In 2008, the state disclosed DNA evidence that it secretly tested and hid from Tony for 8 years. Once the DNA evidence surfaced, there was a hearing before a judge at which the DNA testing was authenticated and admitted into evidence and both parties called DNA experts to testify about the test results.
In early 2015, the court ruled that the "uncontroverted" and "unequivocal" evidence, including the newly-discovered DNA evidence, indisputably proved that the semen that came from the victim's vagina did not come from Tony. And, because the state had accused and convicted Tony of being the sole perpetrator of the crime, the DNA evidence proved not only that Tony did not rape Ms. Flynn, but also that Tony did not murder her.
The Ohio Supreme Court sent Tony back to death row and prison in 2018 - after Tony had been out on bond and was living with his wife, daughter and grandchildren for two years.
The reason? The court relied on a hyper-technical reason regarding the way that the evidence proving Tony's innocence was produced.
According to the court, the DNA statute in Ohio applies only where the prisoner makes the request to test DNA. Tony didn’t ask for the testing to be done – indeed he never had the opportunity to make that request – because the state did the testing itself in secret without telling Tony or his lawyers, and then hid the results even though the DNA testing proved that Tony was not the perpetrator. So, according to the Court, because Tony didn’t ask for the testing, the results of that testing were irrelevant even though they prove him innocent.
In the State of Ohio, who asked for the testing is more important than what the testing actually reveals! So, even though the DNA testing proved that Tony is innocent of the rape, he is now back on death row and facing execution simply because he didn’t request the testing that exonerated him. In November 2018, after two years of freedom, living with his wife and caring for his adopted grandchildren, Tony was taken into custody and sent back to death row.
From the outset, the case was infected by incompetence, police misconduct, lying by prosecutors, hiding and misrepresenting evidence, and a troubling and inexplicable refusal by the police and prosecutors to consider and pursue leads of other perpetrators. Tony voluntarily provided the police with whatever they asked for, but there was not a single piece of physical evidence that tied Tony to the crime: no blood, no saliva, no hair, no sweat, no fingerprints. Instead, Tony was convicted of raping and murdering Ms. Flynn based on a lineup of purely circumstantial evidence and innuendo.
Significantly, one of the justices who reviewed Tony’s conviction in 1987 found the circumstantial evidence on which Tony was convicted “far from overwhelming” and was troubled by the “record with as many holes as this one.”