Speaker 1: It was the summer of nine four. Tonya Panovitch was
Speaker 1: in the process of building his house painting business on
Speaker 1: the west side of Cleveland. On August, a woman named
Speaker 1: Mary Anne Flynn was beaten and strangled to death. Authorities
Speaker 1: collected seamen from her body. Police soon identified plenty of
Speaker 1: likely suspects, including a violent ex boyfriend, an ex tenant
Speaker 1: who had been accused of rape, and a few other
Speaker 1: men who had keys to her house, as well as
Speaker 1: Tonya Panovitch, who had done some painting for her earlier
Speaker 1: that summer, but Tony's whereabouts were entirely accounted for. On
Speaker 1: the night of her murder, Tony was perhaps too cooperative
Speaker 1: with police, refusing the lawyer, answering all their questions, and
Speaker 1: even voluntarily giving up hair, blood, and saliva samples. He
Speaker 1: happened to have the same blood type as fluids found
Speaker 1: at the scene, but the state presented that piece of
Speaker 1: evidence without mentioning that Ms. Flynn had that exact same
Speaker 1: blood type. The state hit evidence the detective I'd understand
Speaker 1: and in without DNA testing available to prove his innocence,
Speaker 1: Tony would have to wait for that scientific advancement to
Speaker 1: free him from his death sentence after thirty two years,
Speaker 1: but remarkably, his time on death row didn't end there.
Speaker 1: This is Wrongful Conviction with Jason Flam. Welcome back to
Speaker 1: Wrongful Conviction with Jason Flam, and soon you'll be hearing
Speaker 1: the subject of this episode, a man named Anthony A.
Speaker 1: Panovich calling in from death row in Ohio, where he
Speaker 1: has been for the better part of four decades for
Speaker 1: a crime he didn't commit. With us on the show
Speaker 1: today is Dale Bach, federal public defender who has been
Speaker 1: the lead lawyer and staunch advocate for miss to A.
Speaker 1: Potovich since probably before some of you were born, that's
Speaker 1: how long he's been working on this case. So Dale,
Speaker 1: Welcome back to Wrongful Conviction. Thank you, Jason, it's good
Speaker 1: to be back. Hello. This is a prepaid debit call
Speaker 1: from an inmate at a Chilla Coffee Correctional institution. To
Speaker 1: accept this call, press zero, thank you for using GTL. Hey, Tony,
Speaker 1: I'm happy to have you here with us, but obviously
Speaker 1: I'm really sorry that it's under these circumstances. All right,
Speaker 1: Thanks Jason, I appreciate that, appreciate this opportunity to tell
Speaker 1: my story. Now, Tony, I want to go back to
Speaker 1: before any of this happened. You grew up in Ohio, right, Oh, yeah, yeah,
Speaker 1: I grew up on on the east side of Cleveland.
Speaker 1: You quit going to school and about about the eighth grade.
Speaker 1: I just started working when I was twelve years old.
Speaker 1: I like construction work, though I like working outside. I
Speaker 1: was a truck driver for about five years. Then I
Speaker 1: was trying to get a pay eating business started because
Speaker 1: I figured, you know, the summer months, I cale workout
Speaker 1: side painting, and then in the winter months I would
Speaker 1: be able to drive truck. And so this brings us
Speaker 1: to the summer of nineteen eighty four. Two neighbors have
Speaker 1: both hired you to do some painting, Mary Ann Flynn
Speaker 1: and the guy that lived across the street. For her,
Speaker 1: you painted the outside bottom half of Miss Flynn's house.
Speaker 1: Now she intended to paint her window frames herself, and
Speaker 1: then you started working across the street painting her neighbor's
Speaker 1: entire house. And that brings us up to August twenty
Speaker 1: three four. You noticed that she hadn't gotten to painting
Speaker 1: the windows yet and tried to get a little more
Speaker 1: business for yourself. So when I seen her, I walked
Speaker 1: over I asked her if she wasn't going to be
Speaker 1: able to get to those frames that I said she wanted,
Speaker 1: I could get it done, you know, because the weather
Speaker 1: has changed. She said, well, she'd let me know. I
Speaker 1: think I told her it was going to be like
Speaker 1: sixty bucks or something to paint them. So that was
Speaker 1: the last time I had seen her, talk to her
Speaker 1: was around four thirty. Well, went back across the street,
Speaker 1: we finished up the job, and then we headed to
Speaker 1: the bar. That's what I did the rest of the night,
Speaker 1: you know, was bar hopping in the neighborhood. So later
Speaker 1: that night, mary Ann Flynn was raped and brutally murdered
Speaker 1: in her bedroom. She'd been strangled and severely beaten, and
Speaker 1: siemen was found and collected from both her mouth and
Speaker 1: her vagina. Yes, so mary Anne's body was transported to
Speaker 1: the County Coroner's office in Kyahaga County, Okay. And I
Speaker 1: got to stop for a second, because Kyahaga County was
Speaker 1: notorious as one of, if not the most corrupt, disorganized,
Speaker 1: dysfunctional crime labs in the entire country at that time.
Speaker 1: The police, the prosecutors, and the corner's office have all
Speaker 1: been the subject of news articles, scandals, podcasts for being
Speaker 1: sloppy or outright corrupt. And let me give you a
Speaker 1: couple of examples. Lilyana Sigura with The Intercept, did some
Speaker 1: great reporting that documented a pattern of misconduct in the
Speaker 1: Kyahaga County Prosecutor Office, And in two thousand and eighteen,
Speaker 1: season three of the podcast serial featured the Cleveland Police Department,
Speaker 1: the Prosecutor's office, and the courts in Kihaga County as
Speaker 1: being somewhat corrupt, and the folks at the Kiahaga County
Speaker 1: Coroner's Office admitted that they ran a sloppy lab. So
Speaker 1: you have all that going on during the time that
Speaker 1: Tony's case was making its way through the court system
Speaker 1: in Kihaga County. And of course this crime labs dubious
Speaker 1: work will become relevant later. But first, Tony, let's get
Speaker 1: back to the investigation of your alibi. You had gone
Speaker 1: bar hopping. The bars you went to that night, you
Speaker 1: were a bit of a regular at and you're a
Speaker 1: whereabouts were accounted for by the people who saw you
Speaker 1: all through the night. Oh yeah, these are people. I
Speaker 1: frequented these bars, and these people knew who I was.
Speaker 1: And as far as them telling the cops that I
Speaker 1: was there at the bar. There was no problem as
Speaker 1: far as a by win. I mean, I was where
Speaker 1: I said I was, and then when I left one bar,
Speaker 1: went to the next one within the time that it
Speaker 1: would have taken normally to get from A to B.
Speaker 1: No hour delays in between or nothing like that. There
Speaker 1: was no skipping. So wherever I was that night, whatever
Speaker 1: bar I went to, whatever time I got there and left,
Speaker 1: they know that was all covered. So how did you
Speaker 1: get pulled into this? Well, I'll tell you, Jason, here's
Speaker 1: what the homicide detective told me. My name came up
Speaker 1: in the investigation as they were canvassing the neighborhood, and
Speaker 1: I go downtown with them and they started asking me
Speaker 1: questions and they tell me, well, we're gonna have to
Speaker 1: hold you. We want to check your alibi. They kept
Speaker 1: me in jail that night next day, and they wondered
Speaker 1: if I would mind giving them a blood sample. I'm like, yeah, no,
Speaker 1: I got no problem with that. They take my blood,
Speaker 1: they want to take some of my hair and my saliva,
Speaker 1: so I give them all that and they're asking me
Speaker 1: if you want a lawyer, you know, before we have
Speaker 1: that I don't need no lawyer. Man. You know, I'm
Speaker 1: cooperating a hundred per cent because I didn't do it.
Speaker 1: Then they've asked, can we go to your house and
Speaker 1: look at your clothes? I'm like, yeah, okay, cool. See
Speaker 1: I'm not too upset about why they are doing this
Speaker 1: because I am an extra con right there, four years
Speaker 1: or one month for m robbery. I had a coming.
Speaker 1: I did my time, you know, and they told me
Speaker 1: that right off to jump. Being an extra con made
Speaker 1: him look at me a little harder than you know,
Speaker 1: average Joe. I see, okay, cool. So they went to
Speaker 1: my house, they get most of my clothes, and they
Speaker 1: keep me in jail another night. Well the next day,
Speaker 1: by now i'm past off. I'm talking to detectives aller.
Speaker 1: I said, that's it. I'm ready to go. He said, well,
Speaker 1: you know, we don't have to charge you. We could
Speaker 1: hold you so many days. You know, it was up
Speaker 1: that day. I said, this is it, man, I'm going home.
Speaker 1: He said, well, let me come back this afternoon. He said,
Speaker 1: I'm waiting on the lab report. Anyhow, he come back
Speaker 1: about three three thirty, got me out of the set.
Speaker 1: So I leave, I go home. I'm not thinking too
Speaker 1: much of it. I'm just wondering what I'm going to
Speaker 1: get my clothes back, because when I get home, I
Speaker 1: see they got most of them gone. So maybe five
Speaker 1: days later, I had a ticket that I had gotten
Speaker 1: a couple of weeks earlier than I had to go
Speaker 1: to court for. So I called down to Detective Zaler.
Speaker 1: I say, listen, I'm gonna be a court tomorrow. I
Speaker 1: want to come pick up my clothes. He said, no problem.
Speaker 1: So when I go down to go to court, he
Speaker 1: tells me he wants me to come upstairs because he
Speaker 1: wanted the corner to take a look at me. They
Speaker 1: take me in the room. The corner comes in. They say, well,
Speaker 1: they want to look at my tenis okay? So I
Speaker 1: let her look. She looks at it and says, no,
Speaker 1: this isn't it and leaves the room. Wait wait, why, well,
Speaker 1: I could I know what it is? Now? There was
Speaker 1: this guy named Ronnie Shelton. You know, he's called the
Speaker 1: West Side Rapists. He was going around rape and rape
Speaker 1: and women all over that area on the west side
Speaker 1: of Cleveland at that time, and he had something wrong.
Speaker 1: I guess he had some kind of scabs and stuff
Speaker 1: on his dick that they wanted to see if I
Speaker 1: had on mine, and well, of course it wasn't me,
Speaker 1: so all right, So continue, was there anything else elevent
Speaker 1: about this contact with Zaler? I had called to ask
Speaker 1: about my clothes before I went down to the traffic ticket.
Speaker 1: Just before he hung up, he said, Uh, well you know, Tony,
Speaker 1: Uh you can still get indicted for this. So I said,
Speaker 1: if that happens, give me a call. And that conversation
Speaker 1: comes up later at trial when Detective Salar gives it. Well,
Speaker 1: he gave a very misleading testimony, but for now there's
Speaker 1: this indictment threat looming. But you're not too worried because,
Speaker 1: after all, you're innocent. Weeks go by and nothing happens
Speaker 1: until you were a house sitting for your in laws.
Speaker 1: So this is like October. Second, I come out to shower.
Speaker 1: My wife said, in the shower, it's about noon. The
Speaker 1: phone rings. Detective Seller. I need you to come down.
Speaker 1: I talk to I said, yeah, well you know I
Speaker 1: told you everything. Man, I ain't got no more to add.
Speaker 1: He's like, no, no, Tony, I'm gonna have to hold
Speaker 1: you for trial. Man, I need you to come down.
Speaker 1: I said, all right, all right, I said, I'll be
Speaker 1: down a little w I said, I'm gonna take my
Speaker 1: wife over to my mother's and we'll look at them.
Speaker 1: Know what's going on, you know. I said, I don't
Speaker 1: want him to see on the news that you rest
Speaker 1: me for this stuff, you know. And he said, yeah, okay,
Speaker 1: no problem, just come on down later on this afternoon.
Speaker 1: So I hang up the phone. I'm thinking, you know,
Speaker 1: if I've never heard of ships like this, this is bullshit.
Speaker 1: So I walk outside. I figured the cops are out there.
Speaker 1: I just don't want to busting through the door. I
Speaker 1: got my daughter's in a little bassett there on the couch, right,
Speaker 1: my wife's in this shower. You know, if I really
Speaker 1: am going to be on trial for something a crime
Speaker 1: like this, they gotta be standing right out there with shuckgun.
Speaker 1: So I walk outside and there's nothing, nothing, nobody. I
Speaker 1: stand there for a few minutes. Nothing. I go back
Speaker 1: in the house, call a lawyer up and I asked
Speaker 1: him to check out it. He called me back and
Speaker 1: he said, wow, Tony, he said, you've been indicted. Man,
Speaker 1: you're facing the electric chair. He asked me what I
Speaker 1: was gonna do. I said, well, you know, I'm going
Speaker 1: on my mom's like I told him, and I'll be
Speaker 1: down later on this afternoon, you know. I mean, this
Speaker 1: was a noon or twelve thirty when he calls me
Speaker 1: on the phone and arrested me for this terrible crime.
Speaker 1: I mean, it's a terrible crime. There's no offense or
Speaker 1: but and he arrested me on the telephone, you know,
Speaker 1: tell me, I take my time coming down, so you know,
Speaker 1: my baby is only six weeks old. I kissed my daughter,
Speaker 1: I kissed my wife. Tell my brother Vince, you know,
Speaker 1: catch you guys later, you know. And I went down
Speaker 1: to the jail probably about four thirty. I mean, I
Speaker 1: gotta believe they knew that you weren't really the rapist
Speaker 1: and murderer. Otherwise is the way they behave this way. Now,
Speaker 1: I'll tell you what he said. I get down there,
Speaker 1: we go in this room, and I said, look, man,
Speaker 1: why are you doing this to me? He said, I'm
Speaker 1: not the one doing it. The prosecutor is the one
Speaker 1: that got the indictment against you. I said, but what
Speaker 1: I mean, man, And he says, and this is for sure,
Speaker 1: never forget this. He said, Well, Tony, he said, you
Speaker 1: know this is a high profile case, and there's a
Speaker 1: lot of pressure on us to get somebody, you know,
Speaker 1: all your alibi. This is their drunks, and you look
Speaker 1: worse than anybody else. And I'm like, wow, man, that
Speaker 1: ain't right, you know. He said, well, you know he
Speaker 1: should make sure you demand his beauty child. You got
Speaker 1: to do it within ninety days. I said, yeah, yeah.
Speaker 1: He said, what are you gonna do about your business?
Speaker 1: I said, trying to get it going. He says, you know,
Speaker 1: He said, they're going to drag your name through the mudd.
Speaker 1: He said, you're not going to be able to get
Speaker 1: work in this town and cleave. I said, well, maybe
Speaker 1: I'd go out to the suburbs, you know, because that's
Speaker 1: where my inlaws live in. I mean, this is a
Speaker 1: guy who's locking me up on a charge of burglary,
Speaker 1: rape and murder, the same one who arrested me on
Speaker 1: the telephone. This episode is brought to you by Stand Together.
Speaker 1: Stand Together as a philanthropic community dedicated to helping people
Speaker 1: improve their lives. For more than twenty years, Stand Together
Speaker 1: and its partners have been on the front lines of
Speaker 1: criminal justice reform by empowering people to take action, supporting
Speaker 1: the on profits and working with businesses. Stand Together tackles
Speaker 1: the root causes of problems in our communities and empowers
Speaker 1: those closest to the problems to drive solutions. Solutions like
Speaker 1: reducing unjust prison sentences through the First Step Act, empowering
Speaker 1: community based programs and help people re enter society, and
Speaker 1: now working to bridge divides in our communities. To learn
Speaker 1: how you may get involved, visit stand Together dot org
Speaker 1: slash conviction. This episode is underwritten by the ai G
Speaker 1: pro Bono Program. A i G is a leading global
Speaker 1: insurance company, and for over a decade, the ai G
Speaker 1: pro Bono Program has provided thousands of hours of free
Speaker 1: legal services and other support to nonprofit organizations and individuals
Speaker 1: most in need. More recently, the program added criminal and
Speaker 1: social justice reform as a key pillar of its mission.
Speaker 1: The only evidense against him was purely circumstantial, definitely wrong place,
Speaker 1: wrong time, he was painting the house. There was no
Speaker 1: denying that he knew the victim, but that doesn't make
Speaker 1: him guilty. A lot of people were in contact with
Speaker 1: her that same day. That's not a basis on which
Speaker 1: to convict somebody and sentence them to death, especially when
Speaker 1: none of the rest of the evidence matched up, and
Speaker 1: then the trial itself. Dale. Now this is before you
Speaker 1: got involved. It's so long ago. What did the trial
Speaker 1: take place? December of nine? And the investigation that the
Speaker 1: two lawyers representing Tony did to prepare for trial wasn't
Speaker 1: as robust as it should have been. They went out
Speaker 1: and spoke to a few of Tony's witnesses, but they
Speaker 1: did not hire experts to look at the forensics. They
Speaker 1: did not interview the detectives. They had a very cursory
Speaker 1: interview with the people at the coroner's office. So without
Speaker 1: a thorough investigation, the prosecution was able to pull a
Speaker 1: number of dirty tricks. And this tangled web started really
Speaker 1: back when the autopsy was conducted. Right, Yes, there was
Speaker 1: a piece of hair that was found between her bound
Speaker 1: hands behind her back, and that hair could only be
Speaker 1: placed there by the person who assaulted Mary Ann Flynn.
Speaker 1: The hair was tested, it wasn't Tony's hair, it wasn't
Speaker 1: Mary Anne's hair, So the state had to come up
Speaker 1: with an explanation for how the hair got there. The
Speaker 1: evidence that the state presented a trial was that the
Speaker 1: hair was lying on her open hand, which supported the
Speaker 1: theory that the hair fell from someone's head, a Morgue attendant,
Speaker 1: one of the personnel at the crime scene. So what
Speaker 1: the state argued to the jury was disregard the hair.
Speaker 1: What we found out later is that the hair, as
Speaker 1: I noted, was found between her bound hands behind her back.
Speaker 1: And this is just the beginning. I mean, they even
Speaker 1: planted that seed in opening statements. But there's so much
Speaker 1: more here to unpack, so go ahead, Dale. At trial,
Speaker 1: the state put on evidence that it swabbed the victims vagina,
Speaker 1: and that swab contained fluid deposited by someone who had
Speaker 1: blood type A and was a secretor, and someone who
Speaker 1: was a secret or secrets antigens into their bodily fluids.
Speaker 1: And the state put on evidence that Tony was a
Speaker 1: Type A secret or, so he was likely to be
Speaker 1: the perpetrator. What the state withheld was that Ms. Flynn
Speaker 1: was also an A type secretor, so that meant that
Speaker 1: the fluids in Miss Flynn's body were just as likely
Speaker 1: her own. That is the only physical evidence that the
Speaker 1: state put on at trial. All the rest of the
Speaker 1: evidence was circumstantial, So the detective gave misleading. Well that's
Speaker 1: not even a strong enough way of putting it, but
Speaker 1: they gave misleading testimony during the trial, right the prosecutor
Speaker 1: asks detective Zaler, did Tony ever make a statement to you?
Speaker 1: And he said, Tony said to me, when I'm indicted,
Speaker 1: can you let me know? The defense asked for copies
Speaker 1: of notes. Detective said he didn't have any notes at
Speaker 1: the time. The defense was not entitled to the police reports.
Speaker 1: The defense lawyer made an objection. The judge ordered the
Speaker 1: prosecutor to review the police reports. Prosecutor did so and said,
Speaker 1: there is no report of any oral statement that Tony
Speaker 1: made to detective Zaler. A couple of years later, when
Speaker 1: we made a Public Records Act request, we found that
Speaker 1: type statement by Detective Zaler where he wrote Tony said,
Speaker 1: if I'm indicted, that is critical? And why is when important?
Speaker 1: Because during the closing arguments the prosecutor hammered on those
Speaker 1: words and said, this proves he had a guilty mind.
Speaker 1: If I'm indicted when I'm indicted, It's actually kind of
Speaker 1: terrifying to think that the substitution of that one little
Speaker 1: word could have made such a huge difference in the
Speaker 1: outcome of this case. What was your sense of things
Speaker 1: while the jury was deliberating. I totally expected to be
Speaker 1: found that guilty. I mean, I didn't do it, you know.
Speaker 1: I look, I did time. I copped out. I had
Speaker 1: aggregated Robbie. I copped out. I went to bease that
Speaker 1: I did my time. You get, you commit a crime,
Speaker 1: you make a deal man. In this case, there's no
Speaker 1: deal making here. I didn't do it. But they took
Speaker 1: whatever they could muster and whatever they could tide to
Speaker 1: tell their story, and the jury bought it. Lock stock
Speaker 1: and barrel. What was that moment like when they found
Speaker 1: you guilty? When they judge said guilty, I slammed my hand.
Speaker 1: It wasn't a conscious thing I did. It was just
Speaker 1: a reaction. I slammed my hand on the table and
Speaker 1: I said, that's bullshit. They pulled the jury and they
Speaker 1: were asking the jury, you know, is this your verdict?
Speaker 1: Conditioner called twelve of them, And as they're doing it,
Speaker 1: I kept saying, no, man, if bullshit and any right
Speaker 1: and Dale. This is a laundry list of crimes that
Speaker 1: he was convicted of. Tony was convicted of aggravated murder,
Speaker 1: aggravated burglary, two counts of rape. What's interesting about the
Speaker 1: rape counts is that they were carbon copy counts, meaning
Speaker 1: the state said count one of rape vaginal and or
Speaker 1: oral rape, second count of rape vaginal and or oral rape.
Speaker 1: So we don't have a distinction between the vaginal rape
Speaker 1: and the oral rape. And this becomes critical later on
Speaker 1: in post conviction litigation. Tony was sentenced to fifteen to
Speaker 1: twenty five years for the burglary and rape counts for
Speaker 1: a sum of forty five to seventy five years, and
Speaker 1: he received a death sentence for the murder charge. Can
Speaker 1: you talk about I mean death row, It's it conjures
Speaker 1: up really everyone's worst nightmares. Back then. They took me
Speaker 1: straight to Lucasville Contentiary where death row was, and they
Speaker 1: put me right there in the cell on death row.
Speaker 1: Death row is not like being in prison. It's a
Speaker 1: whole different experience, ten times worse than prison. You know,
Speaker 1: I'm not going to the pro board and going home
Speaker 1: next week because I stole a car. These people are
Speaker 1: gonna kill me if I don't get back out. Nine.
Speaker 1: The Federal Court on a rape pace in Florida ruled
Speaker 1: that DNA evidence is sound sign evidence and can be
Speaker 1: used to show a person committed a crime. Or not immediately,
Speaker 1: tom Shaw see my trial lawyer filed devotion requesting DNA testing.
Speaker 1: Then nineteen eighty nine, an attorney for Tony requested files
Speaker 1: from the Flynn autopsy. At that time, the vaginal at
Speaker 1: oral slides could not be located. They were assumed to
Speaker 1: have been destroyed. But nineteen one is when you got
Speaker 1: involved there, right, And this is when the three slides
Speaker 1: were magically located in Forensic science associates, at the request
Speaker 1: of the Cayahaga County Corner's Office, conducted DNA testing. I
Speaker 1: found out about the three slides in two when I
Speaker 1: got a phone call from the county prosecutor saying, we
Speaker 1: found these three slides. Now we would like some of
Speaker 1: Tony's blood to compare it to the slides. These are
Speaker 1: the same people who withheld evidence. This is the same
Speaker 1: county where the Corner's office was a sloppy lab. This
Speaker 1: is the same police department where the detective light on
Speaker 1: the stand. We need to be damn sure we know
Speaker 1: where these slides came from. When we start digging into it.
Speaker 1: What we learned is that all slides are marked with
Speaker 1: the county corner case number. In Tony's case, it was
Speaker 1: one nine zero seven three seven something like that. There
Speaker 1: was one slide that was marked L nine zero, so
Speaker 1: it was misnumbered, and that slide turned out to be
Speaker 1: an important slide. And I resisted providing a DNA sample
Speaker 1: from Tony for testing because I was concerned about the
Speaker 1: chain of custody of those slides. And there's a bit
Speaker 1: of a twisted history about these three slides. So kaya
Speaker 1: Hagan County first denied the existence of these three slides.
Speaker 1: Then in they magically find the slides, the missing slides.
Speaker 1: There's three of them. Two are marked properly as Dale mentioned,
Speaker 1: one vaginal and one oral, but the other one is
Speaker 1: supposed to be an oral slide and is not marked properly,
Speaker 1: the L nine zero slide that Dale mentioned in a
Speaker 1: lab called Forensic Science Associates was tasked with developing DNA
Speaker 1: profiles from all three slides, and with the available technology
Speaker 1: and methods, was only able to develop a testable male
Speaker 1: DNA profile from the oral slide marked L nine zero. Now,
Speaker 1: Cuyahoga County had Tony's blood, hair, and saliva samples that
Speaker 1: he had provided during the investigation, but for whatever reason,
Speaker 1: those samples were not available to f s A for comparison.
Speaker 1: Dale rightfully had serious concerns about the chain of custody,
Speaker 1: and so he denied access to a new DNA sample
Speaker 1: from Tony. So the L nine zero slide sat in
Speaker 1: a freezer until two thousand six, when fs A used
Speaker 1: the most current technology and methods to test it, and
Speaker 1: in two thousand and seven a federal district court ordered
Speaker 1: that Tony provide a sample for comparison to all nine zero.
Speaker 1: So a report is generated and the prosecution says that
Speaker 1: Tony couldn't be excluded as a contributor. But for some
Speaker 1: strange reason, this report never makes it into evidence. And
Speaker 1: you think, with how fervently the state is trying to
Speaker 1: hang onto the conviction, that a report like that would
Speaker 1: have been the centerpiece of post conviction. The state never
Speaker 1: presented those reports to either the federal court or the
Speaker 1: state court during the fourth post conviction hearing. What the
Speaker 1: state did was simply waived around these reports, but they
Speaker 1: never offered those reports into evidence. When we tried to
Speaker 1: take depositions of the folks from f s A who
Speaker 1: did the testing generated the reports, the state prevented us
Speaker 1: from doing so and told the judge that they were
Speaker 1: not going to present these reports. So all of this
Speaker 1: information about this oral slide and whatever test results the
Speaker 1: state has has never been tested through the adversary process.
Speaker 1: None of the people who generated these documents have testified
Speaker 1: under oath, and they have not been subject to the
Speaker 1: rigorous scientific scrutiny before something like this is introduced into evidence.
Speaker 1: So bottom line, the oral slide is not evidence. If
Speaker 1: this was really something that could have heard Tony, I'm
Speaker 1: gonna speculate here, but I mean, it seems pretty obvious
Speaker 1: they would have admitted it as evidence. They have had
Speaker 1: so many opportunities to do so, but they've declined every
Speaker 1: single time. So that brings us to two thousand nine,
Speaker 1: when Dale and the team found out that back in
Speaker 1: two thousand an assistant prosecutor requested that the Kiahaga County
Speaker 1: Corner's office tested two remaining properly labeled vaginal and oral
Speaker 1: slides that had previously not yielded a DNA profile. We
Speaker 1: were preparing for a hearing in the Habeas Corpus case,
Speaker 1: and the judge allowed for some discovery, and one of
Speaker 1: the people that we deposed was the corner from Cuyahoga County.
Speaker 1: She brought documents that we had subpoenaed, and we first
Speaker 1: learned that In two thousand, the state did another test,
Speaker 1: got results, didn't share those results with us, And in
Speaker 1: two thousand and twelve we went back to state court
Speaker 1: for the fourth time and had a hearing on that
Speaker 1: evidence that was tested in two thousands. So two thousand fourteen,
Speaker 1: the defense expert Dr. Rick stab was able to prove
Speaker 1: conclusively that Tony could be excluded as a contributor to
Speaker 1: the vaginal slide and that two unknown male contributors were
Speaker 1: in fact present. So Tony was acquitted of the vaginal
Speaker 1: rape charge, acquitted and the second count of rape was
Speaker 1: dismissed on the grounds that it lacked becificity. And it
Speaker 1: was one year later, March six went your appeals court
Speaker 1: three to zero. They all three agreed, Yes, the DNA prooved.
Speaker 1: I was innocent and I got out that day. Okay,
Speaker 1: go to that moment if you can. And oh man,
Speaker 1: I always been waiting for this moment to happen. In
Speaker 1: my daughter Elena, the one that I just goodbye when
Speaker 1: I went and turned myself in. She came out with
Speaker 1: two of my grandchildren, my granddaughter Rain and grandson navan
Speaker 1: oh Man. First time I got to see them in person.
Speaker 1: You know, I called, well, my wife, now, Beth. I
Speaker 1: got a hold of her. I let her know I'm
Speaker 1: I'm home. So tell us about your wife, Beth? How
Speaker 1: did that all develop? I've known her like twenties of years,
Speaker 1: you know, she she was isn't evenly in prison and everything.
Speaker 1: I mean, I've been in love with that woman for
Speaker 1: many years. I mean I I knew that I was
Speaker 1: going to get out someday, and we had, you know,
Speaker 1: decided when I got out, then we'll see if we're
Speaker 1: gonna have a relationship, you know, and if we can
Speaker 1: have one, because you know, I'm like a lab experiment
Speaker 1: all the years, locked up, so her and the kids
Speaker 1: would come over several times a week, you know. When
Speaker 1: I first got home, finally I thought, I don't know
Speaker 1: what we're waiting for. I said that, you know, I
Speaker 1: love you, and she's like, you know I love you too?
Speaker 1: What I said, So you know we're old. What are
Speaker 1: we waiting for. Let's get married. Man. I don't spell
Speaker 1: my life locked up. I want to live and she's like, okay,
Speaker 1: but I got two granddaughters that you're gonna have to raise,
Speaker 1: and I'm like, maybe I got no problem. I didn't
Speaker 1: get a chance to raise my kids. Now I'm getting
Speaker 1: a second chance at life. I'm sure everyone's wondering. Okay,
Speaker 1: so why in God's name is he calling us from
Speaker 1: death row? Well, the state appealed to the Ohio Supreme Court.
Speaker 1: What the Ohio Supreme Court determined was that under the
Speaker 1: Ohio DNA Testing Statute that in order for a death
Speaker 1: row prisoner to get an evidentially hearing on the issue
Speaker 1: of d n A, the prisoner has to make the
Speaker 1: request for the testing. What happened here is the state
Speaker 1: did the testing in two thousand, kept it from us
Speaker 1: until two thousand and nine, and in two thousand and
Speaker 1: twelve through two thousand and fourteen, we present evidence that
Speaker 1: Tony is excluded as the person who committed the rape
Speaker 1: in a single assailant homicide. And what the Ohio Supreme
Speaker 1: Court did was it put form over substance. Because Tony
Speaker 1: did not request the DNA testing, he was not entitled
Speaker 1: to that hearing. So in the courts view, that hearing
Speaker 1: where he was a sonarrated of the rate charges never existed.
Speaker 1: So you from your death row cell were required to
Speaker 1: have requested the d n A that the state had
Speaker 1: insisted didn't exist. That blew my mind. That next Friday,
Speaker 1: my wife she asked me to bake mac and cheese.
Speaker 1: My other stepdaughter, she just moved into a place she
Speaker 1: had no Washington dryer. I went. I got to Washington dryer.
Speaker 1: Now I gotta go pick the grand babies that were
Speaker 1: raising Chloe and there Jane. I gotta go pick them
Speaker 1: up from school. I gotta take the dog to the vet.
Speaker 1: I gotta washer dryer. In the back of the pickup truck.
Speaker 1: I'm doing normal stuff that people do out there, you know,
Speaker 1: in life. You know, I'm loving every minute of it.
Speaker 1: And I get out of the truck and I'm heading
Speaker 1: heading to the porch, and here come these six cars.
Speaker 1: Man U S Marshals jump out, Highway patrol and Akron police.
Speaker 1: I went from my front yard to death row just
Speaker 1: like that. Man, No facts change, no evidence change, nothing changed.
Speaker 1: You get off jet throw and go home for nothing.
Speaker 1: It's like I'm in the twilight zone, man, you know.
Speaker 1: I mean, I wake up every day and it's like, Wow,
Speaker 1: I can't I just can't hardly understand what I'm doing here. Man, Tony,
Speaker 1: I can only say that this will not stand. We
Speaker 1: will not allow this to stand. We're going to just
Speaker 1: grow this movement and we're going to find a way
Speaker 1: to help your team get you justice. Yeah. Law professor
Speaker 1: at Georgetown, Mark Howard, and and three of the students
Speaker 1: they got interested in my case. They made a documentary
Speaker 1: and then they set up a website. I guess they
Speaker 1: have a petition, which is Justice for a Panovitch dot com.
Speaker 1: Please go visit the website when there's a petition on
Speaker 1: the page, and there will be a link to it
Speaker 1: in our episode bio, So please go there as well
Speaker 1: and shout out to the students for their great work.
Speaker 1: So it's now time for us to turn to the
Speaker 1: closing of the show. This is the part of the
Speaker 1: show where first of all, thank our distinguished guests, Dale Base,
Speaker 1: Federal Public Defender Advocate extraordinaire Tony, thank you for being
Speaker 1: here with us hanging Thereyboddy. We're going to bring you
Speaker 1: home and now I'm gonna turn my microphone off, kick back,
Speaker 1: close my eyes and listen. Dale, you first, and then Tony.
Speaker 1: Thank you. Jason. It's been almost thirty six years since
Speaker 1: Tony was sentenced to death. Since then, as his case
Speaker 1: moved through the levels of appellate review, evidence that the
Speaker 1: state withheld a trial began to seep out, the secret
Speaker 1: or status of the victim, other suspects, lies by police
Speaker 1: and prosecutors uncovered. The problem was and still is that
Speaker 1: this case, like all death penalty cases, moved through the system,
Speaker 1: the courts put form over substance in decline to look
Speaker 1: at the merits of the claim. What we have here
Speaker 1: is a wrongful conviction. How do we know that? It's
Speaker 1: because Tony is excluded from a rape in a case
Speaker 1: where the state's theory is that there was a single assailant.
Speaker 1: This doesn't make sense to me as a lawyer and
Speaker 1: may not make sense, but people need to understand that
Speaker 1: the system is constructed this way. The system needs to
Speaker 1: be fixed and we need to right this wrong in
Speaker 1: Tony's case. The team that has worked on this case
Speaker 1: over the years, from my office, from Mark Devan's office,
Speaker 1: from the law firm of Crowland Mooring, We're not going
Speaker 1: to give up Tony over to you. First of all, Jason,
Speaker 1: I want to thank you for having me on your
Speaker 1: podcast and for giving me this opportunity to tell my story.
Speaker 1: From the very beginning, I said I was innocent. I
Speaker 1: didn't commit this crime. I had no problem cooperating with
Speaker 1: the cops, given them my hair, blood saliva, answering all
Speaker 1: their questions. I'm innocent. Come on here I am. Thirty
Speaker 1: six years later after being sent home, being found innocent
Speaker 1: and sent home, I'm back on death row on a technicality,
Speaker 1: amazing as it is, and I'm still innocent. I didn't
Speaker 1: do this. All I want is my day in court.
Speaker 1: That's it. Just what are they afraid of? Let let
Speaker 1: let's let a jury see all the evidence. You know,
Speaker 1: and I'm confident I have no doubt in my mind
Speaker 1: that they'll find you not guilty. There's no doubt because
Speaker 1: I didn't commit this crime, and I think the evidence
Speaker 1: of faction. I don't know what I can say or
Speaker 1: do to convince people of my innocence. You know, I've
Speaker 1: been saying it for years. Just look at the evidence,
Speaker 1: look at the fact. And uh again, I say, I
Speaker 1: appreciate having this opportunity, and Jason, you're doing a good
Speaker 1: job here for society, and I appreciate everything that you're doing.
Speaker 1: And I really appreciate what you're doing for me. Thank
Speaker 1: you for listening to Wrongful Conviction with Jason Flam. Please
Speaker 1: support your local innocence projects and go to the link
Speaker 1: in our bio to see how you can help. I'd
Speaker 1: like to thank our production team Connor Hall, Jeff Clyburne
Speaker 1: and Kevin Warness. The music on the show, as always,
Speaker 1: is by three time OSCAR nominated composer Jay Ralph. Be
Speaker 1: sure to follow us on Instagram at Wrongful Conviction and
Speaker 1: on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason
Speaker 1: Flam is a production of Lava for Good Podcasts in
Speaker 1: association with Signal Company Number one