On February 12, 2015, a team of pro bono attorneys from Crowell & Moring secured a victory for their client Anthony “Tony” Apanovitch. After presenting newly discovered DNA evidence, Crowell persuaded the trial court to overturn Mr. Apanovitch’s conviction and death sentence. The court also ordered Mr. Apanovitch’s release, pending a new trial.
At the time of his release, Mr. Apanovitch had spent 30 years on death row in Ohio for the 1985 rape and murder of Mary Anne Flynn, a crime he claims he did not commit. Crowell took the case from the ABA Death Penalty Representation Project in 2012, after the U.S. Court of Appeals for the Sixth Circuit denied the federal public defender’s request to represent Mr. Apanovitch in his state post-conviction proceedings.
Mr. Apanovitch was convicted of aggravated burglary, aggravated murder, and two counts of aggravated rape. During the initial investigation, the State collected DNA samples regarding the rape; however, DNA testing was not available at that time. The DNA evidence was not tested for several years, because the State was unable to locate the samples. In 1992, the samples were found in the desk drawer of an employee of in the Cuyahoga County Coroner’s Office in Ohio. The State tested the samples and concluded that the evidence was inculpatory. A series of appeals followed, and during the course of the federal habeas appeal in 2008, the defense discovered another DNA sample, which they claimed had been withheld by the State.
In October 2014, Crowell presented the new DNA evidence during a two-day evidentiary hearing and argued that the evidence had been misrepresented by the State. The defense expert testified that test results from the new DNA sample excluded Mr. Apanovitch as a source. Based on this evidence, Judge Robert McClelland acquitted Mr. Apanovitch of one count of rape.
The judge also dismissed the second rape count as a violation of due process under Valentine v. Konteh. In Valentine the U.S. Sixth Circuit Court of Appeals held that an indictment charging a defendant with “multiple, identical and undifferentiated counts” of rape violated his due process rights. Because Judge McClelland found nothing in the record that differentiated between the two rape charges against Mr. Apanovitch, the second rape charge was dismissed.
In his ruling, Judge McClelland stated that the DNA testing and expert testimony “meets, and exceeds, the standard of clear and convincing evidence of actual innocence.” He also found that without the rape charges “the nature and tenor of the case change[d] greatly,” which provided grounds for a new trial on the remaining charges of aggravated burglary and aggravated murder. He did not rule on the Brady claims against the State.
Mr. Apanovitch was released from death row and granted bond; however, the Court of Appeals of Ohio granted the State’s motion to stay the bond. Mr. Apanovitch remains in state custody pending the outcome of the State’s appeal. In the new trial, litigants will be able to challenge the evidentiary issues and the alleged Brady violations raised in previous proceedings. No new trial date has been set at this time.
The Project congratulates Crowell on this important victory!