#187 Jason Flom with Anthony Apanovitch

collected seamen from her body. Police soon identified plenty of likely suspects, including a violent ex boyfriend, 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 the lawyer, answering all their questions, and

even voluntarily giving up hair, blood, and saliva samples. He happened to have the same blood type as fluids found at the scene, but the state presented that piece of evidence without mentioning that Ms. Flynn had that exact same

blood type. The state hit evidence the detective I'd understand and in without DNA testing available to prove his innocence, Tony would have to wait for that scientific advancement to free him 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 Flam. Welcome back to Wrongful Conviction with Jason Flam, and soon you'll be hearing the subject of this episode, a man named Anthony A. Panovich 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 Bach, federal public defender who has been the lead lawyer and staunch advocate for miss to A. Potovich since 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. Thank you, Jason, it's good to be back. Hello. This is a prepaid debit call from an inmate at a Chilla Coffee Correctional institution. To accept this call, press zero, thank you for using GTL. Hey, Tony, I'm happy to have you here with us, but obviously I'm really sorry that it's under these circumstances. All right, Thanks Jason, I appreciate that, appreciate this opportunity to tell

my story. Now, Tony, I want to go back to before any of this happened. You grew up in Ohio, right, Oh, yeah, yeah, I grew up on on the east side of Cleveland. You quit going to school and 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 pay eating business started because I figured, you know, the summer months, I cale workout side painting, and then in the winter months I would be able to drive truck. And so this brings us to the summer of nineteen eighty four. Two neighbors have both hired you to do some painting, Mary Ann 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 us up to August twenty three four. You noticed that she hadn't gotten to painting the windows yet and tried to get a little more business for yourself. 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

has changed. 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, talk to her was around four thirty. Well, went back across the street, we finished up the job, and then we headed to the bar. That's what I did the rest of the night, you know, was bar hopping in the neighborhood. So later that night, mary Ann Flynn was raped and brutally murdered

in her bedroom. She'd been strangled and severely beaten, and siemen was found and collected from both her mouth and her vagina. Yes, so mary Anne's body was transported to the County Coroner's office in Kyahaga County, Okay. And I got to stop for a second, because Kyahaga County was notorious as one of, if not the most corrupt, disorganized, dysfunctional crime labs in the entire country at that time.

The police, the prosecutors, and the corner's office have all been the subject of news articles, scandals, podcasts for being sloppy or outright corrupt. And let me give you a

couple of examples. Lilyana Sigura with The Intercept, did some great reporting that documented a pattern of misconduct in the Kyahaga County Prosecutor Office, And in two thousand and eighteen, season three of the podcast serial featured the Cleveland Police Department, the Prosecutor's office, and the courts in Kihaga County as being somewhat corrupt, and the folks at the Kiahaga 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 Kihaga County. And of course this crime labs 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 you're a whereabouts were accounted for by the people who saw you

all through the night. Oh yeah, these are people. I frequented these bars, and these people knew who I was. And as far as them telling the cops that I was there at the bar. There was no problem as far as a by win. 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 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. So how did you get pulled into this? Well, I'll tell you, Jason, here's what the homicide detective told me. My name came up in the investigation as they were canvassing the neighborhood, and I go downtown with them and they started asking me questions and they tell me, well, we're gonna have to

hold you. We want to check your alibi. They kept me in jail that night next day, and they wondered if I would mind giving them 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 and my saliva, so I give them all that and they're asking me if you want a lawyer, you know, before we have that I don't need no lawyer. Man. You know, I'm cooperating a hundred per cent because I didn't do it.

Then they've asked, can we go to your house and look at your clothes? I'm like, yeah, okay, cool. See I'm not too upset about why they are doing this because I am an extra con right there, four years or one month for m robbery. I had a coming. I did my time, you know, and they told me that right off to jump. Being an extra con made him look at me a little harder than you know, average Joe. I see, okay, cool. So they went to my house, they get most of my clothes, and they

keep me in jail another night. Well the next day, by now i'm past off. I'm talking to detectives aller. I said, that's it. I'm ready to go. He said, well, you know, we don't have to charge you. We could 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, got me out of the set. So I leave, I go home. I'm not thinking too

much of it. I'm just wondering what I'm going to get my clothes back, because when I get home, I see they got most of them gone. So maybe five days later, I had a ticket that I had gotten a couple of weeks earlier than I had to go to court for. So I called down to Detective Zaler. I say, listen, I'm gonna be a court tomorrow. I want to come pick up my clothes. He said, no problem. So 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. Wait wait, why, well, I could I know what it is? Now? There was this guy named Ronnie Shelton. You know, he's called the West Side Rapists. He was going around rape and rape and 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 scabs and stuff on his dick that they wanted to see if I had on mine, and well, of course it wasn't me, so all right, So continue, was there anything else elevent about this contact with Zaler? I had called to ask about my clothes before I went down to the traffic ticket. Just before he hung up, he said, Uh, well you know, Tony, Uh you can still get indicted for this. So I said, if that happens, give me a call. And that conversation

comes up later at trial when Detective Salar 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, you're innocent. Weeks go by and nothing happens until you were a house sitting for your in laws. So this is like October. Second, I come out to shower. My wife said, in the shower, it's about noon. The phone rings. Detective Seller. I need you to come down. I talk to I said, yeah, well you know I

told you everything. Man, I ain't got no more to add. He's like, no, no, Tony, I'm gonna have to hold you for trial. Man, I need you to come down. I said, all right, all right, I said, I'll be down a little w I said, I'm gonna take my wife over to my mother's and we'll look at them. Know what's going on, you know. I said, I don't want him to see on the news that you rest me for this stuff, you know. And he said, yeah, okay, no problem, just come on down later on this afternoon.

So I hang up the phone. I'm thinking, you know, if I've never heard of ships like this, this is bullshit. So I walk outside. I figured the cops are out there. I just don't want to busting through the door. I got my daughter's in a little bassett there on the couch, right, my wife's in this shower. You know, if I really am going to be on trial for something a crime like this, they gotta be standing right out there with shuckgun. So I walk outside and there's nothing, nothing, nobody. I

stand there for a few minutes. Nothing. I go 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 gonna 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 a noon or twelve thirty when he calls me on the phone and arrested me for this terrible crime.

I mean, it's a terrible crime. There's no offense or but and he arrested me on the telephone, you know, tell me, I take my time coming down, so you know, my baby is 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 thirty. I mean, I gotta believe they knew that you weren't really the rapist and murderer. Otherwise is the way they behave this way. Now,

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, he said, 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. This is their drunks, and you look

worse than anybody else. And I'm like, wow, man, that ain't right, you know. He said, well, you know he should make sure you demand his beauty child. You got to do it within ninety days. I said, yeah, yeah. He said, what are you gonna do about your business? I said, trying to get it going. He says, you know, He said, they're going to drag your name through the mudd. He said, you're not going to be able to get

work in this town and cleave. I said, well, maybe I'd go out to the suburbs, you know, because that's where my inlaws live in. I mean, this is a guy who's locking me up on a charge of burglary, rape and murder, the same one who arrested me on the telephone. This episode is brought to you by Stand Together. Stand Together as a philanthropic community dedicated to helping people

improve their lives. For more than twenty years, Stand Together and its partners have been on the front lines of criminal justice reform by empowering people to take action, supporting the on profits and working with businesses. Stand Together tackles the root causes of problems in our communities and empowers

those closest to the problems to drive solutions. Solutions like reducing unjust prison sentences through the First Step Act, empowering community based programs and help people re enter society, and now working to bridge divides in our communities. To learn how you may get involved, visit stand Together dot org slash conviction. This episode is underwritten by the ai G

pro Bono Program. A i G is a leading global insurance company, and for over a decade, the ai G pro Bono Program has provided thousands of hours of free legal services and other support to nonprofit organizations and individuals most in need. More recently, the program added criminal and social justice reform as a key pillar of its mission. The only evidense 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 then the trial itself. Dale. Now this is before you got involved. It's so long ago. What did the trial

take place? December of nine? 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 did not interview the detectives. They had a very cursory interview with the people at the coroner's office. 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. Right, Yes, there 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 Ann 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 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 I noted, was found between her bound hands behind her back. And this is just the beginning. I mean, they even

planted that seed in opening statements. But there's so much more here to unpack, so go ahead, Dale. At trial, the state put on evidence that it swabbed the victims vagina, and that swab contained fluid deposited by someone who had blood type A and was a secretor, and someone who was a secret or secrets antigens into their bodily fluids. And the state put on evidence that Tony was a Type A secret or, so he was likely to be

the perpetrator. What the state withheld was that Ms. Flynn was also an A type secretor, so that meant that the fluids in Miss Flynn's body were just as likely her own. That is the only physical evidence that the state put on at trial. All the rest of the

evidence was circumstantial, 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 the prosecutor asks detective Zaler, 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. 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 Zaler. A couple of years later, when we made a Public Records Act request, we found that type statement by Detective Zaler where he wrote Tony said, if I'm indicted, that 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. 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 sense of things while the jury was deliberating. 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

aggregated Robbie. I copped out. I went to bease that I did my time. You get, you commit a crime, you make a deal man. In this case, there's no deal making here. I didn't do it. 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? When they judge said 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 verdict? Conditioner called twelve of them, And as they're doing it, I kept saying, no, man, if bullshit and any right and Dale. This is a laundry list of crimes that he was convicted of. 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 have a distinction between the vaginal rape and the oral rape. And this becomes critical later on

in post conviction litigation. Tony was sentenced to fifteen to twenty five years for the burglary and rape counts for a sum 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. Back then. They took me straight to Lucasville Contentiary 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 experience, 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 gonna kill me if I don't get back out. Nine. The Federal Court on a rape pace in Florida ruled that DNA evidence is sound sign evidence and can be used to show a person committed a crime. Or not immediately, tom Shaw see my trial lawyer filed devotion requesting DNA testing.

Then nineteen eighty nine, an attorney for Tony requested files from the Flynn autopsy. At that time, the vaginal at oral slides could not be located. They were assumed to have been destroyed. But nineteen one is when you got involved there, right, And this is when the three slides were magically located in Forensic science associates, at the request

of the Cayahaga County Corner's Office, conducted DNA testing. I found out about the three slides in two when I got a phone call from the county prosecutor saying, we found these three slides. Now we would like some 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 Corner's office was a sloppy lab. This is the same police department where the detective light on the stand. We need to be damn sure we know

where these slides came from. When we start digging 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 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. And there's a bit

of a twisted history about these three slides. So kaya Hagan County first denied the existence of these three slides. Then in 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, the L nine zero slide that Dale mentioned in 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, Cuyahoga County had Tony's blood, hair, and saliva samples that he had provided during the investigation, but for whatever reason, those samples were not available to f s A 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 six, when fs A 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 all 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 into evidence. And you think, with how fervently the state is trying to hang onto the conviction, that a report like that would have been the centerpiece of post conviction. 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 f s A who did the testing 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.

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. If this was really something that could have heard 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 nine, when Dale and the team found out that back in two thousand an assistant prosecutor requested that the Kiahaga County Corner's office tested two remaining properly labeled vaginal and oral slides that had previously not yielded a DNA profile. 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 Cuyahoga County.

She brought documents that we had subpoenaed, and we first learned that In two thousand, the state did another test, got results, didn't share those results with us, And in two thousand and twelve we went back to state court for the fourth time and had a hearing on that

evidence that was tested in two thousands. So two thousand fourteen, the defense expert Dr. Rick stab 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, acquitted and the second count of rape was dismissed on the grounds that it lacked becificity. And it was one year later, March six went your appeals court

three to zero. They all three agreed, Yes, the DNA prooved. I was innocent and I got out that day. Okay, go to that moment if you can. And oh man, I always been waiting for this moment to happen. In my daughter Elena, the one that I just goodbye when I went and turned myself in. She came out with two of my grandchildren, my granddaughter Rain and grandson navan oh Man. First time I got to see them in person. You know, I called, well, my wife, now, Beth. I got a hold of her. I let her know I'm

I'm home. So tell us about your wife, Beth? How did that all develop? I've known her like twenties of years, you know, she she was isn't evenly in prison and everything. I mean, I've been in love with that woman for

many years. I mean I 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 gonna have a relationship, you know, and if we can have one, because you know, I'm like a lab experiment all the years, locked up, so her and the kids would come over several times a week, you know. When I first got home, finally I thought, I don't know what we're waiting for. I said that, you know, I love you, and she's like, you know I love you too?

What I said, So you know we're old. What are we waiting for. Let's get married. Man. I don't spell my life locked up. I want to live and she's like, okay, but I got two granddaughters that you're gonna have to raise, and I'm like, maybe I got no problem. I didn't get a chance to raise my kids. Now I'm getting a second chance at life. I'm sure everyone's wondering. Okay, so why in God's name is he calling us from death row? 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 evidentially hearing on the issue of d n A, 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 two thousand and twelve through two thousand and fourteen, we present evidence that Tony is excluded as the person who committed the 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 courts view, that hearing where he was a sonarrated of the rate charges never existed. So you from your death row cell were required to have requested the d n A that the state had insisted didn't exist. That blew my mind. That next Friday, my wife she asked me to bake mac and cheese.

My other stepdaughter, she just moved into a place she had no Washington dryer. I went. I got to Washington dryer. Now I gotta go pick the grand babies that were raising Chloe and there Jane. I gotta go pick them up from school. I gotta take the dog to the vet. I gotta washer dryer. In the back of the pickup truck. I'm doing normal stuff that 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 heading to the porch, and here come these six cars. Man U S 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 get off jet throw 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. 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. Yeah. Law professor at Georgetown, Mark Howard, and and three of the students they got interested in my case. They made a documentary and then they set up a website. I guess they have a petition, which is Justice for a Panovitch 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 first of all, thank our distinguished guests, Dale Base, Federal Public Defender Advocate extraordinaire Tony, thank you for being

here with us hanging Thereyboddy. We're going to bring you home and now I'm gonna turn my microphone off, kick back, close my eyes and listen. Dale, you first, and then Tony. 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 appellate review, evidence that the state withheld a trial began to seep out, the secret or status of the victim, other suspects, lies by police

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 claim. What we have here is a wrongful conviction. How do we know that? It's 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 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 Crowland Mooring, We're not going to give up Tony over to you. 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, given them my hair, blood saliva, answering all their questions. I'm innocent. Come on 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 let

let's let a jury see all the evidence. You know, and I'm confident I have no doubt in my mind that they'll find you 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 fact. And uh again, I say, I appreciate 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. Thank you for listening to Wrongful Conviction with Jason Flam. Please support your local innocence projects and go to the link in our bio to see how you can help. I'd like to thank our production team Connor Hall, Jeff Clyburne

and Kevin Warness. The music on the show, as always, is by three time OSCAR nominated composer Jay Ralph. Be sure to follow us on Instagram at Wrongful Conviction and on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason Flam is a production of Lava for Good Podcasts in association with Signal Company Number one