(The Case Of Zolo Agona Azania)
Zolo Agona Azania was sentenced to Indiana’s death row after his conviction for the killing of Gary, Indiana police Lieutenant George Yaros who was fatally wounded in an exchange of gunfire with three or more people who fled from an armed bank robbery at 3680 Broadway.
On August 11, 1981, Zolo Agona Azania (visual artist and community, human rights advocate), was stopped by police near the neighborhood where he lived, handcuffed, pistolwhipped, and was arrested on 25th and Lincoln Street, near the alley at the Food-Seller Supermarket. The lone white cop, Corporal Charles D. Oliver, who arrested Zolo, put him in the patrol car in full view of bystanders. He then drove around the block to 25th and Buchanan Street, and Oliver said that he captured Zolo there.
Sometime that same day, a police officer got a .44 caliber pistol from the Gary police station, then carried the gun to 25th and Lincoln Street, and laid it on the ground between two houses, a short distance from where Zolo was arrested, and took a picture of it. The state prosecutors claimed the .44 was the murder weapon. Donald McDuffie Sr., a well known loan shark, was threatened and intimidated by police to testify in court that he sold this gun to Zolo. A .38 caliber pistol which was also presented as incriminating evidence against Zolo, was, in fact traced back to the Gary police department by B.A.T.F. (Bureau of Alcohol, Tobacco, and Firearms ) agents.
No one ever said that it was a Black person who shot the cop. It was a forgone conclusion that Zolo was singled out and targetted by other cops. Zolo wasn’t arrested at the bank, but miles away walking down the street unarmed. Although two other men were also arrested in a different location, and charged with the armed robbery and killing, the prosecution focused on the most damaging circumstantial evidence on Zolo, falsely claiming that he was the one who had fired the fatal shot at the police officer at close range, “execution style.”
There was never any incriminating identification of Zolo in any police reports in this case. Zolo was held in jail for thirteen (13) days without an arrest warrant. He was not advised of his rights nor read an arrest warrant of any kind. There was no preliminary hearing, no pretrial identification, no evidence presented for probable cause for arrest, instead, he was held incommunicado at the Crown Point, Lake County, Indiana jail for nine days. On the tenth day, the prosecutor secured a hasty Grand Jury indictment based on false and misleading evidence. Three days later the prosecutor secured a rubber-stamped arrest warrant based on the Grand Jury Indictment.
Zolo is an uncompromising, critical writer. He had been active in community and civil rights work in Gary, and in the Chicago area. He was involved in the campaign to make the Rev. Dr. Martin Luther King Jr’s. birthday a national holiday, was a budding artist, and an outspoken supporter of self-determination for Black people in the United States, and the diaspora. He also did campaign work for Steel Mill labor union candidates. Zolo had also received some local news media attention because of his successful graduation from a G.E.D. (General Education Diploma) program after his release from prison in 1980 for a voluntary manslaughter conviction when he was eighteen (18) years old, which was subsequently vacated (reversed).
The judiciary system is the third branch of political government in the United States of America. Judges are both appointed to the bench to fill vacancies, and are elected. Judges are supposed to be a neutral referee. Politics are never neutral – for there is always positions of interest involved. Judge James L. Letsinger said in brusque terms, on the transcript in open court during the jury trial of Zolo’s younger brother – after he was acquitted of burglary in an unrelated case – that he was going to get Zolo. Letsinger made arrangements with an employee in the Lake County Clerk’s office to assign Zolo’s case to his courtroom when it comes in. Zolo was able to have his original trial venued to Fort Wayne, Allen County, Indiana because of hostile pretrial publicity, and the prejudice of the white judge. But Allen County has a much smaller Black population than Lake County. The next judge was the same type of person.
Allen Superior Court Judge Alfred W.Moellering commenced the trial on April 19, 1982, and he allowed armed uniformed police, some wearing white gloves, to line the courtroom walls and corridors. Judge Moellering let the state prosecutors make hand signals to the witnesses who testified against Zolo. The all white jury was allowed to watch and read the prejudicial headline news at home about Zolo’s case on television, and in newspapers everyday. The court was an armed camp. Snipers were in the rafters. Out of 308 bank surveillance photographs, Zolo had not been identified by anyone. Alvin Montgomery, a state witness for the prosecution, was threatened by police at his city job, and told to say that he carried Zolo to Donald McDuffie Sr.’s house to buy a .44 pistol. Alvin agreed. But when Alvin got on the witness stand, he recanted in open court, then Moellering let the prosecutor impeach him. Former Lake County Coroner, Albert T. Wilardo, and his assistant, Alexander Custodio, the pathologist, are both medical doctors who played a sinister role in getting Zolo framed. The autopsy report about the cause of death of the policeman, who had happen to be white, was falsified in relation to the trajectory of the projectile and ballistic test-firing of the weapons.
St. Mary’s Hospital X-rays revealed that all wounds were through-and-through, and there were no bullets in the body. But Dr. Wilardo and Dr. Custodio said one was found during the autopsy examination. It was another police officer who testified that this bullet matched the .44 gun. As a result of the prosecution’s efforts to frame the evidence against Zolo, he received the death penalty while his co-defendants, Ralph Dennis Hutson, and David North, each of whom had close family members who were Gary police officers, were sentenced to sixty (60) years on May 25, 1982. Zolo’s direct appeal to the Supreme Court of Indiana was rejected and denied in October 1984. The callous, racist nature of law enforcement and judicial actions in these United States is no mystery. Drs. Wilardo and Custodio were later convicted in Lake County of unrelated crimes. Judge Moellering subsequently retired.
Judge Vernon E. Sheldon was next assigned to preside over Zolo’s petition for post-conviction relief in 1986. The deputy prosecuting attorney, James W. McNew, admitted that there was no Pretrial identification procedure utilized with respect to Zolo in connection with the armed robbery of the Gary National Bank! In spite of the material facts that the prosecutor also admitted in writing that there was no preliminary hearing, no pretrial identification, no evidence presented for probable cause for arrest of Zolo Agona Azania.
Moreover, a paraffin gunshot residue (G.S.R.) test performed on Zolo’s hands by police shortly after his detention showed that he hadn’t fired a gun. All of this factual information is a matter of public record. Nonetheless, Judge Sheldon denied Zolo’s request for a new trial in 1988. Zolo’s legal defense had not been independently investigated. His legal defense was undermined by deceit and treachery of the sell-out court appointed public defenders who represented him in the 1980’s through the 1990s. Ex-Governor Evan Bayh appointed Scheibenberger to the court in 1991 after Moellering retired.
On May 27, 1993, the Indiana Supreme Court ruled that the police and trial prosecutor committed a Brady violation in hiding the G.S.R. test results, and that Zolo’s trial attorney, David R. Schneider, was ineffective during the penalty phase. The court reversed judgment of the post-conviction court and remanded the case with instructions to set aside the sentence of death, and to grant post-conviction relief in the form of new jury and judge for sentencing, or to impose a sentence of years.
Judge Kenneth R. Scheibenberger was assigned to preside over Zolo’s retrial on the sentence in 1994. His court appointed defense counsels failed to do any factual investigation of the case. They also failed to present any material evidence of mitigation concerning Zolo’s background or accomplishments. The sheriff of Allen County helped the prosecutors to subvert Zolo’s legal defense by exerting political pressure on his expert witnesses, and made them abandon his case under the threat of losing their regular county jobs! Few means of coercion are as effective as those that threaten ones livelihood or economic interests.
In January 1996, the Ku Klux Klan protested in front of the courthouse in support of the police, and against the Rev. Dr. Martin Luther King Jr. holiday. On February 12, 1996, the jury selection process started for the retrial on the sentence only. The judge had Zolo shackled during the trial. He relied on the self-serving opinion of the sheriff, and other police agents that leg irons or other restraints should be placed on Zolo in the presence of the all-white jury. In this trial, the prosecution changed its theory as to which shot was the fatal one, and the evidence showed that the officer was not shot from close range in execution style.
Again, prosecution witness, James Charles McGrew, came forward, and testified that he lied when he said under oath that he saw Zolo hiding evidence in some bushes, and then was running away from the police. James fabricated his testimony because he felt that his life was in danger if he did not make this false identification. The jury was allowed to consume alcoholic beverages during the course of the trial. The court bailiff spoke to the jurors in the deliberation room on the orders of the Judge Scheibenberger. The bailiff explained that the defense would probably ask the judge to ask each person on the jury if this is their verdict, and that they should be ready to state that it is death, and don’t change it. The judge talked with the bailiff on the telephone twice that night from a local tavern, and told him to go into the jury room while they were deliberating. The jurors were not brought into the courtroom to deliver their verdict until the judge got back to the court from the tavern, Zolo was fortunate to find out about the ex parte communication, and the foreman of the jury gave a sworn affidavit to these facts. Zolo was again given the death penalty. The Indiana Supreme Court denied Zolo’s appeal on June 6, 2000.
It was later discovered that the Allen County computerized jury system in 1982 and 1996 was fatally flawed eliminating almost one-half of the eligible Blacks from the county from any possibility of jury service. It has been conclusively established that Allen County’s computerized jury selection system had been under representing residents of Wayne Township, and Afrikans for sixteen (16) years. An execution date of October 25, 2000 was set on Zolo. His pro bono attorneys, led by Michael E. Deutsch of the “People’s Law Office” in Chicago, requested permission from the Indiana Supreme Court for a stay of execution, and to file a successive petition for post-conviction relief. A stay was granted, and Zolo’s case was remanded, in part, to the trial court for an evidentiary hearing concerning perjury of the prosecution witness. On November 2, 2000, the Supreme Court of Indiana issued another order authorizing Zolo to present his legal claim that an error in the Allen County jury selection system denied him the constitutional right to a fair trial, due process, and equal protection of the laws. A post-conviction petition is not a substitute for an appeal.
James Charles McGrew, testifying via videotape in 2001 at a post-conviction relief hearing in Allen County that after repeatedly telling prosecutors that he could not identify who it was he saw place the objects in the bushes, that turned out to be a pistol and jacket. James was placed in a small room prior to testifying at the first jury trial when a large, red-haired law enforcement officer entered the room, told him to identify Zolo, and pointed to Zolo in the courtroom.
Before the hearing in Allen County in 2001, Zolo’s lawyers made a series of written motions to exclude Judge Scheibenberger, and all of Allen County’s judges from presiding over this hearing challenging the county’s bad faith administration of its jury selection system. All motions were systematically denied. Moreover, quite tellingly, Judge Scheibenberger failed to notify Zolo of the computerized exclusion, even though he had recently presided over Zolo’s sentencing trial with a jury selected from the very same system, where Zolo had moved to strike the venire, and there had been testimony that the system was choosing jurors randomly and working properly. In April 2001, Judge Scheibenberger fixed a misdemeanor alcohol abuse charge for his teenager son. The judge’s son had told his father he needed more time to prepare his defense; even though the case was pending before a court magistrate. Judge Scheibenberger obtained his son’s file from the clerk’s office, and made an entry continuing the case in the record. But Judge Scheibenberger denied Zolo’s petition for a new trial!
On November 22, 2002, the Indiana Supreme Court vacated (reversed) the death sentence. Judge Scheibenberger was quoted in the newspaper, with poorly disguised malicious intent, that he was “disappointed, but not surprised.” The first two trials were fatally flawed as a result of the wrongdoing, and malfeasance of the state authorities, and yet whether or not Zolo again has to fight for his life is left to the sole discretion of the Lake County prosecutor, Bernard A. Carter.
On March 17, 2003, Judge Scheibenberger denied Zolo his constitutional right to be tried in Lake County, Indiana, the county in which the armed bank robbery, and killing of the police officer took place. While the prosecutor, Carter, an Afrikan in Amerikkka, raised evasive technical legal grounds in opposing the transfer, the real reason he opposed such transfer was to once again try to deny Zolo any Black people on the jury who will decide whether he lives or dies. Lake County has a Black population of 25% which is over two times greater than Allen County which is 11%.
In addition, Zolo showed at his hearing through press reports, and through the actions of jail officials, and the presiding judge that there is substantial existing prejudice against him in Allen County. In May 2003, Zolo’s lawyers filed a motion for acceptance of jurisdiction over an interlocutory appeal, in the Indiana Court Of Appeals. They also filed a verified request to transfer case to Indiana Supreme Court. On June 17, 2003, the Indiana Supreme Court unanimously agreed to accept transfer of jurisdiction from the Court Of Appeals. But they said that “the Motion For Acceptance of Jurisdiction over an Interlocutory Appeal is denied.” So, it appears, Zolo is being forced to face the same racist judge in the same racist county!
The judge has now ordered that Zolo’s trial proceed before him in Allen County within several months, over the vociferous objection of defense counsels who stated that there is no way they could be prepared to proceed on such short notice. The judge refused to consider counsel’s need for more time, and seems committed to railroading Zolo again to be executed. In July 2003, Scheibenberger was attending a party for a court magistrate at a local tavern, some women – one of them an Allen County court employee – raised their blouses showing their breasts, and he wadded up a $1 dollar bill, and threw it at one of the women. After this episode ofScheibenberger’s many antics were made public, he said he had a drinking problem, and checked himself into a drug and alcohol abuse rehabilitation center in Chicago, Illinois. Ethnic, racial privilege, and economic class superiority are no substitutes for social justice.
Four different lawyers who presided as judges over the case of Zolo Agona Azania engaged in prejudicial judicial misconduct in furtherance of conspiracy to murder him by using the death penalty law smacks of racism. They sometimes did the prosecutors’ work for them, sometimes they even consulted them. Zolo is being punished for the inadequacies of the court system, as an instrumentality of social repression and control, which smacks of political persecution.
Zolo is on trial for his life because of who he is, what he affirmatively advocated politically, how he looked, his “new” Afrikan name, and the challenges he posed to the status quo. Please visit www.allwhitejury.net. He is, at the same time, under attack for the type of art he produces. The court has surrendered to corruption. We need your help to expose the coverup. No one is above international law of human rights, be they prosecutors, police agents, or judges; the Bill of Rights in the Constitution is a Human Rights charter. You have the inAllenable right and responsibility as a human being to speak up for fairness, truth, justice, equality, and liberty.
Black people are generally considered less likely to impose the death penalty than whites, and are often viewed by judges and prosecutors as risky jurors because they may be skeptical of police. Do your independent investigation of this. We cannot allow this racist smarmy manipulation of the legal system to go unchallenged. Two racist jury trials, too many, were rigged against Zolo. We are asking you to write letters, e-mails, make telephone calls, and sign petitions, and let everybody know that concerned people are still actively watching. Systemic racial antipathy permeates the jury pool selection contradiction. Do everything possible to ensure that Zolo (your dedicated muckraker) receives a new trial by a cross-section of a jury panel of his peers. Thank youl
Zolo Agona Azania Freedom Campaign
Crossroad Support Network,
5206 South Harper,
Chicago, Illinois 60615
Telephone: (773) 737-8679
Update: On October 27, 2003, Kenneth R. Scheibenberger, Judge Allen Superior Court, grudgingly and reluctantly, stepped down from presiding over the present instant case. This judge, on his own motion, recused himself. Scheibenberger no longer occupies the place of authority as judge over the Zolo Azania case. This court recuses itself from further action in this matter and certifies this matter to the Indiana Supreme Court for the appointment of a special judge to preside over this case.
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