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Son's arrest leads mother on a 22-year journey of faith

BUFFALO (AP) — Mary Capozzi looks for a moment at the white kitchen door as if she is seeing once more the policemen leaving through it, with her son, Anthony.

Police had been to the house a day or two before looking for a tank top, shorts, a ski mask, a gun — the tools of a rapist who was striking victims in the city's Delaware Park.

"Go ahead and look anyplace you want," Mary Capozzi had told them. Not only was her Anthony not a rapist, he wouldn't be caught dead in the gym clothes police described. 

Not Anthony, with his crisp, white shirts and trousers pressed so particularly that she had to take extra care so the crease didn't fall too sharply on his shoes.

A gun?

"My son was afraid of a needle this big," the slight, feisty mother of five said, holding her thumb and index finger two inches apart. "He would never own a gun."

But now, two officers were here in her kitchen, leading away 29-year-old Anthony as she and her husband, Albert, watched, panic-stricken. It was her middle daughter, Kathy's, birthday: Sept. 13, 1985 .

"Don't worry, Mom," Anthony told her. "I'll be back."

She believed him. And waited — for technology not yet imagined, for people whose names she did not yet know — for the next 22 years.

On Feb. 5, 1987 , Mary Capozzi wept in state Supreme Court as a jury convicted her son of two of three rapes he had been accused of committing between December 1983 and July 1984. The victims had picked the dark-haired Capozzi out of lineups after a former policeman pointed investigators in his direction. Capozzi, who has schizophrenia, had been acting strangely at a coffee shop about a mile from the park, the policeman reported.

Capozzi was sentenced to 11 2/3 to 35 years in prison on two counts of first-degree rape, two counts of sexual abuse and two counts of sodomy.

"Please don't take comfort in the fact that Anthony Capozzi has been convicted of these two crimes, because he didn't do them," Capozzi's attorney, Thomas D'Agostino, told women through news cameras that converged after the verdict. "Don't feel that you can go running without company in Delaware Park ."

Hope that the legal system would save Capozzi was quickly fading.

His mother had already put her faith in something bigger.

Every day after her son's arrest, Mary Capozzi prayed inside Holy Angels Church, a 150-year-old sanctuary with two soaring steeples a block from her home. Seven days a week, there were rosaries and novenas to Our Lady of Hope, prayers for her son's freedom and for peace for her, for her Anthony.

"You have to have faith," Mary Capozzi, now 75, says. "You've got to have something to hold on to."

She would pass that faith on to Anthony during the heartbreaking prison visits that went on year after year.

"Dad, what am I still doing here? I didn't do anything. I didn't hurt anyone. I wouldn't do anything to hurt a lady," the son would say to his father, who was 59 when the visits started, 81 and white-haired now.

It was his wife's faith in her son that strengthened his own when doubt would creep into his thoughts, Albert Capozzi says. His son had shown signs of mental illness, after all, and three victims seemed so sure it was him.

"But my wife said no. My son never did that," Albert Capozzi said. "She made a better person out of me because of that."

Anthony Capozzi spent 15 years at the Central New York Psychiatric Center in Marcy, a taxing 400-mile roundtrip drive for his family. There were shorter stays at Wende Correctional Facility outside Buffalo and Attica , a dismal fortress closer to home.

His mother's prayers continued through them all, and through other family trials: two daughters' battles with breast cancer, another's with multiple sclerosis.

"We told Anthony, we're a big family and we've got to stay together," Mary Capozzi said, "because you stay together, you're strong. Pull apart, you break and you're nothing."

Every two years beginning in 1997, Anthony Capozzi appeared before a three-member parole board, but his family learned quickly not to get their hopes up.

To be considered for release, Capozzi would have to complete mandatory sex offender programming — something that would have required him to admit to the crimes and show remorse.

"Ant," his younger brother, Albert Jr., would say, "just say that you did it because if you say that you did it, you're going to get out."

"I can't," came the reply. "I didn't do it."

Five times, parole was denied.

A sixth parole hearing was scheduled for April 3, 2007 . This time, finally, there was reason to hope.

D'Agostino and a second lawyer, a parole expert named Norman Effman, had built what they believed was a strong case for Capozzi's release. It was based on the January arrest of a man whose DNA linked him to three murders and at least eight rapes from 1981 to 2006.

Two of the so-called "Bike Path Rapist's" crimes, in 1981 and 1986, occurred in the same park where Capozzi was accused of attacking women, and the description of the crimes was similar. In all the rapes, victims said they were surprised from behind or as the rapist ran by them, and the assailant told victims to wait 10 or 20 minutes before fleeing.

Snapshots from the 1970s and '80s of Capozzi and newly arrested Altemio Sanchez show similar dark hair and mustaches. The men are a year apart in age.

The parallels were enough to convince a half dozen detectives working the Bike Path case that Sanchez — a married factory worker who raised two sons while Capozzi was locked away — was responsible for all the park rapes.

"We thought we had a reasonable shot at parole," Effman said.

(Sanchez has pleaded not guilty to three murders. He cannot be charged with the rapes because the statute of limitations has passed.)

With the hearing approaching, there was a stunning find.

DNA evidence from Capozzi's alleged crimes — evidence no one knew existed — was located at Erie County Medical Center , the Buffalo hospital where the victims had been treated.

No one has been able to explain why law enforcement did not know of the hospital's large catalog of glass slides that had been part of victim rape kits dating from 1973. The cache came to light only after a police officer working other unsolved rapes, on a hunch, asked the hospital whether such evidence might exist.

"The DNA was not of Anthony Capozzi," Erie County District Attorney Frank Clark announced five days before the hearing. "It was Altemio Sanchez."

"I don't want anybody to take this away from me," Mary Capozzi said that day, as she reveled in the news with her family at a daughter's hair salon.

The next day, Mary Capozzi returned to Holy Angels church to set flowers before the Blessed Mother. "Just a little token for her for what she's done for me and my family and for my dear, dear son."

Within days, Erie County Judge Shirley Troutman threw out Capozzi's conviction and ordered him freed. Twenty-one years and 201 days after he was first imprisoned.

The Capozzis were reunited at the Buffalo Psychiatric Center , where Anthony Capozzi is being evaluated. He greeted his mother with hugs and kisses.

On Easter, parishioners applauded the family at Mass.

"I'm not angry at all," said Capozzi, now 50, his dark hair close cropped and graying. "I'm glad to be home ... It's all over now."

For his mother, there is sadness over time lost and memories of the empty ache of absence at so many holidays and birthdays.

But overriding are happy vows to make up for all of that — and then some.

Because his schizophrenia must be treated, Capozzi will likely live in an assisted living setting.

Throughout their neighborhood, blue vinyl ribbons rustle on trees and telephone polls. Neighbors tied them there as a welcome home for a returning son, and as thanks to the heavens for a mother's answered prayers.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redis tributed.

Testing Available Since ’90s DNA from ’83, ’84 rapesmatches Sanchez, DA says

By Maki Becker BUFFALO NEWS STAFF REPORTER 03/29/07

“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.

Her son freed, Mary Capozzi dies in peace

Mary Capozzi, who endured 22 years of sorrow for her wrongly imprisoned son, died in peace Sunday, her prayers answered.

Mrs. Capozzi, 78, died from congestive heart failure in Buffalo General Hospital.

Her unwavering faith in God and in the innocence of her son Anthony Capozzi inspired many in the community for years. But her story won the hearts of a nation when he was exonerated in 2007 of the rapes that put him in prison for more than two decades.

"She felt her prayers over 22 years were answered," said her son, Albert Capozzi Jr.

"My mother died in peace not only because my brother is home but from her strong belief in the Lord," added her daughter, Sharyn Miller.

A memorial Mass will be offered 10 a.m. Wednesday in Holy Angels Catholic Church on Porter Avenue.

Mrs. Capozzi was a familiar face inside the West Side church.

Seven days a week, since her son was locked up, she went faithfully to Holy Angels. She went Tuesday through Friday mornings; at 4 p.m. Saturday; Sunday mornings; and Monday evenings.

Her prayer: "Please, God, make my son free, if it's your will. Give us peace, all of us, but most of all, my son, Anthony."

On a March night in 2007, while sitting in the kitchen of daughter Pamela Guenther's home in East Amherst, Mrs. Capozzi learned that her prayers had been answered.

"Thank you, God, for what you've done for me," she prayed that night.

Through all the years of his imprisonment, "she never gave up on her faith," her son Albert said Sunday. "Her faith got stronger."

After learning that Anthony had been exonerated, the Capozzi family singled out then-Buffalo Police Detective Dennis A. Delano, who had publicly professed his belief in Capozzi's innocence.

"I've never even talked to Dennis," Mrs. Capozzi said at the time. "But he took on a cause where he put his job on the line, and we didn't even know him."

Delano visited Mrs. Capozzi on Saturday, her family said.

"Dennis came to see her in the hospital," Albert Capozzi Jr. said. "She opened her eyes and looked at him, and she smiled at him."

Mrs. Capozzi got sick about two years ago. In recent months she became home-bound, and she regretted not being able to attend church every day and volunteering for church activities.

"We were lucky in that we had so much time to spend with her," said Miller, her daughter. "We could show my mom how much we loved her."

Every day, one or more of Mrs. Capozzi's children would come to her Jersey Street home to help with her medical needs and spend time with her.

Anthony, who has schizophrenia and has lived in an assisted living facility since he was freed, would come home on Fridays and Sundays -- without staying overnight.

"He was able to spend some quality time with my mom," Miller said.

Survivors of Mrs. Capozzi include her husband, Albert J. Sr.; sons, Anthony J. and Albert J. Jr.; and three daughters, Sharyn Miller, Kathleen Jeras and Pamela Guenther.

Mrs. Capozzi embraced the community because of the outpouring of affection and support for our family, her children said.

Her children recognize the community's interest in their mother.

"It seems like we shared her with a lot of other people," Miller said.

Her experience helped others renew their own faith, said her son Albert.

Mrs. Capozzi talked about her public profile in May when she was asked how it felt to be one of Western New York's favorite mothers for a Mother's Day story published in The Buffalo News.

"Very nice," she replied. "I like people. They make me happy. "I go to church, I have more people coming up to me and kissing me," she said. "Now church is over, and a few more come over. They don't have to come up to me, but that's beautiful. My husband always says, "Mary, a lot of people love you.'"

Senator Volker Announces Passage of "Anthony’s Law"

By Dale M. Volker

Created 03/26/2009 - 7:44pm

(ALBANY, NY) Senator Dale M. Volker (R-C-I, Depew) announced today that he has passed legislation that would give docket priority to claims for those who have been unjustly convicted and imprisoned. "Anthony’s Law" is named after Anthony Capozzi, who was convicted over two decades ago of a crime he did not commit. Due to an administrative error, DNA evidence which would have exonerated him was never examined until recently. Despite the fact that he did not commit this crime he has spent more than half of his life behind bars.

"Anthony Capozzi is an innocent man who by no fault of his own, was convicted and imprisoned for over 20 years," said Senator Dale M. Volker. "Justice was not served, and this man and his family have already waited too long for the criminal justice system to correct this wrong. In passing "Anthony’s Law" Mr. Capozzi will be able to quickly have his case considered by the Court of Claims in an expedited manner. This is the right thing to do and will give Mr. Capozzi the opportunity to clear his name and seek damages to an injustice that began over 20 years ago."

It has been established that it can take between 1 1/2 years and four years for a case to be considered and resolved by the Court of Claims. A wait of 2 years for a person unjustly convicted is inexcusable - four years would be an even greater travesty. Any claim made against the State for their unjust imprisonment should be given the highest priority. The preponderance should be that the State should take proper action to ensure that any claims placed against it as a result of their false imprisonment should be resolved in short order. 

This way people like Anthony Capozzi - who have been unfairly treated by our system of justice - can start to rebuild their lives. The speed with which their case is taken up should be proportionate to the harm done to them by our system of justice.

The Wrongful Conviction of Anthony Capozzi: The Hindsight of DNA Technology

by William J. Morgan, Jr.©

On September 29, 2006, a woman named Joan Diver from Clarence, a suburb of Buffalo in Western New York, was found unclothed, beaten, and strangled to death on bike path in the Town of Newstead, a popular attraction for bikers and joggers (Becker, 2006). Her husband, Steven Diver, stated that he had seen her vehicle parked near the bike path on the morning of the crime and provided a DNA sample to eliminate him as a suspect. While the Diver case was lacking sexual assault, the killer left a DNA sample behind that conclusively linked him to the murder. 

The modus operandi of the killer was familiar to detectives from cases of serial rapes and murders 1986-1994, which included nine rapes and two murders. The killer preferred white females, stalked parks, secluded areas, and bike paths in the Western New York area, attacked the victim from behind, and left a signature of double ligature marks from a chain on the necks of victims (Becker, 2006; Warner³, 2007). The DNA and modus operandi matched cases from as far back as 1983 where a 13-year-old girl was raped as she rode along railroad tracks on her way to school; the incident occurred long before DNA evidence was available and where the rapist-killer left DNA at 8 of the rapes/murders (Warner & Becker, 2006). The other women killed were Christine Mazur and Linda Yalem; the latter was killed on September 29, 1990 as anniversary dates are important to serial killers.

A profile of the killer created by criminal investigators revealed an organized, arrogant, nonpsychotic, methodical, meticulous, plotting individual, who left few clues behind, is white, and now in his 40s or 50s (Becker¹, 2007; Warner & Becker, 2006). Most important was that he was becoming increasingly violent. The sample left behind by the killer, which turned out to be a drop of sweat left in the vehicle of Joan Diver (Warner², 2007), let the people of Buffalo know that the Bike Path Killer-Rapist had returned. Because of a lapse in attacks since 1994, officials thought that the killer may have been incarcerated and the most recent murder due to release of an inmate. A recently enacted law requires all felons, including probationers, to submit to the DNA state databank that attempted to match to all DNA samples provided, and yielded no results; all parolees who had not provided a court-mandated sample were  pursued (Becker, 2006).

In January of 2007, the eating utensils of Altemio Sanchez were collected from a local Buffalo restaurant where the suspect ate and processed for DNA; the samples matched that from the crime scenes of the Bike Path killer/rapist (Gryta¹, 2007; Thompson, 2007). Sanchez was charged with the death of Christine Mazur, Linda Yalem, and Joan Diver; these are assertions that he vehemently denies (Gryta², 2007; Warner¹, 2007). Because DNA was only recovered from the vehicle of Diver and not her body, the case is circumstantial (Gryta¹, 2007). The attorney of Sanchez commented that the admissibly of evidence collected, and when, would be an issue brought before the court, and was expected to be the main issue. However, because of a five-year statute of limitations according to New York State law, the rapes cannot be prosecuted although five of the rapes and all murders were linked to Sanchez. (Warner², 2007). Friends and family portrayed Sanchez as friendly guy that would be least expected to commit a crime of this magnitude. A former profiler for the FBI said that is the psychopathology of serial killers: normalcy, sanity, and legitimately nice. For example, in the mid 1980s Sanchez was a little league baseball coach, volunteer for local charities, and known for his kindness and generosity. During that time, Sanchez was a suspect in the rapes but dropped for lack of evidence.

In 1987, Anthony Capozzi was convicted of two rapes in Delaware Park based on eyewitness testimony, the suspicious activity of a man matching his description by a former police officer, the identification of the suspect in police line-ups, a match in blood type of the offender, and strikingly similar facial features and build (Becker³, 2007; Warner³, 2007). Sentenced to 11 2/3 to 35 years for the rapes, he served 21½ years before investigators had their doubts about the conviction; Capozzi spent that long in prison because he maintained his innocence and refused to accept responsibility for the crimes. The Erie County DA, Frank Clark, cited that physical or DNA evidence to overturn such a conviction was lacking and because the conviction was based mainly on eyewitness identification (Warner³, 2007). DNA testing was not available or in its' infancy at the time of the crimes and conviction (Warner4, 2007).

Investigators looking over the case files discovered that indeed DNA evidence did exist from the Delaware Park rapes stored, preserved, and catalogued at the Erie County Medical Center before the use of computers to accumulate such evidence (Becker², 2007). The discovered evidence soundly exonerated Anthony Capozzi of the crime and DNA matched that of Altemio Sanchez. In early April, an Erie County Judge vacated the charges and dismissed the case in the interest of justice, thus, setting Capozzi free after incarceration for over two decades ("Judge vacates," 2007). To avoid a trial based on the overwhelming physical evidence, Altemio Sanchez pled guilty to the three murders on May 16, 2007 and his attorney likened his impulse control problems and animosity toward women to a drug or alcohol addict (Beebe & Becker², 2007).

Conclusion

The case of the Bike Path Rapist/killer spanned over two decades without a conviction and the conviction of an innocent man based on multiple types of evidence. A lack of DNA technology at the time of the crime made it possible for a man to be wrongly convicted and exonerated. This is also a case where DNA convicted a man for terrorizing the women of Western New York for two decades. The advent and improvements in DNA technology proved to exonerate those wrongly convicted, process evidence from suspects or eliminate potential ones, focus on those in the DNA computer bank when a match is made in criminal cases, and store evidence in cases where offenders have not been identified. DNA evidence has been the vanguard to exonerations of wrongful convictions and miscarriages of justice, especially where witness misidentification and/or the misuse of informants was the foremost reason for a wrongful conviction.

William J. Morgan, Jr.©
45 Oak Street
Buffalo, NY 14203
(716) 851-1246

William J. Morgan Jr. is ABD at Capella University and a criminal justice professor at Erie Community College.

References:

Becker, M. (2006, November 19). Felon's DNA being sifted in search for killer-rapist: Parolees hunted down for not giving sample. The Buffalo News, C1.

Becker, M.¹ (2007, January 21). Two live in juxtaposition: How did Altemio C. Sanchez, the ordinary guy, turn out to be charged as the bike path killer. The Buffalo News,    A1, A2.

Becker, M.² (2007, March 29). Newfound evidence that exonerated Capozzi stored at ECMC all along: Testing available sin '90s: DNA from '83, '84 rapes matches    Sanchez, DA says. The Buffalo News, A1, A2.

Becker, M.³ (2007, March 30). How Capozzi's case went terribly wrong. The Buffalo News, A1, A2.

Beebe, M. & Becker, M.¹ (2007, March 31). Handling of Capozzi evidence spurs feud: ECMC officials, Clark at odds over blame for evidence snafu. The Buffalo News,    A1, A2.

Beebe, M. & Becker, M.² (2007, May 17). Sanchez admits he's a killer. The Buffalo News, A1, A4.

Gryta, M.¹ (2007, March 2). Sanchez indictment expected in Diver case: Alleged bike path killer tied by DNA to 3rd victim). The Buffalo News, A1.

Gryta, M.² (2007, March 13). Sanchez pleads not guilty to 3 slayings: Opposes on trial to cover all. The Buffalo News, B1.

Judge vacates Capozzi's rape convictions (2007, April 2). The Buffalo News, A8. 

Thompson, C. (2007, January 23). Man accused of being "bike path rapist" pleads not guilty. The Buffalo News, A1.

Warner, G. & Becker, M. (2006, November 18). Bike path rapist's first attack may have been in '84: Details of girl's rape identical to others, but DNA was unavailable.    The Buffalo News, pp. A-1, A-2.

Warner, G.¹ (2007, January 17). Alleged bike path killer insists he's innocent: attorney may seek new venue issue of fair trial is raised, separate DNA tests sought. The    Buffalo    News, p. B1.
Warner, G.² (2007, January 19). Sanchez is facing indictment in 2 killings: Grand jury hears evidence in bike path slayings. The Buffalo News, pp, A1, A2.

Warner, G.³ (2007, January 28). Jailed man may be innocent: Delaware Park rapes that sent man to prison bear striking similarities to bike path attacks. The Buffalo    News, pp. A1, A2.

Warner, G. 4 (2007, March 4). Purchase at hardware store may link Sanchez to latest bike path murder: Lack of DNA on or near Joan Diver's body mean case hinges on    circumstantial evidence. The Buffalo News, pp. A1, A2.

By Jeff Schober and Dennis Delano