairs because he wanted
the corner to take a look at me. They take
me in the room. The corner comes in. They say, well,
they want to look at my tenis okay? So I
let her look. She looks at it and says, no,
this isn't it and leaves the room.
Speaker 6 (14:19):
Wait wait, why, well, I know what it is now.
There was this guy named Ronnie Shelton. He's called the
West Side Rapists. He was going around raping women all
over that area on the west side of Cleveland at
that time, and he had something wrong. I guess he
had some kind of scams and stuff on his dick
(14:39):
that they wanted to see if I had on mine,
And well, of course it wasn't me, so all.
Speaker 3 (14:44):
Right, So continue Was there anything else relevant about this
contact with Zala?
Speaker 1 (14:50):
I had called to ask about my clothes before I
went down to the traffic ticket. Just before he hung up,
he said, well, you know, Tony, you can still get
indicted for this. So I said, if that happened there,
give me a call.
Speaker 3 (15:05):
Then that conversation comes up later at trial when Detective
Salad gives it. Well, he gave a very misleading testimony.
But for now there's this indictment threat looming. But you're
not too worried because after all, your innocent weeks go
by and nothing happens until you were house sitting for
your in laws.
Speaker 1 (15:24):
So this is like October. Second. I come out to
the shower. My wife's in the shower. It's about noon.
The phone rings. Detective sealar, I need you to come down.
I want to talk to I said, yeah, well, you
know I told you everything. Man, I got no more
to add. He's like, no, no, Tony, I'm going to
have to hold you for trial. Man, I need you
to come down. I said, all right, all right, I said,
(15:46):
I'll be down a little while. I said, I'm going
to take my wife over to my mother's. I'm gonna
let him know what's going on, you know. So I said,
I don't want them to see on the news that
you rescue for this stuff, you know. And he said, yeah, okay,
no problem, just come on down later on this afternoon.
Up the phone. I'm thinking, you know, I never heard
no shit like this. This is bullshit. So I walk outside.
I figured the cops are out there. I just don't
(16:08):
want him busting through the door. I got my daughters
in their little bass of that there on the couch right.
My wife's in the shower. You know, if I really
am going to be on trial for some of a
crime like this, they got to be standing right out
there with shotgun. So I walk outside and there's nothing, nothing, nobody.
I stand there for a few minutes. Nothing. I go
(16:28):
back in the house, call a lawyer up and I
asked him to check out it. He called me back
and he said, wow, Tony, he said, you've been indicted. Man,
you're facing the electric chair. He asked me what I
was going to do. I said, well, you know, I'm
going on my mom's like I told him, And I'll
be down later on this afternoon, you know. I mean,
this was at noon or twelve thirty when he calls
(16:49):
me on the phone and arrests me for this terrible crime.
I mean, it's a terrible crime. There's no offenser. But
and he arrested me on the telephone. If you'll tell me,
I take my time coming down me so you know,
he's only six weeks old. I kissed my daughter, I
kissed my wife. Tell my brother Vince, you know, catch
you guys later, you know. And I went down to
the jail probably about four point thirty.
Speaker 3 (17:11):
I mean, I got to believe they knew that you
weren't really the rapist and murderer. Otherwise is the way
they behave this way.
Speaker 1 (17:19):
I'll tell you what he said. I get down there,
we go in this room, and I said, look, man,
why are you doing this to me? He said, I'm
not the one doing it. The prosecutor is the one
that got the indictment against you. I said, but what
I mean, man, And he says, and this is for sure,
never forget this. He said, well, Tony, and he said,
(17:40):
you know this is a high profile case, and there's
a lot of pressure on us to get somebody. You know,
all your alibi witnesses are drunks, and you look worse
than anybody else. I'm like, wow, man, that ain't right,
you know. He said, well, you know, he said, make
sure you demand a speed trial. They got to do
it with the ninety days. And I said, yeah, yeah,
what are you going to do about your business? I said,
(18:02):
trying to get it going? He says, you know, he
said they're going to drag your name through the mud.
And he said, you're not going to be able to
get work in his tile and believe I said, well,
maybe I go out to the suburbs. You know, that's
where my involves lived. I mean, this is the guy
who's locking me up on a charge of burglary, rape
and murder, the same one who arrested me on the telephone.
Speaker 3 (18:35):
The only evidence against him was purely circumstantial, definitely wrong place,
wrong time, he was painting the house. There was no
denying that he knew the victim. But that doesn't make
him guilty. A lot of people were in contact with
her that same day. That's not a basis on which
to convict somebody and sentence them to death, especially when
none of the rest of the evidence matched up. And
(18:55):
then the trial itself Dale, Now this is before you
got involved. It's so long ago. When did the trial
take place?
Speaker 4 (19:02):
December of nineteen eighty four, And the investigation that the
two lawyers representing Tony did to prepare for trial wasn't
as robust as it should have been. They went out
and spoke to a few of Tony's witnesses, but they
did not hire experts to look at the forensics. They
(19:23):
did not interview the detectives. They had a very cursory
interview with the people at the coroner's office.
Speaker 3 (19:31):
So without a thorough investigation, the prosecution was able to
pull a number of dirty tricks. And this tangled web
started really back when the autopsy was conducted.
Speaker 1 (19:42):
Right, Yes, there.
Speaker 4 (19:44):
Was a piece of hair that was found between her
bound hands behind her back, and that hair could only
be placed there by the person who assaulted mary Anne Flynn.
The hair was tested, it wasn't Tony's hair, it wasn't
mary Anne's hair, So the state had to come up
with an explanation for how the hair got there. The
(20:06):
evidence that the state presented a trial was that the
hair was lying on her open hand, which supported the
theory that the hair fell from someone's head, a Morgue
attendant one of the personnel at the crime scene. So
what the state argued to the jury was disregard the hair.
What we found out later is that the hair, as
(20:29):
I noted, was found between her bound hands behind her back.
Speaker 3 (20:33):
And this is just a beginning. I mean, they even
planted that scene in opening statements. But there's so much
more here to unpack, so go ahead, Dale.
Speaker 4 (20:43):
At trial, the state put on evidence that it swabbed
the victim's vagina, and that swab contained fluid deposited by
someone who had blood Type A and was a secretor,
and someone who is a secretor secretes antigens into their
bodily fluids. And the state put on evidence that Tony
(21:06):
was a Type A secretor, so he was likely to
be the perpetrator. What the state withheld was that Miss
Flynn was also an A type secretor, so that meant
that the fluids in Miss Flynn's body were just as
likely her own. Now that is the only physical evidence
that the state put on at trial. All the rest
(21:28):
of the evidence was circumstantial.
Speaker 3 (21:30):
So the detective gave misleading Well that's not even a
strong enough way of putting it, but they gave misleading testimony.
During the trial, right.
Speaker 4 (21:39):
The prosecutor asks Detective Zalor, did Tony ever make a
statement to you? And he said, Tony said to me,
when I'm indicted, can you let me know? The defense
asked for copies of notes. Detective said he didn't have
any notes at the time. The defense was not entitled
to the police reports. The defense lawyer made an objection.
(22:02):
The judge ordered the prosecutor to review the police reports.
Prosecutor did so and said, there is no report of
any oral statement that Tony made to detective Zalor. Well,
a couple of years later, when we made a Public
Records Act request, we found that type statement by Detective
Zalor where he wrote Tony said if I'm indicted, that
(22:27):
is critical? And why is when important? Because during the
closing arguments the prosecutor hammered on those words and said,
this proves he had a guilty mind.
Speaker 3 (22:43):
If I'm indicted. When I'm indicted, it's actually kind of
terrifying to think that the substitution of that one little
word could have made such a huge difference in the
outcome of this case. What was your say of things
while the jury was deliberating.
Speaker 1 (23:03):
I totally expected to be found that guilty. I mean,
I didn't do it, you know. I look, I did time.
I copped out. I had aggravator robberts. I copped out.
I went to clue that I did my time. Get
you commit a crime, you make a deal. Man. In
this case, there's no deal making here. I didn't do it.
Speaker 3 (23:23):
But they took whatever they could muster and whatever they
could tide to tell their story, and the jury bought it.
Lock Stock and Barrel. What was that moment like when
they found you guilty?
Speaker 1 (23:36):
When their judge that guilty, I slammed my hand. It
wasn't a conscious thing I did. It was just a reaction.
I slammed my hand on the table and I said,
that's bullshit. They pulled the jury and they were asking
the jury, you know, is this your verdic conditioner called
twelve of them, And as they're doing it, I kept saying, no, man,
it's bullshit at any right, and.
Speaker 3 (23:58):
Dale, this is a laundry list crimes that he was
convicted of.
Speaker 4 (24:02):
Tony was convicted of aggravated murder, aggravated burglary, two counts
of rape. What's interesting about the rape counts is that
they were carbon copy counts, meaning the state said count
one of rape vaginal and or oral rape, second count
of rape vaginal and or oral rape. So we don't
(24:26):
have a distinction between the vaginal rape and the oral rape.
And this becomes critical later on in post conviction litigation.
Speaker 3 (24:37):
Tony was sentenced to fifteen to twenty five years for
the burglary and rape counts for a summer of forty
five to seventy five years, and he received a death
sentence for the murder charge. Can you talk about I
mean death row, It's it conjures up really everyone's worst nightmares.
Speaker 1 (24:53):
Back then. They took me straight to Lucasville Penitentiary where
death row was, and they put me right there in
the cell on death row. Death row is not like
being in prison. It's a whole different expanse ten times
worse than prison. You know, I'm not going to the
pro board and going home next week because I stole
a car. These people are going to kill me if
I don't get back out. In nineteen eighty nine, the
(25:29):
federal court on a rape pace in Florida ruled that
DNA evidence is sound scientific evidence and can be used
to show a person committed a crime or not. Immediately.
Tom Shaw has seen my trial lawyer fil devotion requesting
DNA testing.
Speaker 3 (25:47):
Then nineteen eighty nine and attorney for Tony requested files
from the Flynn autopsy. At that time, the vaginal and
oral slides could not be located. They were assumed to
have been destroyed. But nineteen ninety one is when you
got involved there, right, And this is when the three
slides were magically located.
Speaker 4 (26:07):
In nineteen ninety one, Forensic Science Associates, at the request
of the Cayahaga County Corner's Office, conducted DNA testing. I
found out about the three slides in nineteen ninety two
when I got a phone call from the county prosecutor saying,
we found these three slides. Now we would like some
(26:29):
of Tony's blood to compare it to the slides. These
are the same people who withheld evidence. This is the
same county where the coroner's office was a sloppy lab.
This is the same police department where the detective lied
on the stand. We need to be damn sure we
know where these slides came from. When we start digging
(26:53):
into it, what we learned is that all slides are
marked with the county corner case number. In Tony's case,
it was one nine zero seven three seven something like that.
There was one slide that was marked L nine zero,
so it was misnumbered, and that slide turned out to
(27:15):
be an important slide. And I resisted providing a DNA
sample from Tony for testing because I was concerned about
the chain of custody of those slides.
Speaker 3 (27:27):
And there's a bit of a twisted history about these
three slides. So KaiA Hogan County first denied the existence
of these three slides in nineteen eighty nine. Then in
nineteen ninety one they magically find the slides, the missing slides.
There's three of them. Two are marked properly as Dale mentioned,
one vaginal and one oral, but the other one is
supposed to be an oral slide and is not marked properly,
(27:51):
the L nine zero slide that Dale mentioned. In nineteen
ninety one, a lab called Forensic Science Associates was tasked
with developing DNA profiles from all three slides, and with
the available technology, and methods, was only able to develop
a testable male DNA profile from the oral slide marked
L nine zero. Now, Kuyahoga County had Tony's blood, hair,
(28:14):
and saliva samples that he had provided during the investigation,
but for whatever reason, those samples were not available to
FSA for comparison. Dale rightfully had serious concerns about the
chain of custody and so he denied access to a
new DNA sample from Tony. So the L nine zero
slide sat in a freezer until two thousand and six,
(28:36):
when FSA used the most current technology and methods to
test it, and in two thousand and seven, a federal
district court ordered that Tony provide a sample for comparison
to L nine zero. So a report is generated and
the prosecution says that Tony couldn't be excluded as a contributor.
But for some strange reason, this report never makes it
(29:00):
into evidence. And you'd think, with how furtherly the state
is trying to hang onto the conviction, that a report
like that would have been the centerpiece of post conviction.
Speaker 4 (29:10):
The state never presented those reports to either the federal
court or the state court. During the fourth post conviction hearing.
What the state did was simply waived around these reports,
but they never offered those reports into evidence. When we
tried to take depositions of the folks from FSA who
(29:35):
did the testing and generated the reports, the state prevented
us from doing so and told the judge that they
were not going to present these reports. So all of
this information about this oral slide and whatever test results
the state has has never been tested through the adversary process.
(29:57):
None of the people who generated these documents have testified
under oath, and they have not been subject to the
rigorous scientific scrutiny before something like this is introduced into evidence.
So bottom line, the oral slide is not evidence.
Speaker 3 (30:18):
If this was really something that could have hurt Tony,
I'm gonna speculate here, but I mean, it seems pretty
obvious they would have admitted it as evidence. They have
had so many opportunities to do so, but they've declined
every single time. So that brings us to two thousand
and nine, when Dale and the team found out that
back in two thousand, an assistant prosecutor requested that the
(30:39):
Cayahaga County Coroner's office test the two remaining properly labeled
vaginal and oral slides that had previously not yielded a
DNA profile.
Speaker 4 (30:49):
We were preparing for a hearing in the Habeas Corpus case,
and the judge allowed for some discovery and one of
the people that we deposed was the corner from Cayahaga County.
She brought documents that we had subpoenaed and we first
learned that in two thousand, the state did another test,
(31:11):
got results, didn't share those results with us, And in
twenty twelve we went back to state court for the
fourth time and had a hearing on that evidence that
was tested in two thousand.
Speaker 3 (31:26):
So twenty fourteen, the defense expert, doctor Rick Staub, was
able to prove conclusively that Tony could be excluded as
a contributor to the vaginal slide and that two unknown
male contributors were in fact present. So Tony was acquitted
of the vaginal rape charge quitted and the second count
(31:46):
of rape was dismissed on the grounds that it lacked specificity.
Speaker 1 (31:50):
And it was one year later, March sixth, twenty sixteen,
when your appeals court three to zero they all three agreed, yes,
it ain't proved I was innocent and I got out
that day.
Speaker 3 (32:03):
Okay, go to that moment if you can.
Speaker 1 (32:05):
Oh man, I've always been waiting for this moment to happen.
And my daughter, Elena, the one that I kissed goodbye
when I went and turned myself in. She came out
with two of my grandchildren, my granddaughter Raina and grandson Navan.
Oh Man, first time I got to see them in person.
You know, I called my well, my wife now Beth.
(32:27):
I got a hold of her. I let her know
I'm I'm home.
Speaker 3 (32:29):
So tell us about your wife, Beth? How did that
all develop?
Speaker 1 (32:33):
I've known her like twenty some years, you know, she
was visiting me in prison and everything. I mean, I've
been in love with that woman for many years. I mean,
I knew that I was going to get out someday,
and we had, you know, decided when I got out,
then we'll see if we're going to have a relationship,
you know, and if we can have one, because you know,
(32:53):
I'm like a lab experiment all the years, like them.
So her and the kids would come over several times
a week, you know. When I first got home. Finally,
I said, I don't know what we're waiting for. I said, babe,
you know I love you. And she's like, you know,
I love you too, And I said, so, you know
we're old. What are we waiting for. Let's get married. Man.
(33:14):
I just spent my life locked up. I want to
live and she's like, okay, then I got two granddaughters
that you're going to have to raise. And I'm like, Mabe,
I got no problem. I didn't get a chance to
raise my kids. Now I'm getting a second chance at life.
Speaker 3 (33:27):
I'm sure everyone's wondering, Okay, so why in God's name
is he calling us from death row?
Speaker 4 (33:33):
Well, the state appealed to the Ohio Supreme Court. What
the Ohio Supreme Court determined was that under the Ohio
DNA Testing Statute that in order for a death row
prisoner to get an evidentiary hearing on the issue of DNA,
(33:53):
the prisoner has to make the request for the testing.
What happened here is the state did the testing in
two thousand, kept it from us until two thousand and nine,
and in twenty twelve through twenty fourteen, we present evidence
that Tony is excluded as the person who committed the
(34:15):
rape in a single assailant homicide. And what the Ohio
Supreme Court did was it put form over substance. Because
Tony did not request the DNA testing, he was not
entitled to that hearing. So, in the Court's view, that
hearing where he was exonerated of the rape charges never existed.
Speaker 3 (34:39):
So you from your death Row cell were required to
have requested the DNA that the state had insisted didn't exist.
Speaker 1 (34:50):
That blew my mind. That next Friday, my wife she
asked me to make snac and cheese. My other stepdaughter
she just moved into a place she had no washer
and dryer. I went. I got to Washington dryer. Now
I gotta go pick the grand babies that were raising
Chloe and the Jay and I got to go pick
them up from school. I got to take the dog
to the vet. I gotta wash your dryer in the
back of the pickup truck. I'm doing normal stuff that
(35:13):
people do out there, you know, in life. You know,
I'm loving every minute of it. And I get out
of the truck and I'm heading to the porch, and
here come these six cars man Us Marshals jump out,
Highway patrol and Akron police. I went from my front
yard to death Row, just like that. Man, no facts change,
no evidence change, nothing changed. You don't get off death
(35:37):
row and go home for nothing. It's like I'm in
the Twilight zone, man, you know. I mean I wake
up every day and it's like, Wow, I can't I
just can't hardly understand what I'm doing here.
Speaker 3 (35:52):
Man, Tony, I can only say that this will not stand.
We will not allow this to stand. We're going to
just grow this movement and we're going to find a
way to help your team get you justice.
Speaker 1 (36:05):
Yeah. Law professor at Georgetown, Mark Howard, and three of
his students, they got interested in my case. They made
a documentary, and then they set up a website. I
guess they have a petition.
Speaker 3 (36:16):
Which is Justice for a Panovich dot com. Please go
visit the website when there's a petition on the page,
and there will be a link to it in our
episode bio. So please go there as well and shout
out to the students for their great work. So it's
now time for us to turn to the closing of
the show. This is the part of the show where,
(36:37):
first of all, thank our distinguished guests, Dale Base, Federal
Public Defender Advocate Extraordinaire Tony, thank you for being here
with us. Hang in there, buddy. We're going to bring
you home. And now I'm going to turn my microphone off,
kick back, close my eyes and listen. Dale you first,
(36:58):
and then Tony.
Speaker 4 (37:00):
Thank you, Jason. It's been almost thirty six years since
Tony was sentenced to death. Since then, as his case
moved through the levels of a pellet review, evidence that
the state withheld a trial began to seep out, the
secretor's status of the victim, other suspects, lies by police
(37:21):
and prosecutors uncovered. The problem was and still is that
this case, like all death penalty cases, moved through the system,
the courts put form over substance in decline to look
at the merits of the claims. What we have here
is a wrongful conviction. How do we know that? It's
(37:41):
because Tony is excluded from a rape in a case
where the state's theory is that there was a single assailant.
This doesn't make sense to me as a lawyer, and
may not make sense, but people need to understand that
the system is constructed this way. The system needs to
be fixed and we need to right this wrong. In
(38:02):
Tony's case, The team that has worked on this case
over the years, from my office, from Mark Devan's office,
from the law firm of Krol and Mooring, We're not
going to give up.
Speaker 3 (38:15):
Tony over to you.
Speaker 1 (38:17):
First of all, Jason, I want to thank you for
having me on your podcast and for giving me this
opportunity to tell my story. From the very beginning, I
said I was innocent. I didn't commit this crime. I
had no problem cooperating with the cops, giving them my hair,
blood saliva, answering all their questions. I'm innocent.
Speaker 6 (38:37):
Come on.
Speaker 1 (38:39):
Here I am. Thirty six years later, after being sent home,
being found innocent and sent home, I'm back on death
row on a technicality, amazing as it is, and I'm
still innocent. I didn't do this. All I want is
my day in court. That's it. Just what are they
afraid of? Let get a jury see all the evidence,
(39:01):
you know, and I'm confident. I have no doubt in
my mind that they'll find me not guilty. There's no
doubt because I didn't commit this crime, and I think
the evidence of faction. I don't know what I can
say or do to convince people of my innocence. You know,
I've been saying it for years. Just look at the evidence,
look at the facts, and again I say, I appreciate
(39:24):
having this opportunity, and Jason, you're doing a good job
here for society, and I appreciate everything that you're doing,
and I really appreciate what you're doing for me.
Speaker 3 (39:40):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcasts one
week early and ad free by subscribing to Lava for
Good Plus on Apple Podcasts. I want to thank our
production team, Connor Hall and Kathleen Fink, as well as
my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Cliber.
The music in this production was supplied by three time
(40:00):
OSCAR nominated composer Jay Ralph. Be sure to follow us
across all social media platforms at Lava for Good and
at Wrongful Conviction. You can also follow me on Instagram
at It's Jason Vlahm. Wrongful Conviction is a production of
Lava for Good Podcasts and association with Signal Company Number One.
Speaker 2 (40:16):
We have worked hard to ensure that all facts reported
in this show are accurate. The views and opinions expressed
by The individuals featured in this show are their own
and do not necessarily reflect those of Lava for Good
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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