Which would seem like a subtle form of poetic justice -- except for the fact that Apanovitch may be innocent.
Apanovitch became the chief suspect in the murder of Mary Anne Flynn days after her body was found on August 24, 1984. In just three months, he was indicted, convicted on purely circumstantial evidence, and sentenced to death.
Sixteen years later, Apanovitch's case is still so fraught with questions that even those most convinced of his guilt -- prosecutors, the victim's family, a homicide detective -- remain puzzled by the lack of physical evidence linking him to the crime. They can't explain how he entered Flynn's house or what motivated him to murder her. Moreover, documents uncovered in the interim suggest that prosecutors withheld material evidence at his trial.
Now that 85 wrongfully convicted people have been set free from death rows across the country, the prospect of an innocent person dying at the hands of the state no longer seems remote. To help prevent that, anti-death-penalty activists scour legal records, searching for victims of injustice.
In Ohio, they've identified Apanovitch.
For 12 long minutes, Marty Flynn endures their handiwork -- a videotape produced to convince people that Apanovitch did not rape and murder his sister. Flynn's face reddens as Apanovitch's voice fills his living room. He shifts uncomfortably in his chair as the inmate gives his version of events, gesturing to the camera with shackled hands.
After the video ends, Flynn laments that his sister has faded from public memory, while Apanovitch has become the darling of anti-death-penalty activists. For those who remember Apanovitch in his prime, it's hard to imagine him becoming the darling of anybody -- much less a media-savvy 44-year-old who pleads his case with persuasive sincerity. And the harder his attorneys work at getting him a new trial, the more Flynn, who found his sister lying in her blood-drenched bed, must relive the nightmare of her death.
"These guys [Apanovitch's supporters] have had years to go through this case and find something to embroider into reasonable doubt," Flynn says.
The understandable emotions of a loving brother aside, Apanovitch's supporters have raised legitimate questions about his guilt. At the very least, the new evidence presents "residual doubt," meaning the prosecution may have proved that Apanovitch committed the crime beyond a reasonable doubt, but not beyond any doubt. To safeguard against the execution of innocent people, the Model Penal Code of the American Law Institute (and several states) prohibits the use of the death penalty unless the prosecution has proved the defendant guilty beyond any doubt.
That is not the law in Ohio, though legislation has been introduced to that effect. But from 1988 until 1997, the Ohio Supreme Court did use residual doubt as a relevant mitigating factor when considering the death penalty. It was the argument put forth by former Justice Herbert Brown, who wrote the minority opinion when the Apanovitch case came before the state's top court in 1987. Though he believed the evidence presented at the trial was sufficient to uphold Apanovitch's conviction, Brown strongly disagreed with the imposition of the death penalty.
"In this case," he wrote, "there is a substantial possibility that the defendant may not be guilty."
Two justices sided with Brown; the other four voted to uphold Apanovitch's conviction and death sentence. The author of the majority opinion, former Justice Craig Wright, says it is the only decision in 166 death-penalty cases that he has come to regret.
"After long reflection, I must express my agreement with Justice Herbert R. Brown's partial dissent," Wright wrote in a 1996 letter to the Ohio Parole Board. "There is no question that there is some "residual doubt' in this case, and had we had that doctrine, this case would have gone the other way. Mr. Apanovitch would not have to face the death penalty."
Apanovitch's current attorney, Dale Baich, has asked the U.S. Court of Appeals for a hearing in which he can present the new evidence unearthed since the conviction and ask for a new trial. So far, even prosecutors have been frustrated by the federal court's inaction.
"We're dismayed that the Sixth Circuit Court of Appeals has had this matter pending before it since 1997 without a decision," says Cuyahoga County Prosecutor Bill Mason through a spokesperson. "The district court and the Ohio courts have all affirmed Anthony Apanovitch's conviction. It is time for finality in this case."
As matters stand now, Apanovitch seems more likely to get an execution date than a new trial.
The state is not only fighting Baich's attempts to get an evidentiary hearing, it is tightly controlling Apanovitch's access to the media. Despite weeks of negotiations with the Ohio Department of Rehabilitation and Correction and the governor's office, Scene was denied a request to conduct an in-person interview with Apanovitch. DRC staff counsel James Guy offered no specific reason for the denial, other than vague "overriding interests."
Relying on legal technicalities to keep the new evidence out of court and denying Apanovitch access to the media, the state looks increasingly suspect. And it could look even worse at an execution. Unlike Wilford Lee Berry, the first man to be executed in Ohio since 1963, Apanovitch is no volunteer. He has maintained his innocence since the day he was arrested. And if he must die, he will not choose lethal injection, forcing the state to follow Ohio law and execute him in the electric chair -- the most dramatic and horrific form of capital punishment in the United States.
Unless the federal appeals court agrees to reexamine the Apanovitch case, the entire nation might have to watch the state of Ohio electrocute a potentially innocent man.
"A Real Soft Touch"
Mary Anne Flynn's photographs etherealize her. Her angelic face is framed by soft, red-lit brown curls, and her eyes are an expressive blue. Graceful and earthy at five-foot-eight, Flynn was the kind of woman who rarely wore makeup and dated men she met at church.
Flynn possessed an unusual contrast of worldliness and naïveté. She ran a virtual one-woman social service organization out of her home, preparing meals for the poor and trustingly taking in unwed mothers. At the same time, she had taught herself to ski in the Alps and was trailblazing her chosen field of midwifery in Cleveland.
Flynn did a stint with the army in Germany, where she served as an obstetrics nurse. When she returned to the States, she took a nursing job in Michigan, but soon grew frustrated with the limitations of the profession. So she moved to Scotland to get certified as a midwife.
Flynn came back to Cleveland in 1979 to be near her family and bought a duplex on Archwood, a decaying residential street in a marginal neighborhood not far from the zoo. It was close to her job at Metro Hospital, and she could rent out one side of the house. Her brother says the "shaky" working-class neighborhood, anchored by a half-dozen bars with names like the Ugly Broad and the Escape, worried him. But such apprehension was lost on his sister, who fell in love with the house right away.
Both at home and at work, Flynn functioned normally, even happily, surrounded by the less fortunate. Homes in her neighborhood were frequent targets of prowlers and thieves. At Metro, she delivered the babies of women who were often financially and emotionally destitute. Yet Flynn thrived in this environment, letting indigent patients stay with her and hiring a succession of neighborhood ne'er-do-wells to work on her house.
"She was a real soft touch," her brother says. "It was easy for people to take advantage of her."
Jackie Grzymala felt a special closeness to Flynn. A few months before her death, Flynn opened her back door to find a scared Grzymala, then only 19 years old, seven months pregnant, and beset with an incessant tingling in her hands. After a quick examination, Flynn diagnosed Grzymala with preeclampsia and sent her to a doctor.
"The doctor told me, "Your blood pressure is over 230. Your neighbor just saved your life,'" she recalls.
When Grzymala gave birth to a stillborn girl two months later, Flynn helped her recover. But even as the younger woman in the friendship, she always felt protective of 33-year-old Flynn.
"She was clearly out of her element down here," Grzymala says. "All she ever wanted to do was help people."
On the evening of August 23, Flynn went house-hunting in Cleveland Heights. She had decided to move closer to her brother and his young children, whom she visited often, and rent out both sides of the duplex. Flynn was also planning to adopt a baby from India and wanted young cousins close by.
After a stop at her brother's, Flynn returned home. According to a neighbor, she entered through the back door. He told police he saw her drive up between 10:30 and 11:30, though in testimony he changed the time to 10 p.m. Her tenants, Edward and Dianne McKinney, along with Dianne's brother and his girlfriend, were socializing in their living room. Dianne said she heard Flynn's front door slam at about 10 p.m. She thought it odd, because Flynn usually came and went through the back door.
Around midnight, Dianne's brother said he heard a loud thump from Flynn's side. Neither Dianne nor Edward mentioned it to police, though at the trial they testified to hearing "a loud bang" or "a thud" or "a heavy fall."
In a recent interview, Dianne said she rushed upstairs to check on the children. They were safe, so she rejoined the group. Her brother and his girlfriend left around 12:30 a.m., then she and her husband went to bed. That night, only a thin wall separated them from where their new landlord had been brutally raped, beaten, and strangled to death.
"A Particularly Brutal Murder"
When Flynn didn't report to work on August 24, her friend and co-worker Christine Schenk called Marty Flynn. They went to the house and found both her front and back doors locked. So they went in from McKinney's side, through an unlocked common door in the basement, and up into Flynn's kitchen. They walked through a deserted living room, dining room, and then up the stairs to the bedroom.
That's where Marty found his sister lying on her stomach, naked, her hands bound behind her with a strip of sheet. The bedroom was a mess of blood, stained sheets, and pieces of the wood used to beat her. Wood chips clung to Flynn's bloodied face and battered body.
"You should have seen the violence that occurred in that room," says Jack Bornfeld, one of several detectives who investigated the case. "It was almost palpable . . . We know she put up a hell of a struggle. [The killer] was really outraged and angry."
In a sequence detectives were never able to determine, Flynn was orally and vaginally raped, and savagely beaten about the face. At some point, her attacker bound her hands behind her back, looped a piece of sheet around her neck, and tied it to the bedpost, possibly as a way to force her movements. A sharp instrument, which was never found, was jabbed four inches into the back of her neck, leaving a Y-shaped gash in her skin as well as a tiny piece of wood. Despite the extensive external injuries to her neck, head, and body, Flynn died of strangulation, according to pathologist Elizabeth Balraj, then deputy coroner.
"It was a particularly brutal and violent murder," Bornfeld recalls. And a baffling one. Flynn was the closest thing to a murdered saint the Cleveland cops had ever seen. Yet Bornfeld denies the police were pressured to solve the case quickly, insisting that the investigation -- though relatively short -- was exhaustive. Still, the realities of the case suggest this particular murder got the wheels of justice spinning at top speed and, some say, out of control.
"They wanted this guy," recalls Mark Stanton, one of Apanovitch's court-appointed attorneys at the time. "They wanted him bad."
In the summer of 1984, Cleveland police were desperately pursuing leads in a spate of rapes, some of which happened near Flynn's neighborhood. As recounted in author James Neff's Unfinished Murder: The Capture of a Serial Rapist, detectives were searching for a man who was crawling through first-floor windows on the West Side and raping women at knifepoint. Since rape victims are sometimes reluctant to report the crime, police suspected the rapist of being even more prolific than they knew.
Because none of the rapes had ended in murder, Bornfeld says police ruled out any link to the Flynn case early on. The Plain Dealer followed the case closely, though, and public pressure to catch the murderer grew quickly -- particularly in the neighborhood, where Grzymala and another former neighbor, Rochelle Stoner, say women were deeply fearstruck by the tragedy. To this day, Grzymala keeps a mirror on her staircase, so she can check for intruders when she's upstairs alone.
In retrospect, some of the decisions made by the detectives in the Flynn investigation seem questionable. For instance, they allowed Flynn's tenants to dispose of her bloodied mattress and bedspread, even though they may have contained blood not found on the sheets and bedclothes. They also neglected to gather evidence that may have been left by the killer in the bathroom and the basement, defense attorneys discovered. Police did not check footprints in the basement, which was described by one tenant as dirty and dusty. Nor did they dust the doorknobs and fixtures in the bathroom for fingerprints, despite the suspicion that the killer may have gone there after the attack.
Standing water in the bathroom sink contained dirt and hair, a detective noted on the day Flynn's body was discovered. Yet the police did not collect it or the sink trap until two weeks after the murder -- and then, in a very odd manner. According to police records, Detective Anthony Zalar called one of the tenants and asked him to go into the victim's bathroom to do it. (Grzymala says she was the one who was called to collect the water and trap, which she gave to an officer who arrived at her house in a patrol car.)
Police records show no lack of suspects. Flynn had told friends she feared several different men, including a former tenant who showed up at her door one day with a gun and a former boyfriend who was reportedly "extremely violent." Another former tenant told police she was the victim of attempted rape three times while living on the other side of Flynn's duplex.
A cursory check of arrest records for suspects named in the Flynn investigation reveals the following: two convicted rapists, three drug abusers, two thieves, a drug trafficker, and a car thief. Charges filed against other suspects include gross sexual imposition, felonious assault, illegal possession of firearms, robbery, sexual battery, and receiving stolen property.
Police seized on the idea that the killer entered the house through an unlocked basement window on the tenant side, which anyone who had ever stayed in or worked on the duplex knew about. But there was a pile of seemingly undisturbed clutter beneath the window in question and no fingerprints on the window or other signs of entry through the basement. And Flynn had given out house keys to a number of people, including an exterminator and some of the pregnant women she took in.
Also troubling is a statement given by Flynn's former neighbor and friend, 21-year-old Rochelle Stoner, who claimed to have seen Flynn on her second-floor balcony earlier that evening with two dark-haired men. Although Stoner testified in court that she told police about it, the conversation wasn't recorded in police documents. An officer told her that she had seen tenant Eddie McKinney, his brother-in-law, and his girlfriend. So she didn't press the matter with a detective who talked to her the following day, and was excoriated on the stand in court.
As the years have passed, Stoner says she's become more convinced it was Flynn she saw that night.
"She [Flynn] was staring right at me," Stoner says. "One guy was standing behind her with his arms around her, and she just had this grim look. Fear. It's been bothering me all these years."
"The One Case That Haunts Me"
Out of all the possible suspects, the detectives' designee for Most Likely to Commit Murder was the neighborhood Casanova -- Anthony Apanovitch, then 29. Buff, tan, and often in the company of infatuated young women, Apanovitch spent whatever waking hours he wasn't hanging out in the local bars painting houses or driving trucks. A high school dropout, Apanovitch had little in common with the highly educated, well-traveled Flynn.
But that didn't stop him from asking her out. Flynn first met Apanovitch that summer, when she hired him to do one day's painting and handiwork. The propositioning -- which Apanovitch still denies -- started shortly thereafter. Flynn remarked to at least one friend that she found him attractive, but rebuffed his advances because he had a pregnant wife.
Grzymala remembers him being so persistent that Flynn asked her whether she should call the police. Certain that Apanovitch would eventually tire of being turned down, Grzymala advised against it.
"Apanovitch hit on everyone," she recalls. "He acted like he was going to enlighten you with his sex."
Detectives focused on Apanovitch after friends and neighbors told them that Flynn had mentioned she was having problems with a painter. Most identified him as having a pregnant wife. Police reasoned Apanovitch would know about the unlocked window, as well as the door in the basement that would provide access to Flynn's side. A receipt made out to Apanovitch on Flynn's kitchen table further convinced them Apanovitch was their man.
Even though they had no physical evidence linking him to the crime, police arrested him just four days after the murder. Apanovitch refused to take a lie-detector test, though he voluntarily supplied hair, blood, and saliva samples. He also allowed a doctor to examine his penis for telltale signs of forcible sex. (There were none.) After three days, Apanovitch was released.
A month later, police had gathered enough circumstantial evidence to arrest him again. Apanovitch was so certain that charges wouldn't stick, he called detectives when he heard they were looking for him. That's when he was told he had been indicted -- over the telephone. He turned himself in several hours later.
Apanovitch remembers one detective telling him there was a lot of administrative pressure to indict someone for the murder. "He said, "It's a high-profile case, and there's a lot of heat to solve it. You look worse than anybody, because your witnesses are all drunks, and you're an ex-con,'" Apanovitch says.
Apanovitch had served time in prison for aggravated robbery and grand theft. In 1976, he was found guilty of rape. That conviction was overturned on appeal, and he pleaded guilty to a lesser charge of sexual battery. But his criminal history certainly hurt him -- in the early stage of the investigation, through the trial, and afterward. At trial, a prosecutor alluded to the fact that he had been in prison, and detectives told jurors about his record after they returned the death sentence.
On his informational video, titled "A Second Look" and narrated by M*A*S*H star Mike Farrell, Apanovitch describes the only interaction he admits to having with Flynn on the last afternoon of her life.
"That afternoon, between four and four-thirty, she came out of her house and into the backyard, and I seen her, hollered at her, and went across the street to ask her about finishing painting the window frames, because that was the one thing she didn't contract me to do . . . We talked for about 10 minutes. She said she's going to do them herself. But with the cold weather coming on, if she didn't, she would let me know, and I could do them for her. And that was the last time I saw her. I went back across the street. We finished up the job, me and Dawson. And I headed out to the bar -- Pinky's Bar."
Police believe that, later that night, Apanovitch returned to Flynn's house and killed her -- after beating her with parts of her window.
That version of events unfolded in December 1984, when Common Pleas Judge Francis E. Sweeney's courtroom became the type of setting that inspires legal dramas and caricature artists. Taking the witness stand were nurses and go-go dancers, weeping women and hardened detectives, drunks and medical experts, housewives and homebreakers. The character of the neighborhood bars was evident in one woman who paraded through the courthouse wearing the word "Slut" emblazoned on her shirt, and another who educated the jury on the finer points of "exotic dramatistic dancing."
The trial pitted County Prosecutor Jack Harlan Hudson against the self-proclaimed "F.W. Woolworth" of Cleveland's legal arena, Thomas Shaughnessy. Before he died in 1997, Shaughnessy reportedly pulled in about $80,000 a year from court-appointed cases, defending clients like Apanovitch -- poor and in big trouble. Speaking about the case on the Apanovitch videotape, Shaughnessy says he believed his client was innocent of Flynn's rape and murder.
"The single case that haunts me and that I think about every day is Tony Apanovitch," Shaughnessy says, his voice choking with regret. "And I'm part of the problem."
With only two months to prepare for trial, Apanovitch's two court-appointed attorneys, Shaughnessy and Stanton, and an investigator, Mark Angelotta, worked seven days a week trying to nail an alibi for him and patch together a successful defense. It was a daunting exercise, not least because of Apanovitch himself.
"There Was Prosecutorial Misconduct"
Apanovitch's life in the summer of 1984 was an alcohol-blurred mess of legal, financial, and marital woes. He got in fights. He slept around. A few days before Flynn was murdered, the cops impounded his car because he had been drinking and driving.
"I was a drinker and a fighter," Apanovitch admits. "I didn't have a whole lot of friends."
Apanovitch didn't help his fledgling painting business, or his pregnant wife, by passing much of his time in neighborhood bars with his blue-collar buddies, the likes of whom still down Millers and patronize the automated bowling machine at Pinky's. Happy-hour patrons look like extras in a Def Leppard video. As the afternoon light gives way to dusk, mullet-haired men in workboots and dirty jeans crack jokes about screwing each other's wives.
In that setting, the Flynn murder has become the stuff of local legend, and Apanovitch has metamorphosed into an evil, mythic figure. "Everyone thinks he did it," insists Grzymala, who grew up nearby.
If that's true, Apanovitch carried out a grisly rape and murder flawlessly, despite the fact he'd been drinking on and off since 9 a.m. If he did it, he left no blood, no fingerprints, not even a hair to link him to the crime. If he really did it, then Apanovitch was a highly skilled rapist and murderer for one night, and a total incompetent afterward.
To start, he gave detectives different times he was in certain bars that night. He also gave different versions about how he got a scratch on his cheek. To police, he said he was helping a drunk guy get his car started and was cut, either by the guy's broken beer bottle or the propped-up hood of his car. To his drinking buddies, he said he was in a fight and got scratched by either a knife or beer bottle, depending on the retelling. (The coroner couldn't determine if Flynn had scratched her attacker before she died, or what produced the mark on Apanovitch's cheek.)
After Apanovitch became a suspect, he asked people who were in the bars that night to remember they saw him. He waived his rights to an attorney several times during questioning by police, making various statements that were used against him in court.
At one point, he told Detective Zalar to call him "if" he was indicted, so he could break the news to his mother, who had heart trouble. Although that statement was recorded in a police report, Zalar testified he was sure Apanovitch had said "when," because, as he recalled, "It stunned me."
When Shaughnessy asked to see the police report, Hudson assured him it wasn't written down. It wasn't until 1992 that Apanovitch's attorneys got a copy of the report, in which Zalar had written the word "if."
Apanovitch may have been a difficult client, but he didn't lose the case for himself, according to Stanton. A former prosecutor, Stanton finds rehashing the case painful, judging from his visceral reaction to the mere mention of Apanovitch's name. He agreed to an interview only to take issue with some comments that were attributed to him at a death-penalty seminar in 1998. But once he starts talking, Stanton expounds on the case for nearly an hour.
Though he clearly does not like Apanovitch, Stanton believes his former client did not receive a fair trial, citing key rulings issued by Sweeney and exculpatory evidence withheld by the prosecutor.
Sweeney, whom Stanton speaks of highly as a trial judge otherwise, allowed several of Flynn's friends to talk about her "fear" of Apanovitch during their testimony.
"That's hearsay," Stanton says. "And the Ohio Supreme Court and the Court of Appeals were gutless in their opinions relative to that, because that changed the momentum of the case. She didn't do anything to indicate she was fearful of this fellow. She didn't make a police report. She didn't get a gun . . . She didn't do anything that would have indicated objectively that she had a fear of this man."
Stanton also believes Apanovitch faced a stacked jury. "We had a jury that was full of sharks," he says. "[After their deliberations,] they didn't just come out and not look at the defendant. They marched out. If they had boots, it would have been Gestapo-like. It was one of the most frightening things I'd ever seen."
Jack Hudson was another. Now retired, Hudson declined to be interviewed for this story. But before hanging up the telephone, he made his feelings about Apanovitch clear.
"He's guilty as hell," he barked.
Stanton believes Hudson is the guilty one. "Hudson was going to win the case no matter what," he says. "He withheld so many things from us, so many, many things."
Hudson used the testimony of Barbara Campbell, a trace evidence expert from the coroner's office, to explain away a hair found on the body that was neither Flynn's nor Apanovitch's. Campbell alternately said the hair was on the victim's palm or on "the back portion of the hand," and speculated that it could have fallen from someone who handled the body in transit.
But a different picture emerged in the investigative files obtained by Apanovitch's attorneys in 1992. Police records show that a black hair was found "behind the victim's tied hands." Coroner records verify that the hair was found "on the victim's back under her bound hands." In short, the actual placement suggested the hair fell on her back during the assault, not afterwards.
Along with the hair and wealth of suspects, the prosecution apparently also withheld the time of death. On the stand, the coroner testified it was sometime between midnight and 6 a.m. But in the records that were finally opened in 1992, the police were more specific, indicating in a letter to the FBI that the murder probably happened between 10:30 and midnight. Witnesses at the bars -- some of whom were drunk, however, and of questionable credibility -- told police they had seen Apanovitch during those times.
Many witnesses refused to talk or changed their testimony once they took the stand, leading Stanton to suspect they had been pressured by police or prosecutors. And then there was Howard Hammon.
Hammon shared a holding cell with Apanovitch. According to a 1994 affidavit, his attorney was approached during the trial by a county prosecutor, who wanted to know whether Hammon had heard Apanovitch make any statements relative to his case. Hammon initially told prosecutors he heard Apanovitch say, "I might have done it, but they'll never prove it."
By that time, the prosecution had already rested. But over the protestations of Stanton and Shaughnessy, Hammon was allowed to testify. On the stand, however, he told the jury Apanovitch's actual words were, "Jeez, they're trying to convict me on circumstantial evidence."
That didn't deter Hudson, who, in questioning Hammon, made sure to repeat his original statement. Hudson also threatened to indict Stanton for intimidating Hammon into recanting. Stanton suspected the prosecutor had offered Hammon a deal in exchange for his testimony -- and Hammon admits as much in his 1994 affidavit. After making his damning first statement, Hammon says, he was told by his attorney that another prosecutor assured him Hudson would "talk to the judge in my case and see what he could do for me."
"There was prosecutorial misconduct," Stanton insists. "There's no question in my mind there was. I knew it at the time."
Through a spokesperson, current County Prosecutor Bill Mason denies charges of misconduct. "It is our position, and has been since the day of trial, that Anthony Apanovitch received a fair trial," he says.
Though Apanovitch believes Shaughnessy and Stanton did their best under the circumstances, they have to take some of the blame too. In particular, they missed a crucial bit of forensic evidence that would have helped his case.
Hudson made much ado during the trial about Apanovitch's blood type being the same as that of the person who ejaculated inside the victim. This was no surprise to Stanton and Shaughnessy, who saw the report of trace expert Campbell before the trial. In it, she says the sperm found inside the victim's mouth was tested and determined to be "type A." Apanovitch was determined to be a "type A secretor" who may have deposited that sperm. During trial testimony, Campbell conceded that approximately 40 percent of the population is type A, and Shaughnessy was correct in stating that his client was one of approximately 340,000 males in the city of Cleveland with that blood type.
But what of Flynn? Campbell -- and, as it turns out, police and prosecutors -- knew that Flynn was also a "type A secretor." That information was recorded in Campbell's notes. But it was not revealed to Apanovitch's lawyers, who didn't raise the issue. When appellate lawyers for Apanovitch discovered this in 1988, Campbell amended her report to include the victim's secretor status. Then Apanovitch's lawyers asked forensic serologist Brian Wraxall to explain the significance of that evidence.
In his 1988 affidavit, Wraxall explained that the secretor status of the victim has a direct effect on whether the blood type of the perpetrator can be determined. The victim's saliva and vaginal secretions mix with the perpetrator's semen, often masking his blood type.
"In fact, no conclusions can be drawn regarding the ABO type or secretor status of the sperm donor," he concludes about Campbell's results.
That, combined with the placement of the hair on Flynn's back, would certainly have strengthened Apanovitch's defense. According to one juror, it might also have affected the verdict.
"The secretor status was heavily dwelt upon," recalls juror Loretta Stanko. "It's too bad this couldn't have been brought up earlier."
Juror Constance Hollis doesn't regret her decision. The prosecution had a strong case, she says, and Apanovitch's demeanor was that of a guilty man who didn't testify on his own behalf. Even Stanton remembers him being "hard to control." After the jury came in with a guilty verdict, Apanovitch pounded his fist on the table and exclaimed, "That's bullshit!"
Two weeks later, the same jury recommended that Apanovitch be put to death. "On March 1 of 1986, the warden is directed to cause a current of electricity to flow through your body until you are dead," Sweeney intoned. "God have mercy on your soul."
"Did You Ever Dye Your Hair?"
Apanovitch's hopes for staying alive lie primarily with Dale Baich, a former public defender from Ohio who is now an assistant federal public defender in Arizona. Baich's office decor -- seats from the old Cleveland stadium, pictures of legendary bluesmen, artwork from his clients on death row -- betrays his passions: blues, baseball, and most definitely, saving people from the death penalty.
It was Baich who disclosed former Justice Craig Wright's letter in a brief filed on December 8, sending out shock waves that reached the front page of The Plain Dealer and drew a supportive editorial. Anti-death-penalty activists, most notably Sam Reese Sheppard, have been pressuring the public to reexamine the case. Doubt about Apanovitch's guilt has even gripped the parishioners of St. Francis de Sales Catholic Church in Parma, 1,000 of whom recently signed a letter urging the governor to do the same.
St. Francis Associate Pastor Neil Kookoothe often writes and visits inmates on death row. He's also a lawyer who has reviewed the opinions issued in Apanovitch's case. "I think there is evidence that all the facts that need to be heard have not been heard," he says.
Convincing the public of that is easier than convincing the courts. "The law at this stage of the game is so restrictive," Baich says. "We could demonstrate that the government withheld evidence and misled the courts during the trial and appeal, but that may not matter."
The state has fought Baich on the legal principle of res judicata, which bars claims that either could have been raised or were raised and rejected in one court from being raised in another. The application of this principle to Apanovitch's case has been hotly debated. Baich says Apanovitch is being penalized because he didn't have evidence to which he was entitled during the early stages of his appeal. In fact, Apanovitch was not granted access to the homicide file until one year after he was to be executed on November 12, 1991.
The state has, however, for several years been offering Apanovitch one last opportunity to prove he's innocent -- if he provides a DNA sample that can be compared to the DNA of the sperm recovered from the victim. "If Anthony Apanovitch was truly innocent, he would have no doubt supplied a sample for DNA comparisons," says prosecutor Mason.
Apanovitch wanted to do just that. But in 1988 his attorneys were told that sperm samples from Flynn's mouth and vagina were "no longer in existence." Three years later, the coroner's office called Baich and told him the slides had been found, sent to a California lab and processed, and were ready for comparison to Apanovitch's sample. Wary about the scientific integrity of slides that suddenly reappeared at the bottom of a drawer, Baich consulted a DNA expert in Denver, who found that the slides were contaminated and cautioned him against submitting a sample from Apanovitch.
"To place any weight on this type of result is not only dangerous, in a case where the death penalty is being considered, but scientifically unsound," Dr. John Gerdes wrote in a 1993 affidavit. He has since been challenged by Dr. Edward Blake, who processed the slides for the state. Now one of the most renowned scientists in his field, Blake says Gerdes has a record of providing loopholes for defense attorneys trying to keep their clients' DNA out of the courtroom.
Either way, it's logical for Baich to be suspicious of the state's failure to contact him when the slides were first found, then use up all the available DNA in its testing. His argument seems to have swayed prosecutors, who are now determining whether an untested sample of the killer's sperm still exists. If it does, and Baich agrees to a comparison, today's technology could definitively determine whether Apanovitch raped Flynn. It could provide the physical evidence prosecutors lack.
Or it could be their Achilles' heel.
Baich has proposed another way to stop the haggling over the case -- investigate Ronnie Shelton, the "West Park Rapist," as a suspect.
When Shelton was finally arrested in 1988, Shaughnessy asked a common pleas court to compel the state to compare Shelton's hair and DNA to the hair and sperm found on Flynn. The motion was denied.
Once Baich reviewed transcripts from Shelton's trial, however, he resurrected the Shelton theory. Of the 32 incidents for which Shelton was indicted, six occurred within two miles of Flynn's home, either just before or after the day she was killed. In a letter to former Cuyahoga County Prosecutor Stephanie Tubbs Jones requesting the Shelton investigative file, Baich outlines the similarities between Shelton's modus operandi and that of Flynn's attacker.
"Shelton's victims were threatened, vaginally and orally raped, and had their clothing removed," he wrote. "Victims were beaten, choked, and surprised by Shelton late at night or early in the morning. The points of entry into the homes were either basement or first-floor windows, and Shelton used a knife or other sharp objects as a weapon."
Baich was encouraged by Flynn's former boyfriend, Mel Reckling, who has also pondered the Shelton theory. From the first time he saw light-brown-haired Apanovitch on television, Reckling doubted his guilt. He became convinced of the hair's significance when a detective questioned him after the murder.
"The first thing the cops asked me was "Did you ever dye your hair?'" recalls the red-haired Reckling.
Shelton has dark hair, like the one found on Flynn's body. And after plowing through the transcripts of both cases, Reckling was bothered by the same similarities that struck Baich. He called Shelton prosecutor Tim McGinty and wrote letters to an FBI profiler and to former Ohio Attorney General Lee Fisher, telling him, "I have been haunted for nearly 10 years with my sense of uneasiness with the whole Apanovitch situation."
The attempt by Apanovitch supporters to pin Flynn's murder on Shelton has reached him at the Trumbull Correctional Institution, where he is serving so many years that it's unlikely he'll ever be paroled. But when confronted about the rape-murder, Shelton is adamant.
"I'm not capable of murder," he says. "Tell them I'm willing to give my DNA, my hair . . . I had nothing to do with that."
"I Didn't Commit This Crime"
Before he is cut off, Apanovitch repeats the same thing he's been saying for 16 years.
"I didn't commit this crime."
If he could get a new trial, Apanovitch is certain he would be acquitted. Just look at the evidence, he urges.
Marty and his wife, Kate Flynn, have looked at it. In numerous articles and editorials over the years. In news programs. In their living room. It hasn't changed their minds.
"How in the hell do you think you could mount an effective trial 16 years after the crime?" Flynn asks with incredulity. He doesn't want Apanovitch released from prison. Ever.
Which doesn't mean Flynn and his family want Apanovitch to die.
With all the attention focused on death-row inmates lately, Kate says, "It makes you regret the day they sentenced him to death."
On that sole point, Apanovitch and the Flynn family agree.
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