Located in Hospital,
DNA Clears Buffalo Man
Convicted in ’80s
Doug Benz for The New York Times
Anthony Capozzi's family watched a television report
on his case Wednesday in Buffalo.
By DAVID STABA,
NYTimes on the Web, March 29, 2007
BUFFALO, Mar. 28 -- The
evidence, genetic material from two rapes stored on microscopic slides, had
languished in a hospital drawer for more than 20 years, as the man convicted of
the crimes languished behind bars. Numerous times, including four in the
last two months, the authorities issued subpoenas for the material, only to be
told that it was not in the hospital.
But on Wednesday, the district attorney announced that the slides had finally
been found last week, and that DNA tests on them matched Altemio Sanchez, not
the man convicted of the crimes, Anthony Capozzi.
Mr. Capozzi, 50, who has been incarcerated since his 1985 arrest, could be freed
within a week, the authorities said.
“We’ve been carrying this load around for more than 20 years,” Mr. Capozzi’s
mother, Mary, said in the family’s home on Buffalo’s West Side. “Now the
load is lifted off of us.”
His father, Albert, added, “We have grief for what has happened to us, but we
have joy, because he’s been exonerated.”
It was the latest development resulting from the January arrest of Mr. Sanchez
in connection with a series of rapes and murders dating at least to 1981.
Mr. Sanchez has pleaded not guilty to the murder charges; the statute of
limitations has elapsed on the rape cases.
Several criminal defense lawyers have since raised questions about their own
clients’ convictions, and the police said they were reviewing scores of cases,
including unsolved rapes and those where there had been convictions, that fit
the same pattern.
Several of the rapes Mr. Sanchez is believed responsible for occurred in
Delaware Park, Buffalo’s largest, as did the two for which Mr. Capozzi was
Frank J. Clark, the Erie County district attorney, said officials at Erie County
Medical Center answered repeated subpoenas by saying they did not have the
evidence. Mr. Capozzi’s lawyer, Thomas D’Agostino, said the hospital had
said as early as 1992 that it did not have the evidence.
But Mr. Clark said that within a day after the most recent request, a
pathologist at the hospital found microscope slides last week containing genetic
material from hundreds of rapes between 1973 and 2002, including those
attributed to Mr. Capozzi. Hospital administrators did not respond to
three telephone messages seeking comment.
“It’s more than frustrating, it’s maddening,” Mr. Clark said of learning the
evidence had been at the hospital all along. “I mean, come on — these are
important issues we deal with. When you make a request like this, with the
impact that it has, and somebody comes back to you and says, ‘Gee, we’re sorry,
this evidence doesn’t exist,’ you just make the human assumption that they
consider it as important as you do and have done what they should do. I
have no reason not to take them at their word.”
Nevertheless, Mr. Clark said the authorities never quite believed the hospital,
hence the repeated subpoenas.
“There were enough whisperings out there for us to believe that maybe their
assertions that the evidence wasn’t there weren’t exactly true,” Mr. Clark said.
“I don’t know why they weren’t on top of it. I don’t know why they didn’t
feel the same urgency that we all felt. I don’t know why they didn’t feel
this was important enough to get to the bottom of.”
Mr. Capozzi, who has schizophrenia, was originally suspected in six attacks that
took place in or near Delaware Park in 1983 and 1984. He was tried in
three rapes and convicted of two.
His family consistently maintained that he was innocent. They argued that
his mental illness left him incapable of planning the attacks, in which the
victims were threatened with a gun, taken to a secluded area and ordered to
remain on the ground for 10 or 20 minutes after the rape.
At the time of his trial, Mr. Capozzi had a prominent three-inch vertical scar
above his left eye. The victims who testified did not mention the scar and
estimated the weight of their attacker at 150 pounds, at least 50 pounds less
than what Mr. Capozzi weighed at the time, Mr. D’Agostino said, adding that
there was no physical evidence linking Mr. Capozzi to the rapes.
“Eyewitness testimony is devastating, but you’ve got to be very skeptical,” Mr.
D’Agostino said. “In Anthony’s case, the problem was that you had three
victims who came in and each one said it was him. You get to a point where
jurors say, ‘Maybe the first one was wrong, but all three of them can’t be wrong
— they’re all saying it was the same guy.’ ”
Mr. Capozzi was sentenced in 1987 to 11 2/3 to 35 years in prison. The
State Parole Board has rejected his application for release several times, in
part because he did not admit to the crimes, his lawyer said.
“Anthony has never, ever wavered,” Mr. D’Agostino said. “He has known what
it would mean to say, ‘I did it.’ If he said that, he would have gotten
out. And he wouldn’t do it.”
Housed at Attica Correctional Facility at the time of Mr. Sanchez’s arrest, Mr.
Capozzi has been returned to the state prison hospital in Marcy, N.Y. His
father gave him the news over the telephone.
“We told him he’s coming home,” said his oldest sister, Sharon Miller. “He
said, ‘Really? Who is going to pick me up and take me there?’ I
don’t think he’s really digested it yet, but I think he has some idea.”
While detectives working on the case expressed doubts about Mr. Capozzi’s guilt
after Mr. Sanchez’s arrest, Mr. Clark said there was no legal reason to reverse
the conviction until last week’s discovery.
“I’ve always said, don’t give me opinion,” the district attorney said. “I
don’t care what you think, nor does the law care what you think. We deal
in facts. And now we have a fact, probably the strongest single fact that
modern technology provides us with and something that I feel very comfortable
Mr. Clark said authorities would analyze the newly discovered evidence to see if
other attacks can be tied to Mr. Sanchez.
“It’s a bittersweet feeling,” Mr. Clark said. “Sweet in that an innocent
man has been vindicated and bitter in the fact that it took us 20 years to do
Mrs. Miller said her brother would most likely move into an assisted-living
facility when he was released. While the date for that remained uncertain
Wednesday, his family — including several nieces born since his arrest who call
him “Uncle Toto” — was planning his welcome-home dinner.
“He’s not a drinker, but I think he’s going to want to have a beer,” his father