EXHIBIT 22

Honorable Herbert R. Brown

Former Justice, Supreme Court of Ohio
1803 Riverside Dr.
Columbus, OH 43212

March 11, 2022

Members of the Ohio Parole Board:

I am a former Justice of the Supreme Court of Ohio and served from 1987 to 1993.
One of the cases which came before me was State of Ohio v. Anthony Apanovitch (33 Ohio
St. 3d 19 (1987)). It was a death-penalty case.

In the Apanovitch case, I authored a concurring and dissenting opinion. Justices

A.W. Sweeney and Ralph Locher signed on to my opinion. I disagreed with the affirmance
of the death penalty by the majority because, due to significant and troubling evidentiary
issues, I believed there was "a substantial possibility" that Mr. Apanovitch "may not be
guilty." My opinion describes the troubling evidence on which I reached my conclusions
and speaks for itself.

Mr. Apanovitch had been convicted of rape and murder under the theory that he was
the sole perpetrator of the crime. Subsequently, sometime in 2014 or 2015, I was informed
that DNA evidence excluded Mr. Apanovitch as the perpetrator of the rape. Yet he remains
on death row. The exculpatory evidence excluding Mr. Apanovitch as the perpetrator of
the rape greatly heighten the concerns I expressed in my 1987 opinion as to whether Mr.
Apanovitch is guilty of the crimes for which he was convicted.

In February 2022, I was contacted by one of the attorneys representing Mr.

Apanovitch and we met. Prior to the meeting, I was provided with copies of the 1987 Ohio
Supreme Court Opinion in which I expressed my concerns; the opinion by Judge
McClelland, the Common Pleas court judge who found (based on DNA evidence) that Mr.
Apanovitch was excluded from the vaginal rape of the victim, and who vacated Mr.
Apanovitch's convictions and death sentences on that basis; and the 2018 Ohio Supreme
Court opinion that found that the Common Pleas court judge did not have jurisdiction to
hear the case, and which reinstated the convictions and death sentence and returned Mr.
Apanovitch to death row.

The Ohio Supreme Court held that Ohio's DNA statute applies only in
circumstances in which the inmate requests the DNA that ultimately exonerated him. I
understand that Mr. Apanovitch did not request the DNA. But the State had already tested
the DNA. The DNA testing that was conducted by the Cuyahoga County Medical
Examiner in 2000 excludes Mr. Apanovitch from the rape. Without the rape in a single-

Exhibit 22 - 001
assailant case - which was the state's theory at trial - Mr. Apanovitch could not have
committed the murder.

I am told that the DNA results were hidden from Mr. Apanovitch. Regardless of
who requested DNA testing, the significant fact is that those results exonerated Mr.
Apanovitch from the rape. If that is the case, Mr. Apanovitch should not be on death row;
nor should he (based upon the theory of prosecution) be in prison. It is a gross injustice
that a man should be on death row or in prison because of a technicality.

In addition, I have learned other disconcerting information bearing on issues that

led me to question Mr. Apanovitch's guilt in 1987. It is my understanding that the
prosecutors and police may have withheld information which would have been helpful to
defense counsel at trial ( information about the secreter status of the victim; oral statements
by Mr. Apanovitch that were recorded in writing by the police that contradicted testimony
at trial by a detective; and the location of an unidentified hair - not belonging to the victim
or Mr. Apanovitch ~ that was found on the victim's body) This hair was never tested by
the State to challenge its contention that the hair came from crime scene personnel.

Finally, I have been shown a letter that my former colleague, Justice Craig Wright,
sent to this Board in 1996. Justice Wright, who was in the majority of the 1987 Apanovitch
case wrote "[a]fter long reflection I must express my agreement with Justice [] Brown's
partial dissent. ... " Significantly, I believe Justice Wright's letter was submitted before
the recent DNA evidence and other exculpatory evidence came to light.

The 2018 Ohio Supreme Court decision sent a man back to death row, and
effectively narrowed any legal options in the courts for Mr. Apanovitch. This Board has
the authority, even the duty, to right a wrong and correct an injustice that has now lasted
almost 3 8 years. Although the death penalty remains a punishment accepted by courts,
legislature, and the public, nobody should countenance the execution of an innocent man.
Certainly not on the technical point of whether it was the State or Mr. Apanovitch who
requested the exculpatory DNA evidence. Considering all of the above, I believe this
Board should release Mr. Apanovitch from prison.

Sincerely,

~
Herbert R. Brown
Former Justice, Supreme Court of Ohio

Exhibit 22 - 002