1 00:00:02,440 --> 00:00:05,120 Speaker 1: It was the summer of nineteen eighty four. Tony I. 2 00:00:05,200 --> 00:00:07,920 Speaker 1: Panovitch was in the process of building his house painting 3 00:00:07,960 --> 00:00:11,720 Speaker 1: business on the west side of Cleveland. On August twenty third, 4 00:00:11,960 --> 00:00:15,240 Speaker 1: a woman named Mary Anne Flynn was beaten and strangled 5 00:00:15,280 --> 00:00:20,400 Speaker 1: to death. Authorities collected seamen from her body. Police soon 6 00:00:20,520 --> 00:00:24,520 Speaker 1: identified plenty of likely suspects, including a violent ex boyfriend, 7 00:00:24,600 --> 00:00:26,759 Speaker 1: an ex tenant who had been accused of rape, and 8 00:00:26,800 --> 00:00:28,680 Speaker 1: a few other men who had keys to her house, 9 00:00:28,840 --> 00:00:31,639 Speaker 1: as well as Tonya Panovitch, who had done some painting 10 00:00:31,720 --> 00:00:35,400 Speaker 1: for her earlier that summer, but Tony's whereabouts were entirely 11 00:00:35,440 --> 00:00:38,199 Speaker 1: accounted for. On the night of her murder, Tony was 12 00:00:38,240 --> 00:00:42,199 Speaker 1: perhaps too cooperative with police, refusing a lawyer, answering all 13 00:00:42,240 --> 00:00:46,000 Speaker 1: their questions, and even voluntarily giving up hair, blood, and 14 00:00:46,040 --> 00:00:49,400 Speaker 1: saliva samples. He happened to have the same blood type 15 00:00:49,479 --> 00:00:52,120 Speaker 1: as fluis found at the scene, but the state presented 16 00:00:52,159 --> 00:00:55,520 Speaker 1: that piece of evidence without mentioning that Miss Flynn had 17 00:00:55,560 --> 00:00:59,240 Speaker 1: that exact same blood type. The state hit evidence that 18 00:00:59,320 --> 00:01:02,280 Speaker 1: Detective life I do understand and in nineteen eighty four, 19 00:01:02,520 --> 00:01:05,959 Speaker 1: without DNA testing available to prove his innocence, Tony would 20 00:01:06,040 --> 00:01:09,560 Speaker 1: have to wait for that scientific advancement to free him 21 00:01:09,600 --> 00:01:14,039 Speaker 1: from his death sentence after thirty two years, but remarkably, 22 00:01:14,240 --> 00:01:18,600 Speaker 1: his time on death row didn't end there. This is 23 00:01:18,680 --> 00:01:35,240 Speaker 1: Wrongful Conviction with Jason Flamm. Welcome back to Wrongful Conviction 24 00:01:35,400 --> 00:01:38,680 Speaker 1: with Jason Flamm, and soon you'll be hearing the subject 25 00:01:38,720 --> 00:01:42,880 Speaker 1: of this episode, a man named Anthony Ipanovich, calling in 26 00:01:43,240 --> 00:01:47,320 Speaker 1: from death row in Ohio, where he has been for 27 00:01:47,360 --> 00:01:49,840 Speaker 1: the better part of four decades for a crime he 28 00:01:49,880 --> 00:01:52,880 Speaker 1: didn't commit. With us on the show today is Dale Base, 29 00:01:53,400 --> 00:01:57,240 Speaker 1: a federal public defender who has been the lead lawyer 30 00:01:57,520 --> 00:02:02,120 Speaker 1: and staunch advocate for miss thank A Podovich since nineteen 31 00:02:02,240 --> 00:02:04,320 Speaker 1: ninety one, probably before some of you were born, that's 32 00:02:04,320 --> 00:02:06,760 Speaker 1: how low he's been working on this case. So Dale, 33 00:02:06,920 --> 00:02:08,519 Speaker 1: welcome back to Wrongful Conviction. 34 00:02:08,880 --> 00:02:10,919 Speaker 2: Thank you, Jason, it's good to be back. 35 00:02:11,160 --> 00:02:16,160 Speaker 3: Hello. This is a prepaid debit call from Tony, an 36 00:02:16,160 --> 00:02:20,520 Speaker 3: inmate at the Chillacoffee Correctional Institution. To accept this call, 37 00:02:20,639 --> 00:02:27,000 Speaker 3: Pres zero, thank you for using gtlllt. 38 00:02:25,960 --> 00:02:28,520 Speaker 1: Hey, Tony, I'm happy to have you here with us, 39 00:02:28,560 --> 00:02:32,240 Speaker 1: but obviously I'm really sorry that it's under these circumstances. 40 00:02:32,400 --> 00:02:35,480 Speaker 3: All right, Thanks Jason, I appreciate that. I appreciate this 41 00:02:35,639 --> 00:02:37,680 Speaker 3: opportunity to tell my story. 42 00:02:38,000 --> 00:02:41,320 Speaker 1: Now, Tony, I want to go back to before any 43 00:02:41,360 --> 00:02:45,000 Speaker 1: of this happened. You grew up in Ohio, right, Oh, yeah. 44 00:02:44,880 --> 00:02:47,520 Speaker 3: Yeah, I grew up on the east side of Cleveland. 45 00:02:48,120 --> 00:02:50,960 Speaker 3: You quit going to school in about the eighth grade. 46 00:02:51,240 --> 00:02:53,400 Speaker 3: I just started working when I was twelve years old. 47 00:02:53,520 --> 00:02:56,440 Speaker 3: I like construction work, though I like working outside. I 48 00:02:56,480 --> 00:02:58,760 Speaker 3: was a truck driver for about five years. Then I 49 00:02:59,040 --> 00:03:01,520 Speaker 3: was trying to get a paying business started because I 50 00:03:01,560 --> 00:03:03,720 Speaker 3: figured that, you know, the summer months, I could work 51 00:03:03,760 --> 00:03:05,960 Speaker 3: outside painting, and then in the winter months I would 52 00:03:05,960 --> 00:03:06,960 Speaker 3: be able to drive truck. 53 00:03:07,240 --> 00:03:09,800 Speaker 1: And so this brings us to the summer of nineteen 54 00:03:09,840 --> 00:03:13,000 Speaker 1: eighty four. Two neighbors have both hired you to do 55 00:03:13,120 --> 00:03:15,720 Speaker 1: some painting, Mary Ann Flynn and the guy that lived 56 00:03:15,720 --> 00:03:19,160 Speaker 1: across the street for her. You painted the outside bottom 57 00:03:19,160 --> 00:03:22,440 Speaker 1: half of Miss Flynn's house. Now she intended to paint 58 00:03:22,440 --> 00:03:25,560 Speaker 1: her window frames herself, and then you started working across 59 00:03:25,600 --> 00:03:28,400 Speaker 1: the street painting her neighbor's entire house. And that brings 60 00:03:28,480 --> 00:03:32,040 Speaker 1: us up to August twenty third, nineteen eighty four. You 61 00:03:32,200 --> 00:03:34,840 Speaker 1: noticed that she hadn't gotten to painting the windows yet 62 00:03:34,920 --> 00:03:37,160 Speaker 1: and tried to get a little more business for yourself. 63 00:03:37,240 --> 00:03:39,119 Speaker 3: So when I seen her, I walked over. I asked 64 00:03:39,160 --> 00:03:40,840 Speaker 3: her if she wasn't going to be able to get 65 00:03:40,880 --> 00:03:43,240 Speaker 3: to those frames that I said she wanted, I could 66 00:03:43,240 --> 00:03:46,240 Speaker 3: get it done, you know, because the weather's changing. She said, well, 67 00:03:46,280 --> 00:03:48,120 Speaker 3: she'd let me know. I think I told her it 68 00:03:48,160 --> 00:03:50,200 Speaker 3: was going to be like sixty bucks or something to 69 00:03:50,240 --> 00:03:52,320 Speaker 3: paint them. So that was the last time I had 70 00:03:52,360 --> 00:03:54,920 Speaker 3: seen her or talked to her. It was around four thirty. Well, 71 00:03:54,920 --> 00:03:57,160 Speaker 3: went back across the street, we finished up the job, 72 00:03:57,200 --> 00:03:59,400 Speaker 3: then then we headed to the bar. That's what I 73 00:03:59,400 --> 00:04:02,320 Speaker 3: did the rest of the night, you know, was barhopping 74 00:04:02,400 --> 00:04:03,200 Speaker 3: in the neighborhood. 75 00:04:03,520 --> 00:04:07,000 Speaker 1: So later that night, mary Ann Flynn was raped and 76 00:04:07,160 --> 00:04:11,280 Speaker 1: brutally murdered in her bedroom. She'd been strangled and severely beaten, 77 00:04:11,400 --> 00:04:14,840 Speaker 1: and semen was found and collected from both her mouth 78 00:04:15,040 --> 00:04:16,320 Speaker 1: and her vagina. 79 00:04:16,440 --> 00:04:21,359 Speaker 2: Yes, so mary Anne's body was transported to the County 80 00:04:21,400 --> 00:04:24,799 Speaker 2: Coroner's office in Cyahoga County, Okay. 81 00:04:24,800 --> 00:04:28,080 Speaker 1: And I got to stop for a second because Kyahaga 82 00:04:28,080 --> 00:04:34,000 Speaker 1: County was notorious as one of, if not the most corrupt, disorganized, 83 00:04:34,279 --> 00:04:38,160 Speaker 1: disfunctional crime labs in the entire country at that time. 84 00:04:38,520 --> 00:04:42,400 Speaker 1: The police, prosecutors, and the Corner's office have all been 85 00:04:42,440 --> 00:04:46,800 Speaker 1: the subject of news articles, scandals, podcasts for being sloppy 86 00:04:47,000 --> 00:04:48,360 Speaker 1: or outright corrupt. 87 00:04:48,720 --> 00:04:51,920 Speaker 2: And let me give you a couple of examples. Liliana 88 00:04:52,000 --> 00:04:56,440 Speaker 2: Segura with The Intercept did some great reporting that documented 89 00:04:56,480 --> 00:05:00,600 Speaker 2: a pattern of misconduct in the Cayahaga County prosecutor Office. 90 00:05:00,800 --> 00:05:05,760 Speaker 2: And in twenty eighteen, season three of the podcast serial 91 00:05:05,960 --> 00:05:09,760 Speaker 2: feature the Cleveland Police Department, the Prosecutor's office, and the 92 00:05:09,800 --> 00:05:14,720 Speaker 2: courts in Cayahaga County as being somewhat corrupt, and the 93 00:05:14,760 --> 00:05:19,360 Speaker 2: folks at the Cayahga County Coroner's Office admitted that they 94 00:05:19,440 --> 00:05:23,240 Speaker 2: ran a sloppy lab. So you have all that going 95 00:05:23,320 --> 00:05:26,880 Speaker 2: on during the time that Tony's case was making its 96 00:05:26,920 --> 00:05:30,359 Speaker 2: way through the court system in Cayahoga County. 97 00:05:30,440 --> 00:05:33,840 Speaker 1: And of course this crime lab's dubious work will become 98 00:05:34,040 --> 00:05:37,360 Speaker 1: relevant later. But first, Tony, let's get back to the 99 00:05:37,360 --> 00:05:41,640 Speaker 1: investigation of your alibi. You had gone bar hopping. The 100 00:05:41,680 --> 00:05:43,760 Speaker 1: bars you went to that night, you were a bit 101 00:05:43,800 --> 00:05:46,720 Speaker 1: of a regular at and your whereabouts were accounted for 102 00:05:47,279 --> 00:05:49,840 Speaker 1: by the people who saw you all through the night. 103 00:05:49,960 --> 00:05:52,680 Speaker 3: Oh yeah, either people I frink withed these bars, and 104 00:05:52,720 --> 00:05:54,880 Speaker 3: these people knew who I was. And as far as 105 00:05:54,960 --> 00:05:57,839 Speaker 3: them telling the cops that I was there at the bar, 106 00:05:58,000 --> 00:06:01,080 Speaker 3: that was no problem as far as my I mean, 107 00:06:01,160 --> 00:06:03,400 Speaker 3: I was where I said I was, and then when 108 00:06:03,400 --> 00:06:05,920 Speaker 3: I left one bar, went to the next one within 109 00:06:06,080 --> 00:06:08,839 Speaker 3: the time that it would have taken normally to get 110 00:06:08,880 --> 00:06:12,800 Speaker 3: from A to B. No hour delays in between or 111 00:06:12,839 --> 00:06:15,640 Speaker 3: nothing like that. There was no skipping. So wherever I 112 00:06:15,839 --> 00:06:19,080 Speaker 3: was that night, whatever bar I went to, whatever time 113 00:06:19,120 --> 00:06:21,679 Speaker 3: I got there and left, they know that was all covered. 114 00:06:22,000 --> 00:06:24,280 Speaker 1: So how did you get pulled into this? 115 00:06:24,640 --> 00:06:28,120 Speaker 3: Well, I'll tell you, Jason. Here's what the homicide detectives 116 00:06:28,200 --> 00:06:31,920 Speaker 3: told me. My name came up in the investigation as 117 00:06:31,960 --> 00:06:35,720 Speaker 3: they were canvassing the neighborhood, and I go downtown with 118 00:06:35,800 --> 00:06:38,720 Speaker 3: them and they start asking me questions and they tell me, well, 119 00:06:38,720 --> 00:06:40,360 Speaker 3: we're going to have to hold you. We want to 120 00:06:40,440 --> 00:06:42,880 Speaker 3: check your alibi. They kept me in there that night. 121 00:06:43,240 --> 00:06:46,080 Speaker 3: Next day they wondered if I would mind giving them 122 00:06:46,120 --> 00:06:48,680 Speaker 3: a blood sample. I'm like, yeah, no, I got no 123 00:06:48,720 --> 00:06:51,000 Speaker 3: problem with that. They take my blood, they want to 124 00:06:51,000 --> 00:06:53,760 Speaker 3: take some of my hair and my saliva. So I 125 00:06:53,800 --> 00:06:55,880 Speaker 3: give them all that, and they're asking me if you 126 00:06:55,920 --> 00:06:58,280 Speaker 3: want a lawyer. You know, before we asked that I 127 00:06:58,320 --> 00:07:01,000 Speaker 3: don't need no loader. Man. You know, I'm cooperating one 128 00:07:01,040 --> 00:07:04,039 Speaker 3: hundred percent because I didn't do it. Then they'd asked, 129 00:07:04,080 --> 00:07:06,040 Speaker 3: can we go to your house and look at your clothes? 130 00:07:06,440 --> 00:07:09,960 Speaker 3: I'm like, yeah, okay, cool. See I'm not too upset 131 00:07:10,000 --> 00:07:12,440 Speaker 3: about why they are doing this because I am an Xican. 132 00:07:12,680 --> 00:07:15,160 Speaker 3: I did four years or one month for armed robbery. 133 00:07:15,760 --> 00:07:17,880 Speaker 3: I had it coming. I did my time, you know. 134 00:07:17,960 --> 00:07:19,920 Speaker 3: And they told me that right off the jump. Being 135 00:07:19,960 --> 00:07:22,160 Speaker 3: an x con made him look at me a little 136 00:07:22,200 --> 00:07:25,160 Speaker 3: harder than you know, average Joe. I say, okay, cool. 137 00:07:25,280 --> 00:07:27,200 Speaker 3: So they went to my house to get most of 138 00:07:27,280 --> 00:07:30,160 Speaker 3: my clothes, and they keep me in jail another night. 139 00:07:30,720 --> 00:07:33,080 Speaker 3: Well the next day, by now, I'm pissed off. I'm 140 00:07:33,080 --> 00:07:35,800 Speaker 3: talking to Detective Zalor. I said, that's it. I'm ready 141 00:07:35,840 --> 00:07:37,280 Speaker 3: to go. He said, well, you know, we don't have 142 00:07:37,400 --> 00:07:39,520 Speaker 3: to charge you. We can hold you so many days. 143 00:07:39,560 --> 00:07:41,760 Speaker 3: You know, it was up that day. I said, this 144 00:07:41,920 --> 00:07:45,000 Speaker 3: is it, man, I'm going home. He said, well, let 145 00:07:45,040 --> 00:07:47,080 Speaker 3: me come back this afternoon. He said, I'm waiting on 146 00:07:47,160 --> 00:07:49,800 Speaker 3: the lab report. Anyhow, he come back about three three 147 00:07:49,880 --> 00:07:52,520 Speaker 3: thirty got me out of the south So I leave, 148 00:07:52,920 --> 00:07:54,880 Speaker 3: I go home. I'm not thinking too much of it. 149 00:07:54,960 --> 00:07:57,080 Speaker 3: I'm just wondering when I'm going to get my clothes back, 150 00:07:57,120 --> 00:07:59,040 Speaker 3: because when I get home, I see they got most 151 00:07:59,080 --> 00:08:02,120 Speaker 3: of them gone. Maybe five days later, I had a 152 00:08:02,160 --> 00:08:04,480 Speaker 3: ticket that I had gotten a couple of weeks earlier 153 00:08:04,480 --> 00:08:06,440 Speaker 3: that I had to go to court for. So I 154 00:08:06,520 --> 00:08:09,600 Speaker 3: called down to Detective Zalor. I say, listen, I'm gonna 155 00:08:09,640 --> 00:08:11,240 Speaker 3: be in court tomorrow. I want to come pick up 156 00:08:11,240 --> 00:08:13,520 Speaker 3: my clothes. He said, no problem. So when I go 157 00:08:13,600 --> 00:08:16,640 Speaker 3: down to go to court, he tells me he wants 158 00:08:16,680 --> 00:08:19,360 Speaker 3: me to come upstairs because he wanted the corner to 159 00:08:19,600 --> 00:08:21,640 Speaker 3: take a look at me. They take me in the room. 160 00:08:21,720 --> 00:08:23,520 Speaker 3: The corner comes in. They say, well, they want to 161 00:08:23,520 --> 00:08:27,760 Speaker 3: look at my tenis okay? So I let her look. 162 00:08:27,880 --> 00:08:29,960 Speaker 3: She looks at it and says, no, this isn't it 163 00:08:30,800 --> 00:08:31,640 Speaker 3: and leaves the room. 164 00:08:31,960 --> 00:08:35,199 Speaker 1: Wait wait, why, well I know what it is now. 165 00:08:35,720 --> 00:08:38,760 Speaker 3: There was this guy named Ronnie Shelton, I know, he's 166 00:08:38,800 --> 00:08:42,360 Speaker 3: called the West Side Rapist. He was going around raping 167 00:08:42,440 --> 00:08:45,520 Speaker 3: women all over that area on the west side of Cleveland. 168 00:08:45,600 --> 00:08:49,360 Speaker 3: At that time, and he had something wrong. I guess 169 00:08:49,440 --> 00:08:52,120 Speaker 3: he had some kind of scabs and stuff on his 170 00:08:52,280 --> 00:08:54,880 Speaker 3: dick that they wanted to see if I had on mine. 171 00:08:55,400 --> 00:08:57,360 Speaker 3: And well, of course it wasn't me, so all. 172 00:08:57,400 --> 00:09:00,760 Speaker 1: Right, So continue was there anything else round about this 173 00:09:00,880 --> 00:09:01,839 Speaker 1: contact with Zalor? 174 00:09:02,960 --> 00:09:05,960 Speaker 3: I had called to ask about my clothes before I 175 00:09:06,040 --> 00:09:09,720 Speaker 3: went down to the traffic ticket. Just before he hung up, 176 00:09:09,800 --> 00:09:13,400 Speaker 3: he said, well, you know, Tony, you could still get 177 00:09:13,480 --> 00:09:16,840 Speaker 3: indicted for this. So I said, if that happens, give 178 00:09:16,840 --> 00:09:17,560 Speaker 3: me a call. 179 00:09:17,720 --> 00:09:21,079 Speaker 1: And that conversation comes up later at trial when Detective 180 00:09:21,120 --> 00:09:24,960 Speaker 1: Sala gives it. Well, he gave a very misleading testimony. 181 00:09:25,040 --> 00:09:29,040 Speaker 1: But for now there's this indictment threat looming. But you're 182 00:09:29,080 --> 00:09:32,720 Speaker 1: not too worried because after all, your innocent weeks go 183 00:09:32,800 --> 00:09:36,440 Speaker 1: by and nothing happens until you were house sitting for 184 00:09:36,480 --> 00:09:37,200 Speaker 1: your in laws. 185 00:09:37,440 --> 00:09:42,160 Speaker 3: So this is like October. Second, I come out to shower, 186 00:09:42,200 --> 00:09:45,520 Speaker 3: my wife's in the shower. It's about noon. The phone rings, 187 00:09:45,559 --> 00:09:48,200 Speaker 3: Detective Salar, I need you to come down. I talk 188 00:09:48,280 --> 00:09:50,240 Speaker 3: to I said, yeah, well, you know, I don't tell 189 00:09:50,280 --> 00:09:54,079 Speaker 3: you everything. Man, I got no more to add. He's like, no, no, Tony, 190 00:09:54,320 --> 00:09:56,439 Speaker 3: I'm going to have to hold you for trial. Man, 191 00:09:56,480 --> 00:09:58,320 Speaker 3: I need you to come down. I said, all right, 192 00:09:58,360 --> 00:09:59,960 Speaker 3: all right, I said, I'll be done on a wa 193 00:10:00,120 --> 00:10:02,080 Speaker 3: I said, I'm going to take my wife over to 194 00:10:02,120 --> 00:10:04,200 Speaker 3: my mother's. I'm gonna let them know what's going on, 195 00:10:04,400 --> 00:10:05,760 Speaker 3: you know. So I said, I don't want them to 196 00:10:05,800 --> 00:10:08,000 Speaker 3: see on the news that you rest me for this stuff, 197 00:10:08,080 --> 00:10:10,520 Speaker 3: you know. And he said, yeah, okay, no problem, just 198 00:10:10,559 --> 00:10:12,760 Speaker 3: come on down later on this afternoon. So I hang 199 00:10:12,840 --> 00:10:15,560 Speaker 3: up the phone. I'm thinking, you know, I never heard 200 00:10:15,559 --> 00:10:18,920 Speaker 3: no shit like this. This is bullshit. So I walk outside. 201 00:10:18,960 --> 00:10:20,760 Speaker 3: I figured the cops are out there. I just don't 202 00:10:20,800 --> 00:10:23,320 Speaker 3: want him busting through the door. I got my daughters 203 00:10:23,600 --> 00:10:26,079 Speaker 3: in their little bass of that there on the couch right. 204 00:10:26,160 --> 00:10:28,360 Speaker 3: My wife's in the shower. You know, if I really 205 00:10:28,640 --> 00:10:30,440 Speaker 3: am going to be on trial for some of the 206 00:10:30,480 --> 00:10:32,559 Speaker 3: crime like this, they got to be standing right out 207 00:10:32,559 --> 00:10:38,040 Speaker 3: there with chatgun. So I walk outside and there's nothing, nothing, nobody. 208 00:10:38,160 --> 00:10:40,920 Speaker 3: I stand there for a few minutes. Nothing. I go 209 00:10:41,000 --> 00:10:43,080 Speaker 3: back in the house, call a lawyer up and I 210 00:10:43,120 --> 00:10:45,480 Speaker 3: asked him to check out it. He called me back 211 00:10:45,520 --> 00:10:49,680 Speaker 3: and he said, wow, Tony, he said, you've been indicted. Man, 212 00:10:49,760 --> 00:10:53,120 Speaker 3: you're facing the electric chair. He asked me what I 213 00:10:53,160 --> 00:10:54,640 Speaker 3: was going to do. I said, well, you know, I'm 214 00:10:54,640 --> 00:10:56,520 Speaker 3: going on my mom's like I told him, And I'll 215 00:10:56,520 --> 00:10:59,520 Speaker 3: be down later on this afternoon, you know. I mean, 216 00:10:59,520 --> 00:11:01,840 Speaker 3: this was it noon or twelve thirty when he calls 217 00:11:01,880 --> 00:11:05,040 Speaker 3: me on the phone and arrests me for this terrible crime. 218 00:11:05,240 --> 00:11:07,319 Speaker 3: I mean, it's a terrible crime. There's no offenser. But 219 00:11:07,600 --> 00:11:09,800 Speaker 3: and he arrested me on the telephone. If you'll tell me, 220 00:11:09,840 --> 00:11:12,280 Speaker 3: I take my time coming down me. So you know, 221 00:11:12,440 --> 00:11:15,160 Speaker 3: my baby's only six weeks old. I kissed my daughter, 222 00:11:15,160 --> 00:11:17,600 Speaker 3: I kiss my wife. Tell my brother Vince, you know, 223 00:11:17,880 --> 00:11:21,120 Speaker 3: catch you guys later, you know. And I went down 224 00:11:21,160 --> 00:11:23,960 Speaker 3: to the jail, probably about four thirty. 225 00:11:24,600 --> 00:11:26,760 Speaker 1: I mean, I got to believe they knew that you 226 00:11:26,920 --> 00:11:30,559 Speaker 1: weren't really the rapist and murderer. Otherwise is the way 227 00:11:30,559 --> 00:11:32,280 Speaker 1: they behave this way, I'll tell. 228 00:11:32,120 --> 00:11:35,760 Speaker 3: You what he said. I get down there, we go 229 00:11:35,800 --> 00:11:38,000 Speaker 3: in this room and I said, look, man, why are 230 00:11:38,040 --> 00:11:39,960 Speaker 3: you doing this to me? He said, I'm not the 231 00:11:40,000 --> 00:11:42,600 Speaker 3: one doing it. The prosecutor is the one that got 232 00:11:42,600 --> 00:11:46,640 Speaker 3: the indictment against you. I said, but what I mean, man, 233 00:11:46,960 --> 00:11:50,920 Speaker 3: And he says, and this is for sure never forget this. 234 00:11:51,720 --> 00:11:53,680 Speaker 3: He said, well, Tony, he said, you know, this is 235 00:11:53,800 --> 00:11:56,800 Speaker 3: a high profile case and there's a lot of pressure 236 00:11:56,840 --> 00:11:59,760 Speaker 3: on us to get somebody, you know, all your alibi. 237 00:12:00,080 --> 00:12:03,079 Speaker 3: This is their drunks, and you look worse than anybody else. 238 00:12:03,640 --> 00:12:06,120 Speaker 3: And I'm like, wow, man, that ain't right, you know. 239 00:12:06,679 --> 00:12:08,400 Speaker 3: He said, well, you know, he said, make sure you 240 00:12:08,679 --> 00:12:10,640 Speaker 3: demand a speedy trial. They got to do it within 241 00:12:10,720 --> 00:12:12,960 Speaker 3: ninety days. I said, yeah, yeah. He said, what are 242 00:12:12,960 --> 00:12:15,360 Speaker 3: you going to do about your business? I said, you're 243 00:12:15,400 --> 00:12:17,080 Speaker 3: trying to get it going. He says, you know, he said, 244 00:12:17,080 --> 00:12:18,719 Speaker 3: they're going to drag your name through the mud. And 245 00:12:18,760 --> 00:12:20,439 Speaker 3: he said, you're not going to be able to get 246 00:12:20,520 --> 00:12:22,520 Speaker 3: work in this town and cleeve and I said, well, 247 00:12:22,520 --> 00:12:24,440 Speaker 3: maybe I'll go out to the suburbs, you know, because 248 00:12:24,440 --> 00:12:26,520 Speaker 3: that's where my in law's living. I mean, this is 249 00:12:26,520 --> 00:12:30,240 Speaker 3: the guy who's locking me up out of charge of burglary, 250 00:12:30,920 --> 00:12:33,800 Speaker 3: rape and murder, the same one who arrests me on 251 00:12:33,800 --> 00:12:40,520 Speaker 3: the telephone. 252 00:12:43,920 --> 00:12:47,080 Speaker 1: This episode is brought to you by Stand Together. Stand 253 00:12:47,080 --> 00:12:50,840 Speaker 1: Together is a philanthropic community dedicated to helping people improve 254 00:12:50,880 --> 00:12:53,840 Speaker 1: their lives. For more than twenty years, Stand Together and 255 00:12:53,880 --> 00:12:56,240 Speaker 1: its partners have been on the front lines of criminal 256 00:12:56,320 --> 00:12:59,960 Speaker 1: justice reform. By empowering people to take action, supporting them, 257 00:13:00,800 --> 00:13:04,600 Speaker 1: and working with businesses, Stand Together tackles the root causes 258 00:13:04,600 --> 00:13:07,480 Speaker 1: of problems in our communities and empowers those closest to 259 00:13:07,520 --> 00:13:11,960 Speaker 1: the problems to drive solutions. Solutions like reducing unjust prison 260 00:13:12,000 --> 00:13:15,880 Speaker 1: sentences through the First Step Act, empowering community based programs 261 00:13:15,880 --> 00:13:19,080 Speaker 1: and help people re enter society, and now working to 262 00:13:19,160 --> 00:13:22,520 Speaker 1: bridge divides in our communities. To learn how you may 263 00:13:22,559 --> 00:13:29,560 Speaker 1: get involved, visit Standtogether dot org slash conviction. This episode 264 00:13:29,600 --> 00:13:33,640 Speaker 1: is underwritten by the AIG pro Bono Program. AIG is 265 00:13:33,679 --> 00:13:36,880 Speaker 1: a leading global insurance company, and for over a decade, 266 00:13:36,920 --> 00:13:40,680 Speaker 1: the AIG pro Bono Program has provided thousands of hours 267 00:13:40,679 --> 00:13:44,679 Speaker 1: of free legal services and other support to nonprofit organizations 268 00:13:44,679 --> 00:13:48,840 Speaker 1: and individuals most in need. More recently, the program added 269 00:13:48,880 --> 00:13:52,280 Speaker 1: criminal and social justice reform as a key pillar of 270 00:13:52,320 --> 00:14:03,160 Speaker 1: its mission. The only evident him was purely circumstantial, definitely 271 00:14:03,240 --> 00:14:05,480 Speaker 1: wrong place, wrong time, he was painting the house. There 272 00:14:05,559 --> 00:14:07,679 Speaker 1: was no denying that he knew the victim, but that 273 00:14:07,720 --> 00:14:09,840 Speaker 1: doesn't make him guilty. A lot of people were in 274 00:14:09,960 --> 00:14:12,600 Speaker 1: contact with her that same day. That's not a basis 275 00:14:12,600 --> 00:14:15,200 Speaker 1: on which to convict somebody and sentence them to death, 276 00:14:15,679 --> 00:14:18,920 Speaker 1: especially when none of the rest of the evidence matched up. 277 00:14:19,200 --> 00:14:22,800 Speaker 1: And then the trial itself Dale, Now this is before 278 00:14:22,840 --> 00:14:25,240 Speaker 1: you got involved. It's so long ago. When did the 279 00:14:25,280 --> 00:14:26,120 Speaker 1: trial take place? 280 00:14:26,360 --> 00:14:31,240 Speaker 2: December of nineteen eighty four, And the investigation that the 281 00:14:31,280 --> 00:14:36,080 Speaker 2: two lawyers representing Tony did to prepare for trial wasn't 282 00:14:36,120 --> 00:14:38,840 Speaker 2: as robust as it should have been. They went out 283 00:14:38,880 --> 00:14:42,400 Speaker 2: and spoke to a few of Tony's witnesses, but they 284 00:14:42,440 --> 00:14:46,840 Speaker 2: did not hire experts to look at the forensics. They 285 00:14:46,880 --> 00:14:51,280 Speaker 2: did not interview the detectives. They had a very cursory 286 00:14:51,520 --> 00:14:54,320 Speaker 2: interview with the people at the coroner's office. 287 00:14:54,760 --> 00:14:58,600 Speaker 1: So without a thorough investigation, the prosecution was able to 288 00:14:58,640 --> 00:15:02,640 Speaker 1: pull a number of dirty tricks. And this tangled web 289 00:15:03,000 --> 00:15:06,040 Speaker 1: started really back when the autopsy was conducted. 290 00:15:06,160 --> 00:15:09,480 Speaker 2: Right, Yes, there was a piece of hair that was 291 00:15:09,560 --> 00:15:13,800 Speaker 2: found between her bound hands behind her back, and that 292 00:15:13,960 --> 00:15:17,800 Speaker 2: hair could only be placed there by the person who 293 00:15:18,160 --> 00:15:22,080 Speaker 2: assaulted Mary Anne Flynn. The hair was tested, it wasn't 294 00:15:22,120 --> 00:15:25,400 Speaker 2: Tony's hair, it wasn't mary Anne's hair, So the state 295 00:15:25,440 --> 00:15:28,400 Speaker 2: had to come up with an explanation for how the 296 00:15:28,440 --> 00:15:31,400 Speaker 2: hair got there. The evidence that the state presented a 297 00:15:31,520 --> 00:15:35,280 Speaker 2: trial was that the hair was lying on her open hand, 298 00:15:35,480 --> 00:15:40,160 Speaker 2: which supported the theory that the hair fell from someone's head, 299 00:15:40,320 --> 00:15:44,160 Speaker 2: a Morgue attendant one of the personnel at the crime scene. 300 00:15:44,240 --> 00:15:48,160 Speaker 2: So what the state argued to the jury was disregard 301 00:15:48,200 --> 00:15:52,760 Speaker 2: the hair. What we found out later is that the hair, 302 00:15:52,960 --> 00:15:56,560 Speaker 2: as I noted, was found between her bound hands behind 303 00:15:56,600 --> 00:15:57,160 Speaker 2: her back. 304 00:15:57,480 --> 00:16:00,720 Speaker 1: And this is just a beginning. I mean, they even 305 00:16:00,800 --> 00:16:04,520 Speaker 1: planted that scene in opening statements. But there's so much 306 00:16:04,560 --> 00:16:06,560 Speaker 1: more here to unpack, so go ahead, Dale. 307 00:16:06,840 --> 00:16:11,320 Speaker 2: At trial, the state put on evidence that it swabbed 308 00:16:11,360 --> 00:16:16,440 Speaker 2: the victim's vagina, and that swab contained fluid deposited by 309 00:16:16,520 --> 00:16:20,119 Speaker 2: someone who had blood Type A and was a secretor, 310 00:16:20,360 --> 00:16:25,080 Speaker 2: and someone who was a secretor secretes antigens into their 311 00:16:25,200 --> 00:16:29,480 Speaker 2: bodily fluids. And the state put on evidence that Tony 312 00:16:29,880 --> 00:16:32,880 Speaker 2: was a Type A secretor, so he was likely to 313 00:16:32,960 --> 00:16:37,520 Speaker 2: be the perpetrator. What the state withheld was that Miss 314 00:16:37,560 --> 00:16:41,720 Speaker 2: Flynn was also an A type secretor, so that meant 315 00:16:41,880 --> 00:16:45,560 Speaker 2: that the fluids in Miss Flynn's body were just as 316 00:16:45,760 --> 00:16:49,280 Speaker 2: likely her own. Now that is the only physical evidence 317 00:16:49,440 --> 00:16:52,240 Speaker 2: that the state put on at trial. All the rest 318 00:16:52,280 --> 00:16:53,960 Speaker 2: of the evidence was circumstantial. 319 00:16:54,080 --> 00:16:57,080 Speaker 1: So the detective gave misleading Well that's not even a 320 00:16:57,080 --> 00:17:01,359 Speaker 1: strong enough way of putting it, but they gave misleading testimony. 321 00:17:01,640 --> 00:17:06,040 Speaker 1: During the trial, right, the prosecutor asks Detective Zalor, did 322 00:17:06,200 --> 00:17:08,000 Speaker 1: Tony ever make a statement to you? 323 00:17:08,160 --> 00:17:11,600 Speaker 2: And he said, Tony said to me, when I'm indicted, 324 00:17:11,840 --> 00:17:15,480 Speaker 2: can you let me know? The defense asked for copies 325 00:17:15,520 --> 00:17:18,920 Speaker 2: of notes. Detective said he didn't have any notes at 326 00:17:18,920 --> 00:17:23,520 Speaker 2: the time. The defense was not entitled to the police reports. 327 00:17:23,680 --> 00:17:27,359 Speaker 2: The defense lawyer made an objection. The judge ordered the 328 00:17:27,400 --> 00:17:32,119 Speaker 2: prosecutor to review the police reports. Prosecutor did so and said, 329 00:17:32,640 --> 00:17:36,560 Speaker 2: there is no report of any oral statement that Tony 330 00:17:36,640 --> 00:17:39,560 Speaker 2: made to detective Zalor. Well, a couple of years later, 331 00:17:39,760 --> 00:17:43,320 Speaker 2: when we made a Public Records Act request, we found 332 00:17:43,560 --> 00:17:48,000 Speaker 2: that type statement by Detective Zalor where he wrote Tony 333 00:17:48,080 --> 00:17:52,919 Speaker 2: said if I'm indicted, that is critical? And why is 334 00:17:53,280 --> 00:17:59,320 Speaker 2: when important? Because during the closing arguments the prosecutor hammered 335 00:18:00,119 --> 00:18:05,399 Speaker 2: on those words and said, this proves he had a 336 00:18:05,440 --> 00:18:06,280 Speaker 2: guilty mind. 337 00:18:06,920 --> 00:18:12,280 Speaker 1: If I'm indicted. When I'm indicted, it's actually kind of 338 00:18:12,480 --> 00:18:17,359 Speaker 1: terrifying to think that the substitution of that one little 339 00:18:17,400 --> 00:18:21,000 Speaker 1: word could have made such a huge difference in the 340 00:18:21,040 --> 00:18:25,000 Speaker 1: outcome of this case. What was your sense of things 341 00:18:25,280 --> 00:18:26,920 Speaker 1: while the jury was deliberating. 342 00:18:27,359 --> 00:18:30,160 Speaker 3: I totally expected to be found that guilty. I mean, 343 00:18:30,440 --> 00:18:34,240 Speaker 3: I didn't do it, you know. I look, I did time. 344 00:18:35,040 --> 00:18:38,320 Speaker 3: I copped out. I had aggravator robbers. I copped out. 345 00:18:38,400 --> 00:18:40,480 Speaker 3: I went to PLU that I did my time. You 346 00:18:40,960 --> 00:18:43,679 Speaker 3: commit a crime, you make a deal. Man. This case, 347 00:18:43,920 --> 00:18:46,840 Speaker 3: there's no deal making here. I didn't do it. 348 00:18:47,280 --> 00:18:50,560 Speaker 1: But they took whatever they could muster and whatever they 349 00:18:50,560 --> 00:18:54,960 Speaker 1: could hide to tell their story, and the jury bought it. 350 00:18:55,200 --> 00:18:58,960 Speaker 1: Lock Stock and Barrel. What was that moment like when 351 00:18:58,960 --> 00:19:00,159 Speaker 1: they found you guilty? 352 00:19:00,440 --> 00:19:04,760 Speaker 3: When their judge said guilty, I slammed my hand. It 353 00:19:04,800 --> 00:19:07,320 Speaker 3: wasn't a conscious thing I did. It was just a reaction. 354 00:19:07,960 --> 00:19:10,440 Speaker 3: I slammed my hand on the table and I said, 355 00:19:10,440 --> 00:19:14,280 Speaker 3: that's bullshit. They pulled the jury and they were asking 356 00:19:14,280 --> 00:19:16,480 Speaker 3: the jury, you know is this year verdic Conditioner called 357 00:19:16,480 --> 00:19:19,560 Speaker 3: twelve of them. And as they're doing it, I kept saying, now, man, 358 00:19:19,600 --> 00:19:21,159 Speaker 3: it's bullshit at any right. 359 00:19:21,560 --> 00:19:24,119 Speaker 1: And Dale, this is a laundry list of crimes that 360 00:19:24,160 --> 00:19:25,080 Speaker 1: he was convicted of. 361 00:19:25,600 --> 00:19:31,240 Speaker 2: Tony was convicted of aggravated murder, aggravated burglary, two counts 362 00:19:31,359 --> 00:19:36,119 Speaker 2: of rape. What's interesting about the rape counts is that 363 00:19:36,320 --> 00:19:40,560 Speaker 2: they were carbon copy counts, meaning the state said count 364 00:19:40,640 --> 00:19:45,000 Speaker 2: one of rape vaginal and or oral rape, second count 365 00:19:45,040 --> 00:19:49,960 Speaker 2: of rape vaginal and or oral rape. So we don't 366 00:19:49,960 --> 00:19:55,960 Speaker 2: have a distinction between the vaginal rape and the oral rape. 367 00:19:56,280 --> 00:20:00,560 Speaker 2: And this becomes critical later on in post conviction litigation. 368 00:20:01,040 --> 00:20:03,520 Speaker 1: Tony was sentenced to fifteen to twenty five years for 369 00:20:03,560 --> 00:20:06,439 Speaker 1: the burglary and rape counts for a summer of forty 370 00:20:06,440 --> 00:20:08,879 Speaker 1: five to seventy five years, and he received a death 371 00:20:08,920 --> 00:20:12,000 Speaker 1: sentence for the murder charge. Can you talk about I 372 00:20:12,040 --> 00:20:16,320 Speaker 1: mean death row, It's it conjures up really everyone's worst 373 00:20:16,400 --> 00:20:17,720 Speaker 1: nightmares back then. 374 00:20:17,760 --> 00:20:21,119 Speaker 3: They took me straight to Lucasville Pennitentiary where death row was, 375 00:20:21,160 --> 00:20:22,840 Speaker 3: and they put me right there in the cell on 376 00:20:22,920 --> 00:20:25,760 Speaker 3: death row. Death row is not like being in prison. 377 00:20:26,119 --> 00:20:29,000 Speaker 3: It's a whole different expanse and ten times worse than prison. 378 00:20:29,880 --> 00:20:31,760 Speaker 3: You know, I'm not going to the pro board and 379 00:20:31,840 --> 00:20:34,360 Speaker 3: going home next week because I stole a car. These 380 00:20:34,359 --> 00:20:36,280 Speaker 3: people are going to kill me if I don't get 381 00:20:36,320 --> 00:20:54,560 Speaker 3: back out. In nineteen eighty nine, the federal court on 382 00:20:54,640 --> 00:20:59,400 Speaker 3: a rape pace in Florida ruled death. DNA evidence is sound, 383 00:20:59,680 --> 00:21:04,320 Speaker 3: signific evidence and can be used to show a person 384 00:21:04,520 --> 00:21:07,840 Speaker 3: committed a crime or not. Immediately. Tom Shaw has seen 385 00:21:07,880 --> 00:21:11,280 Speaker 3: my trial lawyer file devotion requesting DNA testing. 386 00:21:11,520 --> 00:21:14,439 Speaker 1: Then nineteen eighty nine, an attorney for Tony requested files 387 00:21:14,440 --> 00:21:18,000 Speaker 1: from the Flynn autopsy. At that time, the vaginal at 388 00:21:18,160 --> 00:21:21,320 Speaker 1: oral slides could not be located. They were assumed to 389 00:21:21,400 --> 00:21:25,639 Speaker 1: have been destroyed. But nineteen ninety one is when you 390 00:21:25,720 --> 00:21:28,679 Speaker 1: got involved there, right, And this is when the three 391 00:21:28,680 --> 00:21:30,880 Speaker 1: slides were magically located. 392 00:21:31,040 --> 00:21:35,640 Speaker 2: In nineteen ninety one, Forensic Science Associates, at the request 393 00:21:35,720 --> 00:21:40,960 Speaker 2: of the Cayahaga County Coroner's Office, conducted DNA testing. I 394 00:21:41,119 --> 00:21:44,800 Speaker 2: found out about the three slides in nineteen ninety two 395 00:21:45,119 --> 00:21:48,800 Speaker 2: when I got a phone call from the county prosecutor saying, 396 00:21:49,080 --> 00:21:52,920 Speaker 2: we found these three slides. Now we would like some 397 00:21:52,960 --> 00:21:56,160 Speaker 2: of Tony's blood to compare it to the slides. These 398 00:21:56,160 --> 00:22:00,199 Speaker 2: are the same people who withheld evidence. This is the 399 00:22:00,240 --> 00:22:05,280 Speaker 2: same county where the coroner's office was a sloppy lab. 400 00:22:05,440 --> 00:22:09,680 Speaker 2: This is the same police department where the detective lied 401 00:22:09,760 --> 00:22:12,480 Speaker 2: on the stand. We need to be damn sure we 402 00:22:12,640 --> 00:22:17,080 Speaker 2: know where these slides came from. When we start digging 403 00:22:17,119 --> 00:22:20,920 Speaker 2: into it, what we learned is that all slides are 404 00:22:20,960 --> 00:22:24,639 Speaker 2: marked with the county corner case number. In Tony's case, 405 00:22:24,720 --> 00:22:28,560 Speaker 2: it was one nine zero seven three seven something like that. 406 00:22:28,800 --> 00:22:33,439 Speaker 2: There was one slide that was marked L nine zero, 407 00:22:33,760 --> 00:22:38,679 Speaker 2: so it was misnumbered, and that slide turned out to 408 00:22:38,760 --> 00:22:43,840 Speaker 2: be an important slide. And I resisted providing a DNA 409 00:22:43,960 --> 00:22:48,000 Speaker 2: sample from Tony for testing because I was concerned about 410 00:22:48,119 --> 00:22:50,960 Speaker 2: the chain of custody of those slides. 411 00:22:51,320 --> 00:22:53,680 Speaker 1: And there's a bit of a twisted history about these 412 00:22:53,680 --> 00:22:57,359 Speaker 1: three slides. So KaiA Hagen County first denied the existence 413 00:22:57,359 --> 00:23:00,399 Speaker 1: of these three slides in nineteen eighty nine. Then in 414 00:23:00,480 --> 00:23:04,520 Speaker 1: nineteen ninety one they magically find the slides, the missing slides. 415 00:23:04,560 --> 00:23:08,240 Speaker 1: There's three of them. Two are marked properly as Dale mentioned, 416 00:23:08,320 --> 00:23:11,159 Speaker 1: one vaginal and one oral, but the other one is 417 00:23:11,200 --> 00:23:14,320 Speaker 1: supposed to be an oral slide and is not marked properly, 418 00:23:14,760 --> 00:23:18,199 Speaker 1: the L nine zero slide that Dale mentioned. In nineteen 419 00:23:18,280 --> 00:23:22,320 Speaker 1: ninety one, a lab called Forensic Science Associates was tasked 420 00:23:22,400 --> 00:23:26,080 Speaker 1: with developing DNA profiles from all three slides, and with 421 00:23:26,160 --> 00:23:30,040 Speaker 1: the available technology and methods, was only able to develop 422 00:23:30,119 --> 00:23:33,840 Speaker 1: a testable male DNA profile from the oral slide marked 423 00:23:34,080 --> 00:23:38,280 Speaker 1: L nine zero. Now, Cuyahoga County had Tony's blood, hair, 424 00:23:38,440 --> 00:23:41,240 Speaker 1: and saliva samples that he had provided during the investigation, 425 00:23:41,359 --> 00:23:45,520 Speaker 1: but for whatever reason, those samples were not available to 426 00:23:45,680 --> 00:23:50,199 Speaker 1: FSA for comparison. Dale rightfully had serious concerns about the 427 00:23:50,280 --> 00:23:53,159 Speaker 1: chain of custody and so he denied access to a 428 00:23:53,200 --> 00:23:57,240 Speaker 1: new DNA sample from Tony. So the L nine zero 429 00:23:57,320 --> 00:24:01,680 Speaker 1: slide sat in a freezer until two thousand, when FSA 430 00:24:01,920 --> 00:24:05,120 Speaker 1: used the most current technology and methods to test it, 431 00:24:05,160 --> 00:24:08,840 Speaker 1: and in two thousand and seven a federal district court 432 00:24:09,119 --> 00:24:13,000 Speaker 1: ordered that Tony provide a sample for comparison to L 433 00:24:13,119 --> 00:24:16,640 Speaker 1: nine zero. So a report is generated and the prosecution 434 00:24:16,840 --> 00:24:20,320 Speaker 1: says that Tony couldn't be excluded as a contributor. But 435 00:24:20,720 --> 00:24:25,280 Speaker 1: for some strange reason, this report never makes it into evidence. 436 00:24:25,640 --> 00:24:28,400 Speaker 1: And you'd think, with how fertherly the state is trying 437 00:24:28,400 --> 00:24:31,320 Speaker 1: to hang onto the conviction, that a report like that 438 00:24:31,400 --> 00:24:33,920 Speaker 1: would have been the centerpiece of post conviction. 439 00:24:34,240 --> 00:24:39,840 Speaker 2: The state never presented those reports to either the federal 440 00:24:39,880 --> 00:24:44,679 Speaker 2: court or the state court. During the fourth post conviction hearing. 441 00:24:44,840 --> 00:24:49,719 Speaker 2: What the state did was simply waived around these reports, 442 00:24:49,880 --> 00:24:53,560 Speaker 2: but they never offered those reports into evidence. When we 443 00:24:53,720 --> 00:24:58,640 Speaker 2: tried to take depositions of the folks from FSA who 444 00:24:58,800 --> 00:25:03,240 Speaker 2: did the testing generated the reports, the state prevented us 445 00:25:03,359 --> 00:25:06,600 Speaker 2: from doing so and told the judge that they were 446 00:25:06,640 --> 00:25:10,080 Speaker 2: not going to present these reports. So all of this 447 00:25:10,600 --> 00:25:15,919 Speaker 2: information about this oral slide and whatever test results the 448 00:25:16,000 --> 00:25:20,919 Speaker 2: state has has never been tested through the adversary process. 449 00:25:21,320 --> 00:25:25,680 Speaker 2: None of the people who generated these documents have testified 450 00:25:25,880 --> 00:25:29,080 Speaker 2: under oath, and they have not been subject to the 451 00:25:29,359 --> 00:25:35,880 Speaker 2: rigorous scientific scrutiny before something like this is introduced into evidence. 452 00:25:36,280 --> 00:25:41,880 Speaker 2: So bottom line, the oral slide is not evidence. 453 00:25:42,320 --> 00:25:44,719 Speaker 1: If this was really something that could have hurt Tony, 454 00:25:44,800 --> 00:25:47,560 Speaker 1: I'm gonna speculate here, but I mean, it seems pretty 455 00:25:47,600 --> 00:25:50,359 Speaker 1: obvious they would have admitted it as evidence. They have 456 00:25:50,480 --> 00:25:53,760 Speaker 1: had so many opportunities to do so, but they've declined 457 00:25:53,840 --> 00:25:57,159 Speaker 1: every single time. So that brings us to two thousand 458 00:25:57,160 --> 00:25:59,560 Speaker 1: and nine, when Dale and the team found out that 459 00:25:59,600 --> 00:26:03,119 Speaker 1: back in two thousand, an assistant prosecutor requested that the 460 00:26:03,240 --> 00:26:09,000 Speaker 1: Cayahaga County Corner's Office tested two remaining properly labeled vaginal 461 00:26:09,040 --> 00:26:13,120 Speaker 1: and oral slides that had previously not yielded a DNA profile. 462 00:26:13,320 --> 00:26:17,840 Speaker 2: We were preparing for a hearing in the Habeas Corpus case, 463 00:26:18,080 --> 00:26:22,080 Speaker 2: and the judge allowed for some discovery and one of 464 00:26:22,119 --> 00:26:27,240 Speaker 2: the people that we deposed was the corner from Cayahoga County. 465 00:26:27,359 --> 00:26:30,959 Speaker 2: She brought documents that we had subpoenaed and we first 466 00:26:31,080 --> 00:26:34,639 Speaker 2: learned that in two thousand, the state did another test, 467 00:26:34,880 --> 00:26:39,240 Speaker 2: got results, didn't share those results with us, And in 468 00:26:39,240 --> 00:26:42,840 Speaker 2: twenty twelve we went back to state court for the 469 00:26:42,920 --> 00:26:47,040 Speaker 2: fourth time and had a hearing on that evidence that 470 00:26:47,400 --> 00:26:49,640 Speaker 2: was tested in two thousand. 471 00:26:49,920 --> 00:26:54,600 Speaker 1: So twenty fourteen, the defense expert, doctor Rick Staub, was 472 00:26:54,640 --> 00:26:58,440 Speaker 1: able to prove conclusively that Tony could be excluded as 473 00:26:58,440 --> 00:27:01,680 Speaker 1: a contributor to the vaginal slide and the two unknown 474 00:27:01,720 --> 00:27:06,240 Speaker 1: male contributors were in fact present. So Tony was acquitted 475 00:27:06,400 --> 00:27:10,160 Speaker 1: of the vaginal rape charge quitted and the second count 476 00:27:10,200 --> 00:27:14,160 Speaker 1: of rape was dismissed on the grounds that had lacked specificity. 477 00:27:14,320 --> 00:27:18,359 Speaker 3: And it was one year later, March sixth, twenty sixteen, 478 00:27:18,880 --> 00:27:21,640 Speaker 3: went to your appeals court three to zero. They all 479 00:27:21,680 --> 00:27:25,119 Speaker 3: three agreed, yes, the DNA proved I was innocent and 480 00:27:25,160 --> 00:27:26,160 Speaker 3: I got out that day. 481 00:27:27,080 --> 00:27:28,960 Speaker 1: Okay, go to that moment if you can. 482 00:27:29,480 --> 00:27:34,200 Speaker 3: Oh man, I've always been waiting for this moment to happen. 483 00:27:34,240 --> 00:27:37,600 Speaker 3: And my daughter Elena, the one that I shifts goodbye. 484 00:27:37,720 --> 00:27:40,200 Speaker 3: When I went and turned myself in, she came out 485 00:27:40,240 --> 00:27:45,119 Speaker 3: with two of my grandchildren, my granddaughter Raina and grandson Navan. 486 00:27:45,359 --> 00:27:48,120 Speaker 3: Oh Man, first time I got to see them in person. 487 00:27:48,200 --> 00:27:50,880 Speaker 3: You know, I called the money, well my wife, now, Beth. 488 00:27:50,960 --> 00:27:52,359 Speaker 3: I got a hold of her. I let her know 489 00:27:52,480 --> 00:27:53,200 Speaker 3: I'm home. 490 00:27:53,440 --> 00:27:55,840 Speaker 1: So tell us about your wife, Beth. How did that 491 00:27:55,920 --> 00:27:56,640 Speaker 1: all develop? 492 00:27:56,840 --> 00:27:59,240 Speaker 3: I've known her like twenty some years, you know, she 493 00:27:59,800 --> 00:28:02,600 Speaker 3: was in prison and everything. I mean, I've been in 494 00:28:02,600 --> 00:28:05,200 Speaker 3: love with that woman for many years. I mean I 495 00:28:05,760 --> 00:28:09,120 Speaker 3: knew that I was going to get out someday, and 496 00:28:09,160 --> 00:28:11,960 Speaker 3: we had, you know, decided when I got out, then 497 00:28:12,000 --> 00:28:14,239 Speaker 3: we'll see if we're going to have a relationship, you know, 498 00:28:14,320 --> 00:28:17,280 Speaker 3: and if we can have one, because you know, I'm 499 00:28:17,320 --> 00:28:20,880 Speaker 3: like a lab experiment. Maybe all the years locked up 500 00:28:21,760 --> 00:28:25,560 Speaker 3: so her and the kids would come over several times 501 00:28:25,600 --> 00:28:28,520 Speaker 3: a week, you know. When I first got home, finally, 502 00:28:29,000 --> 00:28:30,800 Speaker 3: I said, I don't know what we're waiting for. I said, Mab, 503 00:28:30,840 --> 00:28:32,879 Speaker 3: you know, I love you, and she's like, you know, 504 00:28:33,000 --> 00:28:35,159 Speaker 3: I love you too, And I said, so, you know 505 00:28:35,200 --> 00:28:38,000 Speaker 3: we're old. What are we waiting for. Let's get married. Man. 506 00:28:38,240 --> 00:28:40,520 Speaker 3: I don't spend my life locked up. I want to live. 507 00:28:41,040 --> 00:28:43,640 Speaker 3: And she's like, okay, but I got two granddaughters that 508 00:28:43,720 --> 00:28:45,440 Speaker 3: you're going to have to raise. And I'm like, maybe 509 00:28:45,960 --> 00:28:47,720 Speaker 3: I got no problem. I didn't get a chance to 510 00:28:47,800 --> 00:28:50,600 Speaker 3: raise my kids. Now I'm getting a second chance at life. 511 00:28:50,840 --> 00:28:54,480 Speaker 1: I'm sure everyone's wondering, Okay, so why in God's name 512 00:28:54,840 --> 00:28:56,720 Speaker 1: is he calling us from death row? 513 00:28:56,960 --> 00:29:01,320 Speaker 2: Well, the state appealed to the Ohio Supreme Court. What 514 00:29:01,440 --> 00:29:06,160 Speaker 2: the Ohio Supreme Court determined was that under the Ohio 515 00:29:06,400 --> 00:29:11,360 Speaker 2: DNA Testing Statute that in order for a death row 516 00:29:11,440 --> 00:29:16,720 Speaker 2: prisoner to get an evidentiary hearing on the issue of DNA, 517 00:29:17,120 --> 00:29:21,240 Speaker 2: the prisoner has to make the request for the testing. 518 00:29:21,720 --> 00:29:25,320 Speaker 2: What happened here is that the state did the testing 519 00:29:25,600 --> 00:29:29,280 Speaker 2: in two thousand, kept it from us until two thousand 520 00:29:29,360 --> 00:29:34,200 Speaker 2: and nine, and in twenty twelve through twenty fourteen, we 521 00:29:34,320 --> 00:29:38,600 Speaker 2: present evidence that Tony is excluded as the person who 522 00:29:38,680 --> 00:29:43,160 Speaker 2: committed the rape in a single assailant homicide. And what 523 00:29:43,200 --> 00:29:48,680 Speaker 2: the Ohio Supreme Court did was it put form over substance. 524 00:29:49,320 --> 00:29:53,560 Speaker 2: Because Tony did not request the DNA testing, he was 525 00:29:53,640 --> 00:29:57,880 Speaker 2: not entitled to that hearing. So in the court's view, 526 00:29:58,120 --> 00:30:01,120 Speaker 2: that hearing, where he was a design rated of the 527 00:30:01,200 --> 00:30:03,240 Speaker 2: rate charges never existed. 528 00:30:03,480 --> 00:30:08,080 Speaker 1: So you from your death row cell were required to 529 00:30:08,200 --> 00:30:13,280 Speaker 1: have requested the DNA that the state had insisted didn't exist. 530 00:30:14,120 --> 00:30:17,880 Speaker 3: That blew my mind. That next Friday, my wife, she 531 00:30:17,960 --> 00:30:20,120 Speaker 3: asked me to bake some mac and cheese. My other 532 00:30:20,160 --> 00:30:22,520 Speaker 3: stepdaughter she just moved into a place she had no 533 00:30:22,760 --> 00:30:25,120 Speaker 3: washer and dryer. I went. I got to Washington dryer. 534 00:30:25,440 --> 00:30:27,920 Speaker 3: Now I gotta go pick the grand babies that were raising, 535 00:30:28,080 --> 00:30:29,880 Speaker 3: Chloe and the Jay, and I gotta go pick them 536 00:30:29,920 --> 00:30:31,960 Speaker 3: up from school. I got to take the dog to 537 00:30:32,000 --> 00:30:34,000 Speaker 3: the vet. I got to wash her a dryer in 538 00:30:34,000 --> 00:30:36,560 Speaker 3: the back of the pickup truck. I'm doing normal stuff 539 00:30:36,600 --> 00:30:39,840 Speaker 3: that people do out there, you know, in life. You know, 540 00:30:39,920 --> 00:30:41,800 Speaker 3: I'm loving every minute of it. And I get out 541 00:30:41,800 --> 00:30:44,000 Speaker 3: of the truck and I'm heading heading to the porch, 542 00:30:44,040 --> 00:30:48,240 Speaker 3: and here come these six cars man Us Marshals jump out, 543 00:30:49,040 --> 00:30:52,440 Speaker 3: Highway patrol and Akron Police. I went from my front 544 00:30:52,480 --> 00:30:56,840 Speaker 3: yard to death Road, just like that. Man. No facts change, 545 00:30:56,880 --> 00:31:01,360 Speaker 3: no evidence changed, nothing changed, Get off, geth throw and 546 00:31:01,480 --> 00:31:07,000 Speaker 3: go home for nothing. It's like I'm in the Twilight zone, man, 547 00:31:07,240 --> 00:31:09,600 Speaker 3: you know. I mean I wake up every day and 548 00:31:09,600 --> 00:31:15,400 Speaker 3: it's like, Wow, I just can't hardly understand what I'm 549 00:31:15,440 --> 00:31:15,960 Speaker 3: doing here. 550 00:31:16,000 --> 00:31:21,000 Speaker 1: Man, Tony, I can only say that this will not stand. 551 00:31:21,040 --> 00:31:23,360 Speaker 1: We will not allow this to stand. We're going to 552 00:31:23,440 --> 00:31:26,520 Speaker 1: just grow this movement and we're going to find a 553 00:31:26,560 --> 00:31:28,760 Speaker 1: way to help your team get you justice. 554 00:31:29,040 --> 00:31:33,400 Speaker 3: Yeah. Law professor at Georgetown, Mark Howard, and three of 555 00:31:33,400 --> 00:31:35,960 Speaker 3: his students, they got interested in my case. They made 556 00:31:36,000 --> 00:31:38,840 Speaker 3: a documentary, and then they set up a website. I 557 00:31:38,840 --> 00:31:40,440 Speaker 3: guess they have a petition. 558 00:31:40,200 --> 00:31:43,760 Speaker 1: Which is Justice for a Panovich dot com. Please go 559 00:31:44,200 --> 00:31:46,640 Speaker 1: visit the website when there's a petition on the page, 560 00:31:46,640 --> 00:31:48,760 Speaker 1: and there will be a link to it in our 561 00:31:48,840 --> 00:31:52,640 Speaker 1: episode bio. So please go there as well and shout 562 00:31:52,640 --> 00:31:55,520 Speaker 1: out to the students for their great work. So it's 563 00:31:55,560 --> 00:31:58,520 Speaker 1: now time for us to turn to the closing of 564 00:31:58,520 --> 00:32:00,960 Speaker 1: the show. This is the part of the show where, 565 00:32:01,200 --> 00:32:05,800 Speaker 1: first of all, thank our distinguished guests, Dale Base, Federal 566 00:32:05,840 --> 00:32:11,720 Speaker 1: Public Defender Advocate extraordinaire Tony, thank you for being here 567 00:32:11,760 --> 00:32:14,360 Speaker 1: with us. Hang in there, buddy. We're going to bring 568 00:32:14,400 --> 00:32:17,520 Speaker 1: you home. And now I'm going to turn my microphone off, 569 00:32:17,720 --> 00:32:21,959 Speaker 1: kick back, close my eyes and listen. Dale you first, 570 00:32:22,080 --> 00:32:22,920 Speaker 1: and then Tony. 571 00:32:23,440 --> 00:32:28,000 Speaker 2: Thank you, Jason. It's been almost thirty six years since 572 00:32:28,080 --> 00:32:32,480 Speaker 2: Tony was sentenced to death. Since then, as his case 573 00:32:32,560 --> 00:32:35,840 Speaker 2: moved through the levels of a pellet review, evidence that 574 00:32:35,880 --> 00:32:39,760 Speaker 2: the state withheld a trial began to seep out, the 575 00:32:39,800 --> 00:32:44,680 Speaker 2: secretor's status of the victim, other suspects, lies by police 576 00:32:44,760 --> 00:32:49,640 Speaker 2: and prosecutors uncovered. The problem was and still is that 577 00:32:49,880 --> 00:32:54,160 Speaker 2: this case, like all death penalty cases, moved through the system, 578 00:32:54,360 --> 00:32:58,480 Speaker 2: the courts put form over substance in decline to look 579 00:32:58,480 --> 00:33:01,320 Speaker 2: at the merits of the claim. What we have here 580 00:33:01,520 --> 00:33:05,400 Speaker 2: is a wrongful conviction. How do we know that? It's 581 00:33:05,440 --> 00:33:09,280 Speaker 2: because Tony is excluded from a rape in a case 582 00:33:09,680 --> 00:33:12,960 Speaker 2: where the state's theory is that there was a single assailant. 583 00:33:13,200 --> 00:33:15,680 Speaker 2: This doesn't make sense to me as a lawyer, and 584 00:33:15,760 --> 00:33:19,600 Speaker 2: may not make sense, but people need to understand that 585 00:33:19,720 --> 00:33:23,000 Speaker 2: the system is constructed this way. The system needs to 586 00:33:23,040 --> 00:33:26,400 Speaker 2: be fixed, and we need to write this wrong in 587 00:33:26,520 --> 00:33:30,680 Speaker 2: Tony's case. The team that has worked on this case 588 00:33:30,760 --> 00:33:34,800 Speaker 2: over the years from my office from Mark Devan's office, 589 00:33:35,040 --> 00:33:37,720 Speaker 2: from the law firm of Crol and Mooring. We're not 590 00:33:37,840 --> 00:33:38,720 Speaker 2: going to give up. 591 00:33:38,920 --> 00:33:40,160 Speaker 1: Tony over to you. 592 00:33:40,880 --> 00:33:43,400 Speaker 3: First of all, Jason, I want to thank you for 593 00:33:43,840 --> 00:33:47,040 Speaker 3: having me on your podcast and for giving me this 594 00:33:47,160 --> 00:33:50,560 Speaker 3: opportunity to tell my story. From the very beginning, I 595 00:33:50,600 --> 00:33:53,880 Speaker 3: said I was innocent. I didn't commit this crime. I 596 00:33:53,920 --> 00:33:56,720 Speaker 3: had no problem cooperating with the cops, given in my 597 00:33:56,800 --> 00:34:00,800 Speaker 3: hair and blood saliva, answering all their questions. I'm innocent. 598 00:34:01,240 --> 00:34:05,720 Speaker 3: Come on here I am. Thirty six years later, after 599 00:34:05,800 --> 00:34:10,160 Speaker 3: being sent home, being found innocent and sent home, I'm 600 00:34:10,200 --> 00:34:14,279 Speaker 3: back on death row on a technicality, amazing as it is, 601 00:34:14,440 --> 00:34:17,960 Speaker 3: and I'm still innocent. I didn't do this. All I 602 00:34:18,000 --> 00:34:21,239 Speaker 3: want is my day in court. That's it. Just what 603 00:34:21,320 --> 00:34:25,000 Speaker 3: are they afraid of? Let a jury see all the evidence, 604 00:34:25,040 --> 00:34:27,160 Speaker 3: you know, and I'm confident. I have no doubt in 605 00:34:27,160 --> 00:34:30,360 Speaker 3: my mind that they'll find me not guilty. There's no 606 00:34:30,440 --> 00:34:32,799 Speaker 3: doubt because I didn't commit this crime, and I think 607 00:34:32,840 --> 00:34:35,680 Speaker 3: the evidence. In fact, I don't know what I can 608 00:34:35,800 --> 00:34:39,880 Speaker 3: say or do to convince people of my innocence. You know, 609 00:34:40,040 --> 00:34:42,880 Speaker 3: I've been saying it for years. Just look at the evidence. 610 00:34:42,960 --> 00:34:47,239 Speaker 3: Look at the fact, and again I say, I appreciate 611 00:34:47,680 --> 00:34:51,239 Speaker 3: having this opportunity, and Jason, you're doing a good job 612 00:34:51,320 --> 00:34:55,000 Speaker 3: here for society, and I appreciate everything that you're doing, 613 00:34:55,040 --> 00:34:57,279 Speaker 3: and I really appreciate what you're doing for me. 614 00:35:04,280 --> 00:35:07,480 Speaker 1: Thank you for listening to Wrongful Conviction with Jason Flahm. 615 00:35:07,680 --> 00:35:10,640 Speaker 1: Please support your local innocence projects and go to the 616 00:35:10,719 --> 00:35:12,680 Speaker 1: link in our bio to see how you can help. 617 00:35:13,120 --> 00:35:16,680 Speaker 1: I'd like to thank our production team Connor Hall, Jeff Cliburn, 618 00:35:16,800 --> 00:35:20,040 Speaker 1: and Kevin Warnis. The music on the show, as always, 619 00:35:20,120 --> 00:35:23,640 Speaker 1: is by three time OSCAR nominated composer Jay Ralph. Be 620 00:35:23,719 --> 00:35:26,960 Speaker 1: sure to follow us on Instagram at Wrongful Conviction and 621 00:35:27,040 --> 00:35:31,320 Speaker 1: on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason 622 00:35:31,360 --> 00:35:33,759 Speaker 1: Flahm is a production of Lava for Good Podcasts and 623 00:35:33,840 --> 00:35:38,920 Speaker 1: association with Signal Company Number one