Marty Flynn still remembers the silence...33 years later. The eerie silence belied the horror waiting inside an old Brooklyn duplex.

"I walked upstairs and looked in her room and found her on her bed." It was his sister.

The scene was disturbing. Mary Anne Flynn, a 33-year-old nurse, was raped and strangled.

Cleveland Police quickly focused on neighbor Tony Apanovitch, a roughneck drinker with a sordid past of sex offenses. He once painted Flynn's home, but she feared him.

But despite a bloody crime scene, there was no physical evidence...not yet anyway.

"Anthony Apanovitch is a violent killer and rapist," says Cuyahoga County Prosecutor Michael O'Malley. "I have no doubt whatsoever about that."

O'Malley says Apanovitch had already been convicted of forcibly raping a 16-year-old in 1976. But the conviction was reversed and he pleaded guilty to sexual battery.

8 years later, he was sentenced to death in the Mary Anne Flynn case. But in a stunning move, Judge Robert McClelland ordered a new trial and set Apanovitch free on a $100,000 bond last year.

"I don't know if society is ever really safe with a sex offender back in their midst," says Marty Flynn.

Judge McClelland sided with Apanovitch based on a single new DNA test. While that one DNA test excluded Apanovitch, another test in 2007 showed his semen on Mary Anne Flynn's body.

The family can't believe what's happening.

"It was very upsetting," says Marty Flynn's wife Kate. "I couldn't understand how one person could just sweep in and make this pronouncement and all of a sudden he's out on the street."

The 62-year-old Apanovitch is a free man living in Akron. He's married and riding motorcycles.

O'Malley is appealing Judge McClelland's decision. "The evidence was strong when he was convicted, it's even stronger now," he tells The Investigator, Tom Meyer.

He calls Apanovitch 'a violent sex offender and thief who poses a threat to public safety.'

"I really believe there's only one place Mr. Apanovitch should be, and that's behind bars."

Prosecutors have appealed the judge's ruling all the way to the Ohio Supreme Court. A decision is months away. Even if the state loses, prosecutors say they will take Apanovitch to trial for the murder.