(This post is a repost of an article by Prof. Sarat found here)
I’ve been following Amherst Law Prof Austin Sarat’s posts on the Justia Verdict website for a while, and he always makes me stop and think with the topics he covers. While he often writes about problems with the death penalty, here’s a post that affects all prisoners seeking habeas corpus relief, not just those on death row. (Dale)
Anthony Apanovitch is an innocent man, and the state of Ohio knows it. But it plans to execute him anyway.
Apanovitch is on death row even though DNA evidence conclusively proves that he did not commit the crime for which he has been sentenced to die. He is there because of a shocking combination of prosecutorial misconduct and the desire of some supporters of capital punishment to achieve finality in death cases even if it comes at the expense of justice.
This almost unimaginable situation defies any semblance of justice and simple fairness. Executing the innocent is an American nightmare. It is a nightmare that Apanovitch is living.
The state of Ohio needs to end that nightmare and make sure that it doesn’t commit a state-sanctioned murder.
Capital sentencing has proven to be unreliable not just in Ohio but wherever the death penalty is used in this country.
Over the last fifty years, 190 people have been exonerated and released from death row. Twenty-one of those exonerations resulted from DNA testing. Experts estimate that 4.1% of the 2,436 inmates awaiting execution as of January 1, 2022, are, like Apanovitch, actually innocent.
Add to this list another 20 people executed since 1976 who were, in all probability, also innocent, and the picture of America’s death penalty system looks pretty grim.
Apanovitch’s situation is unique because he seems to be the only person currently awaiting execution where DNA evidence shows that he is innocent. Yet it highlights some of the pathologies that are pervasive in America’s death penalty system.
Let’s look at how those pathologies played out in Apanovitch’s case.
In January 1985, he was convicted of raping and murdering Mary Anne Flynn, a woman whose house he had been painting. The police quickly targeted him and ignored other possible suspects. Such targeting is common in capital cases. It exemplifies what the newspaper columnist Radley Balko calls “tunnel vision.” [I’ve also written on this topic for Criminal Legal News Magazine]
As Balko explains, tunnel vision
is a form of cognitive bias that is common in wrongful convictions and especially in high-profile cases. Tunnel vision… “leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular conclusion and then filter all evidence in a case through the lens provided by that conclusion.” Instead of following leads until the evidence points to a perpetrator…investigators start with a suspect, then look for evidence to confirm their suspicions. Exonerating evidence and leads pointing to alternate suspects tend to be ignored.
From the start, Apanovitch has maintained his innocence and cooperated in the investigation. After his arrest, he voluntarily provided police hair, saliva, and blood samples. These are hardly things that a guilty person would do. But none of that helped Apanovitch.
Apanovitch was tried and convicted based almost exclusively on circumstantial evidence, and right from the start, the state’s conduct in his case was egregiously wrong. It was more typical of a vendetta than a dispassionate search for justice.
Among other things, the prosecution concealed potentially exculpatory evidence. It tried to link Apanovitch to the crime by claiming that he was the source of fluids found inside Ms. Flynn’s vagina. Yet prosecutors knew that the fluids could have been entirely those of the victim.
The state’s misconduct didn’t end there. The prosecution presented a police detective’s testimony about an allegedly incriminating statement made by Apanovitch that it knew to be false when it was offered.
Prosecutors who do not reveal exculpatory information or correct false witness testimony are common in death cases, though that misconduct may, as it did in Apanovitch’s case, take years to uncover.
Not surprisingly, it plays a substantial role in false conviction cases.
In 2021, The Death Penalty Information Center (DPIC) reported that such misconduct was involved in 69% of all death row exonerations. It found that official misconduct played an important role in securing an erroneous conviction in 10 of the 11 Ohio exonerations that it studied.
The likelihood of such misconduct is especially great in Cuyahoga County, the jurisdiction in which Apanovitch was prosecuted and convicted. As the DPIC noted, “Cuyahoga County prosecutors have a long history of misconduct in capital cases and of stonewalling efforts to release death-row prisoners who have been wrongfully convicted.”
But the most startling injustice in Apanovitch’s case happened years after his trial and conviction. In 2000 the county medical examiner’s office discovered slides with biological material that had been taken from the victim during her autopsy.
When the medical examiner tested it for DNA, he did, he found definitive proof that Apanovitch could not have been the source of the DNA taken from in Ms. Flynn’s vagina. But the state again hid the evidence, even though Apanovitch was pursuing post-conviction relief at the time.
In 2008, the exculpatory DNA evidence finally came to light. Apanovitch then sought a new trial. After a hearing on that request, a trial judge acquitted him on the rape charge and ordered a new trial on the murder charge.
As a result, Apanovitch was released from death row and sent home after almost 32 years on death row.
While he was free, the state appealed the trial judge’s decision. In 2018 the Ohio Supreme Court held that the trial court “lacked subject matter jurisdiction” and sent the case back to that court which, in light of that decision, this time refused Apanovitch’s request for a new trial.
Even by the standards of a legal system awash in Kafkaesque technicalities which sometimes stand in the way of justice, the Ohio Supreme Court decision sets a new mark for heartlessness.
Although no one doubted the accuracy of the DNA results, the supreme court decided that Apanovitch could not use them to prove his innocence. It cited a state law that said DNA could only be used in cases where the defendant requested the testing. The fact that Apanovitch could not have requested testing of evidence that the state had hidden from him didn’t matter.
As the court itself acknowledged, in a monstrous understatement, its decision could be characterized as “unduly formalistic or unfair.”
Nonetheless it made that decision, as Justice Terrance O’Donnell put it, to “ensure the finality of this nearly 34-year-old judgment.” It was time to get on with the business of executing Anthony Apanovitch.
According to an astonishing United States Supreme Court precedent (Herrea v Collins (1993)), executing an innocent person does not violate the Constitution of the United States.
With no judicial remedies available to him, Apanovitch has applied for executive clemency. His application is pending with the Parole Board. How long should it take to clear someone who has conclusively been shown to be innocent? The facts of his case prove that he should be pardoned.
Horrified by what has happened to Apanovitch, several Ohio legislators have introduced a bill to close the DNA loophole.
While its consideration process continues, the Ohio Parole Board must not stand by and allow the state to kill an innocent person. It should recommend to Ohio’s governor that Anthony Apanovitch be pardoned and set free, ending once and for all his nightmare and ours.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.