on murder case
reveals justice's doubts
Friday, December 10, 1999
By SANDY THEIS PLAIN DEALER COLUMBUS BUREAU CHIEF
after he wrote the
opinion upholding Anthony Apanovitch's death sentence for the murder of
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."
- Of the 160
or so death penalty cases the Ohio Supreme Court heard during his
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
served is a fair pursuit for retired
jurist with second thoughts.
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