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Letter on murder case
reveals justice's doubts
Friday, December 10,
1999
By SANDY THEIS
PLAIN DEALER COLUMBUS BUREAU CHIEF
Years after he wrote the
opinion upholding Anthony Apanovitch's death sentence for the murder of
a nurse-midwife, Supreme Court Justice Craig Wright asked the state to
spare the Cleveland man's life.
In a 1996 letter that
surfaced yesterday, Wright said he had second thoughts.
He made the rare recommendation
for leniency in a letter to the Ohio Adult Parole Authority. The letter
is dated one month before the Republican justice stepped down from the
high court in March 1996.
Defense lawyers say the
letter, made public in court papers filed in the 6th Circuit U.S. Court
of Appeals, is the latest indication that Apanovitch has been telling the
truth in maintaining he was not guilty of the 1984 rape and murder of Mary
Ann Flynn.
The case, which the high
court decided in 1987 by a 4-3 vote, would have gone the other way had
Wright's doubts been reflected in the ruling.
Citing his "long reflection"
on the case, Wright told the parole board, "Any fair-minded review of the
record reflects "residual doubt,' and I would recommend that the parole
board consider . . . commuting Mr. Apanovitch's death sentence to one of
life imprisonment."
Wright, who is now a
private attorney, could not be reached for comment.
Although his letter does
not make clear why he harbors such doubt, it makes another unusual disclosure:
"I think it is of some interest that I have discussed this case with my
now colleague, Justice [Francis- Sweeney, who was the trial judge in this
case. He has indicated to me that he came close to granting a Rule 29 motion
[for acquittal- following the state's case."
Justice Sweeney, however,
called Wright's assertion "ridiculous," denied that he nearly acquitted
Apanovitch and said the two did not discuss the case.
When asked if he believed
Apanovitch is guilty, Sweeney said, "The jury said he was."
If it were a bench trial,
how would he have ruled?
"That wasn't my call,"
Sweeney replied.
Prosecutors said Apanovitch
had painted Flynn's house in Cleveland in the summer of 1984, then returned
to murder the 33-year-old nurse-midwife the following August when he entered
through a broken basement window.
Cuyahoga County prosecutors
could not be reached for comment.
In 1992, defense lawyer
Dale Baich used the public-records law to obtain new information he says
casts more doubt on Apanovitch's guilt. He asked the circuit court to send
the case back to the district court for a hearing on the new evidence.
A decision is pending on the request.
Baich said he received
the Wright letter just this week and updated his request with the 6th Circuit
Court.
One key piece of evidence,
Baich said, is a photograph that shows police discovered a hair under Flynn's
bound hands. Tests showed the hair did not belong to Flynn or Apanovitch.
During the trial, witnesses
for the state said the hair was found on her palm and argued that it probably
fell from the head of a police officer or morgue attendant.
Photographs and police
notes not supplied to the defense show the hair was found not on her palm
but on her back under her bound hands, which had been covered in plastic
bags at the crime scene to preserve evidence, Baich said.
He argues the hair could
be the killer's and said he takes comfort in knowing that a former Supreme
Court justice is now second-guessing the outcome of the case.
"I have seen a trial
judge go the clemency route," Baich said, "but never this."
COLUMBUS - Of the 160
or so death penalty cases the Ohio Supreme Court heard during his
tenure, former Justice Craig Wright said just one haunted him: The death
sentence of Anthony Apanovitch.
"It's a close case,"
Wright said yesterday. "This is the only case that I can recall where there
was some doubt."
The comments marked Wright's
first public explanation of a 1996 letter he wrote asking the state parole
board to commute the Cleveland man's death sentence to life in prison.
Defense lawyers filed
a copy of Wright's letter last week with the 6th Circuit U.S. Court of
Appeals, hoping it would help persuade the court to allow a full hearing
on evidence not available during Apanovitch's initial trial for the 1984
slaying of a Cleveland woman. The motion for an evidentiary hearing is
pending.
Wright sent the letter
one month before he resigned from the court in March 1996.
"It's just something
I thought I had to do," Wright said. "I'm not opposed to the death penalty.
I don't think it's immoral. . . . This case, it was different."
Eventually, Apanovitch's
case will be before the parole board, Wright said, "Then the governor will
see the letter."
Scott Milburn, a spokesman
for Gov. Bob Taft, said the governor was not permitted to act on clemency
requests until the parole board had completed its review and recommendation.
Taft supports the death penalty.
Apanovitch is believed
to be the only death-row inmate convicted on solely circumstantial evidence,
said defense attorney Dale Baich.
A Cuyahoga County jury
found him guilty of the rape and murder of Mary Ann Flynn, a nurse-midwife.
Prosecutors offered testimony that showed Apanovitch was familiar with
the floor plan of Flynn's house because he had painted it, and friends
testified that she feared him because of his unwanted sexual advances.
In 1987, Wright wrote
a Supreme Court opinion that upheld Apanovitch's death sentence. The vote
was 4 to 3, so the sentence could have been overturned had Wright's doubts
surfaced earlier.
He said he cannot recall
exactly what prompted his second thoughts, although it appears they are
tied to a 1992 Supreme Court ruling that granted Apanovitch access to some
new evidence.
Justices reviewed the
evidence, which included photographs of a hair police discovered under
Flynn's bound hands. Tests showed the hair did not belong to Apanovitch
or to Flynn.
During the trial, state
witnesses said the hair was found on her palm, suggesting it fell from
the head of a police officer or morgue attendant.
The new evidence, however,
showed the hair was found under her bound hands, which had been covered
in plastic at the crime scene to preserve the evidence.
"This is another thing
that disturbs me," Wright said. "Whose hair is it?"
In early 1989, defense
lawyers suggested it might belong to Ronnie Shelton, a West Side serial
rapist. They asked the state to compare Shelton's hair to the one found
on Flynn.
Prosecutors objected,
saying the hair was mounted in a glass slide and unavailable for DNA testing.
Defense lawyer Baich
said that if the evidentiary hearing is granted, he hoped the comparison
would be done.
Wright also stands by
his assertion that Justice Francis Sweeney, who presided over Apanovitch's
initial trial, once indicated to him that he nearly acquitted Apanovitch.
Sweeney has called the
assertion "ridiculous."
"Francis is a good guy,"
Wright said. "I just don't think he remembers. It was a casual conversation.
I can't remember the context, but I remember the conversation."
The question as to whether justice was
served is a fair pursuit for retired
jurist with second thoughts.
Over time, former Ohio
Supreme Court Justice Craig Wright came to change his mind about the rape
and murder conviction of a Cleveland man that he took a decisive role in
upholding when it came before the high court in 1987. Three
years after revealing in a letter to the Ohio Adult Parole Authority
that he had revised his view, Wright says he continues to harbor doubts
that justice was served when Anthony Apanovitch received the death penalty
for murdering Mary Ann Flynn.
Wright, who says he believes
in the death penalty, wrote in 1996 asking the parole board to commute
Apanovitch's death sentence to life in prison. In dramatic contrast, when
the case came before the Supreme Court in 1987, Wright wrote the decisive
opinion in a 4-3 vote that let stand Apanovitch's conviction and death
sentence.
Not surprisingly, defense
lawyers now have enlisted Wright's letter to the parole board in their
request to the 6th Circuit U.S. Court of Appeals for a full hearing on
evidence that was not available during Apanovitch's trial.
Wright's approach to
the board, made a month before he retired from the court, appears to violate
no judicial canon. On the other hand, his account of what led to his decision
to do so, if verifiable, would raise questions about the role of the trial
judge in the Apanovitch case, Common Pleas Judge Francis Sweeney.
Sweeney later joined
Wright on the top bench and still serves on that court. According to Wright,
Sweeney confided that he came close to granting a motion for acquittal
following the state's case. Wright said he does not remember the context
in which Sweeney made this observation, and Sweeney denies that he made
it at all.
Wright is gracious about
his former colleague's response. "Francis is a good guy," he told Plain
Dealer Columbus Bureau Chief Sandy Theis. "I just don't think he remembers."
It may never be possible
to reconcile the two versions, but Wright impresses with his recollection
of details in the Apanovitch case and his insistence that the case stuck
in his mind because it was built entirely on circumstantial evidence. He
said he also found himself influenced by evidence that came before the
Supreme Court in 1992 that alludes to a hair found at the crime scene that
did not belong to either Apanovitch or Flynn.
Nothing suggests that
Wright is conducting an eccentric campaign. When he retired, he was described
by a colleague with whom he once famously had a falling out as "a judge
who is fair, who is honorable and who really cares about the law."
He appears to have acted
honorably in the Apanovitch case. Whether grounds exist to review the matter
is for the federal appeals court to decide.
Ultimately, however,
a new trial for Apanovitch is not out of the question.
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