Tony Apanovitch has been on death row 38 of the last 40 years. Two of those he spent as a free man when a judge vacated his conviction based on revelatory new DNA evidence from the 1984 rape and murder case of Mary Ann Flynn, only for Tony to be hauled back to death row on a legal technicality.
Now, Tony’s hopes of freedom hang on legislation passing a critical milestone in the Ohio House of Representatives this summer, or new developments in Federal court that could lead to a new trial.
Tony’s story throws Ohio’s courts — and justice itself — into question as the ins-and-outs and technicalities have him fighting for a new trial from death row yet again.
Highlights:
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Tony Apanovitch, convicted in the 1984 rape and murder of Mary Ann Flynn, was freed after DNA evidence controverted the state’s case that Flynn’s rape and murder was a single event. Apanovitch’s conviction was overturned in 2016.
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Despite reintegrating into society, marrying, and living a quiet life, Apanovitch was arrested again due to procedural issues with the DNA retesting process.
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Ohio's legislative and judicial processes are under scrutiny as advocates push for Apanovitch to receive a new trial based on new evidence.
Apanovitch, now nearly 70, continues to fight for his freedom from death row, with his case mired in legal complexities and procedural setbacks.
New Developments:
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A House Bill (HB 221) aimed at expanding post-conviction relief for individuals exonerated by DNA evidence had been stalled in committee for nearly a year, until last week when it was stripped of provisions that would apply to Tony. Legislators say the bill could still pass critical milestones to get out of committee this summer and could eventually affect Tony’s case with an amendment in the Senate.
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Legal challenges persist, with the Ohio Prosecuting Attorney’s Association and its proponents debating the bill's potential impact on the reliability of DNA testing in criminal cases.
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The Federal District Court is set to hear the history of Tony’s case this summer. His petition for relief there now enters a critical stage.
What’s at Stake:
The case underscores Ohioans’ concerns about justice and due process in Ohio, particularly in cases involving capital punishment and DNA evidence. Cuyahoga County, where Tony was originally convicted, remains under scrutiny, as it leads the state in overturned convictions. Tony’s insistence on his innocence, and years fighting through appeals and petitions, illuminate a legal process that is punishment in itself
Read The Full Account:
Languishing on death row for decades and waiting for a miracle, Tony Apanovitch was freed in 2016 when a DNA sample was tested in the high profile 1984 rape and murder of Mary Ann Flynn in Cuyahoga County. The DNA evidence blew the state’s case open, and Tony was allowed to go free — only to be hauled back to death row two-and-a-half years later on a technicality.
Married, reintegrating into life on the outside, reading to his new wife’s grandchildren, Tony was arrested by U.S. Marshals at his house after a technicality in the DNA retesting process drew the scrutiny of prosecutors and the courts again. Apanovitch found himself on death row once more.
The twists and turns of the case — and the technicalities — cast a long shadow on the judicial process in America, and Ohio politics. Cuyahoga County leads the state in overturned convictions, which became a flashpoint in Prosecutor Michael O’Malley’s primary election in March. Governor Mike DeWine hasn’t touched the case, advocates say, because Apanovitch doesn’t have an execution date.
And now, the Ohio House is reviewing a bill that would expand post-conviction relief for those exonerated by DNA evidence. The bill sat in a House committee for nearly a year until last week, when the committee removed provisions that it would retroactively apply to Tony.
Apanovitch is on death row again. Advocates are asking, if Apanovitch’s case has been so controverted by DNA evidence, and he remains on death row, who has the authority to intervene?
The case:
Tony Apanovitch, now nearly 70 years old, was convicted in the 1984 murder of Mary Ann Flynn. Apanovitch had painted her house. He had prior offenses and wasn’t known for clean living. Flynn was raped and murdered in her home and her body discovered by a her brother, Martin, and a coworker. 
The state’s case, in a county that is among the nation’s leaders in overturned capital convictions, hinged on two critical claims: first, a “single event” hypothesis. In other words, the rape and murder occurred together, perpetrated by a single individual. Second, an alleged and highly contested statement by Tony to an investigator showed guilt, the state argued.
DNA testing was first used as evidence in a criminal case in 1986. Meanwhile, the original overturning of Tony’s conviction that saw him freed hinged on DNA evidence that was tested nearly twenty years later, and which advocates say, blew open the single event hypothesis. Likewise, evidence emerged controverting the argument that Tony’s statements to investigators amounted to anything resembling an admission of guilt.
The state argued that the evidence showed the same individual who raped Flynn, a nurse midwife, was the same individual who killed her.
Then, in 2000, the state conducted DNA testing on slides from the medical examiner’s office.
“They did not tell us they found the slides and were testing them,” says Dale Baich, who worked in the Office of the Federal Public Defender at the time. “They held onto the results for eight years,” Baich says.
“It was our position that Tony was excluded from the rape.”
The state’s claim in Tony’s capital trial was that a single perpetrator had raped Flynn and robbed her of her life. “If he’s excluded from the rape, he’s excluded from the murder,” Baich told Ohio.news. “It was our position that Tony was excluded from the rape.”
It took six years for Tony’s advocates to get a hearing in state court based on the tested DNA samples. A judge concluded that Tony was excluded from the rape and vacated Tony’s conviction and death sentence and set him free, but the state still had the opportunity to retry Tony on the murder charge.
On the outside, Tony married a woman he had known over the course of the previous 14 years and stayed out of trouble. His website says he enjoyed fishing and fixing neighborhood kids’ bicycles.
But the state appealed the judge’s decision and eventually the Ohio Supreme Court vacated the judge’s order, determining that under the Ohio post conviction DNA testing statutes, it is the defendant who must request DNA testing. That determination voided the judge’s findings based on the defense’s legwork done on the state’s own DNA testing from 2000. U.S. Marshals returned Tony to death row once again.
“Our position was and is that the state requested the testing, did the testing, didn’t tell us, and the results were the results,” said Baich, who still advocates for Tony in retirement, along with other law firms and legal advocates, says.
The Ohio Supreme Court raised the question of the testing request on its own, though the court does have the authority to determine whether the judge had proper jurisdiction over the matter. The Supreme Court also holds authority to vacate Tony’s conviction based on the technicality of the state requesting the test, not Apanovitch.
Baich: “As the Ohio Supreme Court said here, this may seem like a harsh result, but the law is the law.”
Back to death row, Tony went.
The Problem of ‘If/When’
Another significant problem with the state’s original case, Tony’s advocates say, is the “if/when” dilemma. When Apanovitch was originally questioned by detectives, he requested to call his mother, “when I’m indicted,” so the state argued.
Prosecutors argued in Apanovitch’s original trial his statement showed an understanding of guilt. Baich said advocates got hold of the records years later, when Apanovitch was on death row, and the records showed the detective wrote, “If I’m indicted.”
“Years later we find out there was this statement,” Baich told Ohio.news.
Tony’s application for clemency to the Ohio Parole Board claims that in light of the new findings, only circumstantial evidence remains to support the state’s case. “There is no physical evidence whatsoever linking Tony to the crimes: no blood, no saliva, no hair, no sweat, no semen, no fingerprints, and no footprints,” the document says.
Apanovitch’s clemency application also claims the state knowingly premised its arguments at trial on the notion that Tony was linked via physical evidence that in actuality could also have come from Flynn, which it withheld from discovery at trial.
The only other physical evidence in the crime was a human hair found under Flynn’s bound hands, which, along with a semen sample, did not match Apanovitch, the documents say.
“All this boils down to is the man is due his day in court.”
The bill:
Meanwhile, Ohio State Reps. Jean Schmidt (R-62) and Terrence Upchurch (D-20) introduced bipartisan legislation that could give Apanovitch, and others who could be freed based on DNA evidence, wider opportunity to appeal.
Upchuch penned an op-ed on Cleveland.com noting that six of seven of Ohio’s convicts later exonerated were from Cuyahoga County. Cuyahoga County’s overturned convictions became a campaign issue in Matthew Ahn’s unsuccessful March primary challenge to incumbent Michael O’Malley.
Ohio House Bill 221 specifies “actual innocence” such that no “reasonable person” would determine guilt, had the evidence been presented at trial, be required for appeal. The bill also closes the legal loophole of the state requesting testing rather than the accused.
Nevertheless, HB 221 languished in the criminal justice committee from June of last year until last week when the committee removed conditions that would retroactively apply to Tony. It remains unclear whether it will pass in the House, and if in the Senate the bill could again include the provisions that would pave the way for Tony to get another shot at presenting new evidence.
Meanwhile, there is continued controversy on whether the bill ensures adequate testing standards for DNA evidence on the part of testing entities.
Louis Tobin, Executive Director of the Ohio Prosecuting Attorneys Association told Ohio.news in a written statement, “House Bill 221 removes DNA testing safeguards that are in current law to ensure the reliability of the test results. In doing so it promotes the use of unreliable or questionable DNA results to challenge convictions.“
“It does this,” Tobin went on, “because Apanovitch cannot satisfy the requirements of these statutes with their safeguards. The removal of retroactivity doesn’t resolve this fundamental problem with the bill and it will not stop Apanovitch from seeking relief for [the] fifth time.”
Baich said the bill contained everything needed to ensure adequate testing standards. “It seems to me that the prosecutors want to slow-walk the process so that the bill dies in committee.”
Legislators acknowledge the bill’s challenges. “There’s still some more work we have to do on the bill,” Representative Josh Williams (R, Toledo) told Ohio.news. “There’s concern about the testing standards requirement.”
“I’m absolutely aware of Tony Apnovitch’s case,” Williams said. “I think it’s a true miscarriage of justice in Ohio. [The legislature’s] first effort is to make sure this doesn’t happen to anyone else. “[Tony] is willing to sacrifice himself to say, ‘this should never happen to Ohioans.’”
“What I’ve looked at is the process."
“I’m not determining guilt or evidence,” Williams added. “What I’ve looked at is the process. There is someone who can’t benefit from the testing. I think that’s absurd. You should always be able to present new evidence in requesting a new trial.”
In any case, the bill closes the loophole that saw Tony back on death row. Williams is optimistic that it could again gain provisions that could help Tony in the Ohio Senate. “We just need to take a step in the right direction and prevent any Ohioan from having this egregious portion of the statute interpreted this way,” Williams told Ohio.news.
The bill is not without its critics. “This bill is about one person, Anthony Apanovitch, and his attempts to file a fifth motion for post-conviction relief despite the fact that DNA testing has already found that Apanovitch’s DNA was in his murder victim’s mouth,” Tobin told Ohio.news.
And that DNA report is at the heart of Apanovitch’s hopes for another day in court.
Tony’s team reviewed the DNA results provided and argued the samples could have matched with other males, but critically, that the victim’s own DNA was not in the sample from her mouth.
“Think about it,” Baich said. “Her DNA may not be present on a sample taken from her mouth.”
Tony’s team planned to depose the author of the DNA report suggesting Tony’s DNA was in Flynn’s mouth, but the state said it wouldn’t call the report’s author as a witness, meaning the report wouldn’t be submitted as evidence.
If the DNA report would support Tony’s conviction, why wouldn’t the state submit it as evidence?
“At this point, the state knew that our expert said Tony was excluded from the vaginal sample,” Baich said.
Apart from the legislature and HB221’s future, Baich says little is at stake for someone with authority to intervene. “It’s not like a prosecutor or an Attorney General needs to go out on a limb and say “Oh we think [the state] made a mistake here, or [the state is] confessing an error.”
“They could take a little step and say maybe a jury should take a look at this,” Baich told Ohio.news.
The murky path forward:
Tony has two rocky roads to getting yet another day in court.
1. A window may have finally cracked in federal court for Tony after he filed a petition seeking relief nearly two years ago. The Federal District Court sent the petition to the Sixth Circuit, which recently decided the District Court can in fact be briefed on the case. On June 6, the state agreed to a schedule for the court to hear the full history of the case, which Baich anticipates could happen by the end of the summer.
Apanovitch remains in limbo, as the court will have to decide Tony’s fate based on thorny procedural questions on whether it can even address the merits of his legal claims. In the best case for Tony, a judge could decide he deserves a new trial.
The petition for relief pending there may present the clearest and best path for Apanovitch to get a new day in court, Baich says, but the federal petition process could take years.
2. Should HB221 pass the House in the coming months, convicts seeking relief based on DNA evidence will have new tools to appeal cases, but as it stands, not Tony. In spite of opposition from the Ohio Prosecuting Attorneys Association, the Ohio Senate could of course amend the bill to include retroactivity.
Whether the House’s efforts, through HB221, or intervention from the State Attorney General Dave Yost, were to materialize, the path to an appeal and Tony’s freedom through both federal courts and the legislature have entered a new stage.
Apanovitch has spent 38 of the past 40 years on death row. Should he get another day in court, it will be the fruition of years of effort on the part of advocates, and the navigation of several murky paths to freedom. In any case, in the years since DNA samples were originally tested and Tony’s legal team found out about them, it has become clear that the process, in all its twists and turns and technicalities, is part of the punishment itself.
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