State’s high court bars death penalty in 1981 Gary police killing

State’s high court bars death penalty in 1981 Gary police killing

By Sara Eaton

The Journal Gazette, May 4th 2005

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.