State’s high court
bars death penalty in 1981 Gary police killing
By Sara Eaton
The Journal
Gazette
Lake County prosecutors have been barred from pursuing the death
penalty against a man convicted in Allen County of shooting and
killing a Gary police officer in 1981, a judge ruled this week.
Zolo Agona Azania, 50, formerly known as Rufus Averhart, was
convicted in 1982 of murder in the 1981 slaying of a police officer
during a Gary bank robbery. An Allen County jury sentenced him to
death twice but the Indiana Supreme Court overturned the sentences
while upholding the conviction.
Since the most recent reversal, Azania’s attorneys, Michael
Deutsch and Jessie Cook, argued to eliminate the possibility of
allowing prosecutors to continue pursuing the death penalty. Deutsch
argued during a hearing this year that the 23-year-old case has been
delayed by the prosecution, which has violated Azania’s due process
rights.
Boone Circuit Court Judge Steven H. David, who was appointed as
special judge to oversee the case after all three Allen Superior
Court judges recused themselves for various reasons, ruled in favor
of Azania. The case was originally transferred to Allen County from
Lake County because of pre-trial publicity. Jurors in each trial
have been Allen County residents.
The ruling pleased Azania and his attorneys, Cook said. A message
to Deutsch was not returned Tuesday.
The Lake County Prosecutors Office, meanwhile, intends to appeal
the decision, spokeswoman Diane Poulton said. The office was
disappointed in the judge’s ruling, she said.
The three-week penalty phase trial, scheduled for early 2006,
will likely be canceled and a standard sentencing date will likely
be scheduled. Azania will make his next appearance in Allen Superior
Court on May 20, when the attorneys and the judge are expected to
discuss how the sentencing will occur.
“In analyzing the period of delay between the defendant’s 1982
conviction and the currently pending penalty proceeding, it is clear
from the record that the state bears most of the responsibility for
the delay. Although blaming the state is not the appropriate
analysis alone, the bottom line is that very little of the overall
delay is attributable to the defendant.
“There is merit to the defendant’s argument that given the 23
plus year passage of time the jury will likely conclude that the
defendant if not given the death penalty will soon be released from
prison … the court must recognize that there is no realistic way to
prevent this issue from being in the minds of jurors as they
deliberate the case,” the ruling states.
David repeatedly highlighted that his ruling stems from
particular circumstances in this case, explaining that he supports
the death penalty and doesn’t believe his ruling should decrease the
severity of the crime.
David also wrote that if the prosecutors continue with the death
penalty, Azania might have difficulty defending himself because some
witnesses have died over the years. Defending himself is a
constitutional right, and the ruling states that allowing
prosecutors to continue with the death penalty could violate
Azania’s constitutional rights.
Although David granted the request barring prosecutors from
seeking the death penalty, he ruled against several other requests
Azania’s attorneys raised, including the dismissal of the entire
case.
Azania is one of three men convicted of shooting Gary police
officer George Yaros during a 1981 bank robbery. Allen County jurors
first recommended the death penalty in 1982, and Allen Superior
Judge Al Moellering sentenced Azania to die the first time.
Azania appealed, and the Indiana Supreme Court, citing
ineffective counsel, sent the case back to Allen County in 1996 for
a new sentencing hearing. Azania was again sentenced to death, this
time by Allen Superior Judge Kenneth Scheibenberger. But the high
court ruled in 2001 that Azania could challenge his sentence after
he objected to his jury pool. Azania’s attorneys argued the jury
pool did not accurately represent the community.
A computer program excluded Wayne Township registered voters from
Allen County jury pools between 1981 and 1996, Azania’s lawyers
said. The glitch resulted in a pool of 189 people – with only five
blacks – for Azania’s case. Azania is black.
Scheibenberger ruled in April 2001 that Azania’s lawyers failed
to prove any intentional discrimination or systematic exclusion of
black jurors from Allen County’s jury pool and that the exclusion
was caused by a computer flaw that was immediately remedied upon
discovery.
Indiana Supreme Court Justices Robert Rucker, Frank Sullivan Jr.
and Theodore R. Boehm ordered a new penalty hearing but kept
Azania’s conviction intact. Justices Brent Dickson and Randall T.
Shepard
dissented.
© 2005 Journal Gazette and wire service sources. All
Rights Reserved.
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