Buffalo News

Newfound evidence that exonerates Capozzi stored at ECMC all along
Testing Available Since ’90s DNA from ’83, ’84 rapesmatches Sanchez, DA says
Updated: 03/29/07 6:34 AM

Albert and Mary Capozzi
“Have you ever felt pure joy in your heart?” Albert Capozzi said Wednesday, after he and his wife, Mary, learned their son may soon be free.
An innocent man who has been in prison for almost 22 years after being wrongly convicted of two Delaware Park rapes was exonerated Wednesday by DNA evidence — evidence that had been stored in a cabinet at Erie County Medical Center for as long as he has been behind bars.

“At last, he’s been vindicated,” said Thomas C. D’Agostino, the defense attorney who represented Anthony J. Capozzi during his trial and has been fighting for his release ever since.

“He’s always said he didn’t do it,” D’Agostino said.

Erie County District Attorney Frank J. Clark made the stunning announcement during a packed news conference Wednesday morning that not only did the newly found DNA evidence prove that Capozzi was innocent — but that it matched the DNA of the alleged Bike Path Killer.

“The DNA was not of Anthony Capozzi,” Clark said of the slides submitted under subpoena by the hospital last week. “It was Altemio Sanchez.”

Experts say the technology to analyze such DNA evidence has been available since the mid-1990s.

Sanchez, arrested in January, has been indicted in three murders and has been linked through DNA to a series of rapes of women on bike paths and other secluded spots throughout the area.

Capozzi, who is currently in prison at Marcy Correctional Facility, is expected to be granted parole when he goes before the Parole Board next week, based on the new evidence and letters of support from the district attorney and police officers who reopened his case, D’Agostino said.

Capozzi already has gone before the board five times, but his refusal to admit to the rapes has led to his being denied parole.
D’Agostino also is filing a motion to have Capozzi’s conviction vacated, and Clark said he has agreed not to retry him. That will mean Capozzi will not only be free, but also rid of any suspicion. Capozzi could be let out of prison next week, or by the end of next month at the latest.

The path to Capozzi’s vindication began as detectives on the Bike Path Rapist Task Force, who helped catch Sanchez, came across Capozzi’s case as they pored over paperwork from old rape investigations.

The case caught their attention because the rapes Capozzi was accused of committing occurred in Delaware Park in 1983 and 1984.

The investigators already had conclusively linked Sanchez to two other rapes in the park: in 1981 and 1986.

Detectives Dennis A. Delano and Lissa M. Redmond continued to look into the Capozzi case, even after Sanchez’s arrest, and began raising questions about whether the wrong man had gone to prison.

Simultaneously, D’Agostino was working with Clark to try to free his client.

But time and again, the investigators, D’Agostino and Clark kept running into a wall — the shared belief that there was no physical evidence that could point to Capozzi’s innocence or guilt.

Capozzi, who resembled Sanchez at the time of the Delaware Park attacks, had been convicted based on the testimony of the rape victims, who had picked him out of police lineups.

The best anyone hoped for Capozzi was for the Parole Board to take into consideration the developments in the bike path investigation when Capozzi came up for parole next month.

But that all changed on one snowy day shortly after Sanchez’s arrest as Evans Police Detective Lt. Samuel V. De- John drove in the Southtowns with Amherst Detective Eddie Monin. While not on the official task force, they, too, were investigating unsolved rapes with possible connections to the Bike Path Killer, including one in 1977 in Evans.

DeJohn recalled lamenting to Monin that his department had thrown out physical evidence from that investigation — leaving no chance of testing for traces of DNA that could connect it to the Bike Path Killer.

Monin had a suggestion: “Did you ever think that maybe ECMC retained some of that stuff? You never know.”

DeJohn called the hospital and learned, much to his surprise, that the hospital did, in fact, have a huge catalog of glass slides, taken as part of standard rape kits performed on victims, that dated back from 1973 and went up to 2002.

The hospital did not have a slide for the 1977 victim, DeJohn said.

But DeJohn said he decided to e-mail Deputy District Attorney Frank A. Sedita III to let him know — just in case he didn’t — that these slides existed.

It appears that no one in local law enforcement had any idea that these slides existed, although there had been rumors about the possibility of old evidence lingering at ECMC and other hospitals.

Clark said Wednesday that his office, and numerous other law enforcement agencies, had made inquiries to ECMC previously about old evidence but never got anywhere until a subpoena was served to the hospital last week. “We were chasing our tails,” Clark said.

Clark said his office made three or four attempts to obtain old evidence. D’Agostino said that it was his understanding that another lawyer, a friend of the Capozzis, also contacted ECMC.

No one got any results, according to Clark, until his office made contact with Dr. James J. Woytash, who is both the head of pathology at ECMC and the chief medical examiner for Erie County.

“Then, it was like ‘open sesame,’ ” Clark said.

ECMC attorney Anthony J. Colucci III said he is not aware of any law enforcement agencies having asked for slides until the hospital was sent a subpoena via e-mail March 16.

He also said he does not know of any other subpoenas for the slides or any other attempts by law enforcement officers or lawyers to obtain the evidence.

The March 16 subpoena included a long list of slides and other possible physical evidence connected with the investigations of attacks on several rape victims, including the women involved in Capozzi’s case.

The hospital was ordered to produce the evidence by March 20, Colucci said.

“We were digging around like crazy,” he said. “People came in over the weekend, even though they didn’t have to.”

The slides from the victims of the rapes for which Capozzi was convicted, along with those of other victims that police were interested in having analyzed, were submitted March 20.

D’Agostino said Capozzi and his family are not ready yet to consider whether they might pursue any kind of civil action against the county or the hospital for his wrongful incarceration.

Clark said that he does not know why law enforcement agencies were not able to access the slides until now but that he expects many inmates convicted of rape to try to have their cases reopened.

“I have no doubt that we will be deluged,” he said.

Woytash, too, said he does not understand why there was so little information available about the slides.

“All I can say is that when I was asked — and that was just a couple of weeks ago — that’s when we said, ‘Oh, yeah, we’ll look for so-and-so’s slide.’ ”

Woytash, who has been at ECMC since 1999, said he cannot recall ever being asked to find the slides for investigations. He said there might have been some confusion because rape kits are now handled exclusively by the countyrun Central Police Services forensic lab.

“I don’t think its anyone’s fault,” he said of the lack of communication over the slides, but he said he is ecstatic to help exonerate an innocent man.

“Unfortunately, in my line of work, you see every sad case that’s possible,” he said. “This is one of the times when you really make a difference.”


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