Located in Hospital, DNA Clears Buffalo Man

Convicted in ’80s Rapes

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 imprisoned.

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 relying on.”

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 it.”

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 said.

 

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