The Trials of Zolo Agona Azania, Political Prisoner: Videos Online!

Zolo Agona Azania is one of many Black revolutionaries who have spent most of their adult lives in prison, punished for their politics by the racist American “just us” system.

I have been in touch with Zolo for some years now, and have been privileged to publish a pamphlet of his writings and full-colour postcard book of his artwork, as well as keeping some documents regarding his case up on the Kersplebedeb website.

Certain New Afrikan revolutionary nationalists, prison activists, and opponents of the death penalty have supported Zolo over the years, and in Chicago today there is a No Death Penalty for Zolo! committee. Also, the People’s Law Office has been representing Zolo legally over the past several years, to good effect.

Yet for various reasons – most of which say nothing good about the state of our movements – neither Zolo nor his case are well known within the broader left. Unlike many political prisoners and prisoners of war, Zolo was framed at a time when the liberation movements were in retreat, in a smaller working class city without a big trendy scene. He was a young guy at the time of his conviction, so he had no track record going back to the glory days of the late sixties/early seventies.

Which means that his case is in extra need of publicity, of something to make people take notice… which is why i’m all the more glad to see that videos of Zolo’s lawyers slugging it out with the evil empire are now available on the “Oral Arguments Online” section of the Indiana Courts website. (Thanks to the National Lawyers Guild Chicago Chapter, who also have a blurb about Zolo on their website, for this link.)

There is a real sense of the issues that comes out in these video transcripts – no matter how dry and boring one might expect them to be – which is less obvious in written accounts. Definitely, if you have a couple of hours, they’re worth checking out.

And y’know, pointing you towards court videos wouldn’t be right unless i also mentioned that some good people in Chicago are putting together a documentary about Zolo’s case. While i don’t know the details behind this project, based on the trailer available on myspace i have high hopes.

If these videos help bring attention to Zolo’s case it’ll be about time, for this comrade has suffered too long with too little support.

In 1981, at the age of 21, Zolo Agona Azania was convicted of murdering a police officer during a bank robbery gone bad. Unlike his two co-defendants, Zolo was arrested unarmed, walking down the street miles from the scene of the robbery, and has always maintained his total innocence of any involvement in the crime.

Yet it was Zolo who was singled out as the triggerman who killed a police officer “execution style,” and who received a death sentence… while the two men who were caught in the getaway car with weapons received prison sentences.

Did i mention that Zolo was the only one of the accused who was a political activist? The only one who had his picture in the paper as a model for rehabilitation? The only one with an African-sounding name and look?

While the men who were caught red handed had close family members on the police force?

As the article Star Chamber Racism recounts:

• At the time of his arrest Zolo 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. He had done 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 years old (which had been subsequently reversed).
• Allen Superior Court judge Alfred W. Moellering allowed armed uniformed police with their white gloves on to line the courtroom walls and corridors. 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.
• a paraffin gunshot residue (G.S.R.) test failed to indicate that Zolo had fired a gun, but this evidence was hidden from the defense.
• prosecution witness James Charles McGrew lied for the police, claiming that he saw Zolo hiding a gun in some bushes and fleeing the police. McGrew later admitted to lying, explaining that he felt that his life would be in danger otherwise, as he had been told by police and a court bailiff to identify Zolo.

As a result of these lies and dirty tricks being exposed, in 1993 the Indiana Supreme Court reversed the death sentence – but incredibly left the guilty verdict in place.

Zolo was to be sentenced again, this time by a new jury… which consisted of 11 whites and no Blacks.

Again, his court-appointed lawyers provided ineffective counsel and presented no mitigating evidence about his life and accomplishments.

Nevertheless, at the time of this second sentencing Zolo did raise the question of why there were only five Black people in his jury venire of 189 people. (A venire, from what i understand, is the group of people who are called to court, and from which the court selects the twelve people who will sit on the jury.) He filed a motion to challenge the exceptionally white make-up of the venire, but at the court hearing the main clerk who was in charge of the jury system came in and testified under oath that the system was working properly and randomly in the selection of potential jurors.

So Zolo’s motion was rejected, and – left before a jury with no Black people on it, and with no effective legal representation – he was sentenced to die for a second time.

Only thing is, it later came out that this pool was neither representative nor random. In fact, it was revealed that Allen County had gotten a part time student to write the computer program that drew up the pool of jurors, and this program was written in such a way that 87% of Wayne township was in fact permanently excluded from the pool. As the urban center of Allen County, the exclusion of Wayne township meant that 48% of Allen County’s Black population were permanently excluded from serving on juries.

Now i have no idea if this was an intentional “glitch” or just a badly built program, but it’s completely immaterial – judges, attorneys, court officials and journalists saw all these juries sworn in with substantially less Black people than there should have been and nobody even noticed?!? That’s the racist outrage here, so far as i can see – you can add bleach to whiten what’s supposed to be a key democratic institution, and America is so racist everyone just thinks it’s normal. I guess they figured Black people weren’t smart enough to read their jury summons or something like that…

After fifteen years of this – that’s right: years, not months or weeks or days – they finally figured out that something was funny. At this point, it is both a sign of the State’s arrogance and of the weakness of our movements that the prosecutors did not simply and quietly agree to letting those convicted under the whitened juries have new trials.

Instead they dared to send Deputy Attorney Christopher Lafuse in to argue that it doesn’t really matter, because there aren’t enough Black people in Allen County for this to make a difference!!!

The first of the two videos on the Indiana Courts site consists of Zolo’s lawyer Michael Deutsch, who in 2002 appeared before the Indiana Supreme Court, arguing that the second death sentence should be reversed due to the racist jury selection process.

It’s great to see Deutsch kicking the Deputy Attorney General Christopher Lafuse’s racist ass over this “computer glitch” issue. And pretty incredible to see Lafuse putting on one sorry excuse after another…

Check out this back and forth between judge Rucker (the only Black judge on the Supreme Court) and the racist Deputy Attorney General:

Robert Rucker: In your brief you argue in favour of absolute disparity as the test this court should employ in addressing this claim. If you do that with the 10% cut off that means that the 8.5% of African-Americans that were in this pool would be all excluded and using absolute disparity that would be ok with you.

Christopher Lafuse: Yes. And I know that’s somewhat a harsh position to take here but I’m going to… I do have some explanation… the eight and a half percent, I mean the ten percent absolute disparity test really created a bright line standard for the Sixth Amendment violation. The Sixth Amendment I think doesn’t quibble about percentages. I think when the Supreme Court in Durham talked about –

Robert Rucker: So if 100% – if all African-Americans – were excluded from the jury list, that’s ok with you?!?

Christopher Lafuse: Well, we’re talking about unintentional exclusion first of all.

Robert Rucker: Yes.

Christopher Lafuse: So it’s not a Fifth Amendment where the county’s out to get minority jurors. That’s clearly a violation of the Fifth Amendment… there seems to me that there is a line somewhere… we’ve… the Supreme Court acknowledged in Durham that if we’re going to have jury selection we don’t require a perfect cross-section, only a fair cross-section. So it seems to me we’re drawing a line at some point, and wherever we draw that line there’s going to be groups that are below that line. So if that’s the case, then yeah, there has to be some groups that are so small in proportion to the entire community that the Sixth Amendment will sanction their unintentional exclusion from the jury source list.Now whether 8.5% is the proper line to draw, the courts really are all over the place on exactly where the line is but most courts have said 10% absolute disparity is really where you need to get before you really start looking closely at Sixth Amendment violations.

(To which judge Boehm said: “Eight percent sounds like a pretty good number to me, it’s one out of every twelve jurors… it’s enough to be a juror.”)

Zolo won that round, and so it’s fun to watch. Really, not boring like i’d imagine a court video would be – we know it’ll be the good outcome and this is so surprising that it makes the whole back and forth as interesting as it is on Law & Order or some such. But really, when you think about it what’s so nice to see is the surprising result, that in this instance the racist DA actually lost. His argument – that “minorities” can be excluded from juries if they live in areas where they form less than 10% of the population – was so racist – as it would essentially disenfranchise people of colour throughout most of the United States – that it just couldn’t fly. Might upset the neo-colonial apple cart, you know.

As Deutsch points out, this “glitch” reduced the possibility of getting even one Black juror by 25%… and yeah, lo and behold, surprise surprise, Zolo was sentenced to die by a jury with not a single Black person on it.

What difference might even one Black juror have made? Well, the issue is spelled out in this exchange between judge Boehm and Lafuse:

Boehm: The fact that this is a death penalty recommendation, gives us the statistical correlation between African-American jurors attitudes towards the death penalty as a basis for thinking that even if you’re generally correct that this is acceptable or at least not reversible error, in this procedural posture it is. Would you comment on that point?

Lafuse: With regard to the constitutional claim I’m not aware of any case anywhere that has held that death penalty cases are different analysis under Durham than non-death penalty cases. I don’t believe that there’s any case that so holds and I suggest to you that this is not a case that you should so hold.

Boehm: Well it gives us some hard evidence as to the prospect that this might really have made a difference in the result, that you don’t normally have.

Lafuse: I don’t think there’s any evidence in the record to that effect and I’m… I would not… well there may be some… I’m… I’m not sure that that’s a proper basis for this court to review this claim…

The judges ended up deciding against Lafuse, holding that Zolo’s death penalty should indeed be reversed (or “vacated”).

In 2005 Zolo’s attorneys went to the Allen County Superior Court, arguing that the State should not be allowed to seek the death over twenty years after the fact, after having had such a sentence reversed twice already. Judge Steve David agreed, and issued an order barring the State from seeking the death penalty.

The legal logic behind this decision is pretty straight-forward. In a sentencing hearing the key questions have to do with “aggravation” and “mitigation.” In this case one part of the State’s “aggravation” evidence is simply that the victim was a cop – it’s clear-cut and just as objectively true today as it was twenty years ago and as it will be a hundred years from now. The further “aggravating” factor is evidence that was presented at Zolo’s 1981 trial which was thought to show that Zolo had shot the cop in a particularly nasty way.

This is important. You see, the State used a make believe horror-movie scenario to secure its death penalty, claiming that Zolo (who was not even arrested at the scene, and who the GSR test showed had not even fired a gun) went over to where the police officer lay wounded on the ground, and shot him in the head execution style. For no reason, we would assume, except pure barbaric sadism. (Which is what tv teaches us white folks to expect from Black people, of course.)

The two eyewitnesses and two scientific witnesses to this “fact” are now all dead. The scientific witnesses who provided the “science” regarding the execution shot did so based on very shaky logic (Deutsch calls it “junk science”), but they obviously cannot be cross-examined today. Likewise, the eyewitnesses actually contradicted each other, but they can’t be cross-examined either.

Nor could they use videotapes or transcripts of these witnesses being cross-examined before they died… because wouldn’t you know it, Zolo’s first legal aid “defense” attorney never even bothered to question anyone about these inconsistencies!

Not only can the defense not cross examine the prosecution’s dubious witnesses, but it is severely hampered in its ability to present mitigation evidence. That is because so many of the people who were closest to Zolo at the time of his conviction, who could most powerfully speak to his character and accomplishments, are dead now. His mother, his aunt, co-workers, even his family doctor have all passed away.

(Need it be mentioned that in Zolo’s first two trials no mitigation evidence was ever entered by his inept court-appointed lawyer?)

So on “both sides” many important witnesses are dead, but because of the rigged nature of Zolo’s first trial all of the weight from this superficially “equal” disadvantage is on him.

As judge Dickson would later admit:

it seems to me that as we look at who is going to be effected by the absence of live evidence, is it going to be the defense or the State, it seems to be the argument can be made that it’s going to be more borne by the defense than by the State because the State really has no burden of proof as to the weighing issue, because the statute really puts that burden on the defense.

Or, to quote judge Rucker:

Both eyewitnesses to the alleged offense are now, to the fatal shooting, the shooting at close range, are dead. Other critical witnesses to establish the defendant’s role in the crime are dead. Relevant evidence has been destroyed. Mitigation witnesses necessary to explain the defendant’s character etcetera are dead. Those are factual findings that the trial court made.

(The Supreme Court judges’ comments were made in the June 2006 hearing to appeal David’s order… see below…)

Finally, there is a real danger that a jury will look at the fact that Zolo has been in prison for over twenty years without any negative incidents, and go “Oh my god, if we don’t give him death he’ll be out on good behaviour!”… in other words, what should be evidence in Zolo’s favour (“good behaviour”) is actually very likely to play against him.

Judge David’s decision, while it was certainly a victory for Zolo, speaks volumes to the kind of morally bankrupt system that prevails in America.

You see, David is a supporter of the death penalty, and his ruling that the State should be barred from trying to kill Zolo at this point is because he fears that doing so would discredit the judicial death-machine. In his ruling he stated that “the interest of the public” weighs against the death penalty, not because the death penalty is racist or wrong, but rather because Zolo received such a blatantly unfair trial that to pursue it would undermine “public confidence in the death penalty.”

Covering one’s ass, one might say…

So, to recap: as of 2005 Zolo’s death sentence had been overturned not once but twice. The State had been exposed as having suppressed evidence that would have pointed to Zolo’s innocence. His jury was revealed to have been “accidentally” whitened. A judge who himself supports the death penalty nevertheless issued an order barring the State from seeking it in Zolo’s case, because to do so would risk exposing the US death system for the travesty of justice that it is.

So what the fuck happens next?

Well, no surprise here: the Indiana Deputy Attorney General is appealing judge David’s decision. They say he “abused his discretion” in barring them from seeking a third death sentence.

They want another chance to kill Zolo.

So in June of this year Arthur Thaddeus Perry appeared before the Indiana Supreme Court, the latest in that long list of white men who have lined up “democratically,” “legally,” and most certainly calmly argue that Zolo should executed. (Indeed, to watch these guys talk you’d think they were comparing brands of low-fat yogurt the way they’re so blasé and dispassionate while essentially asking for permission to commit murder.)

You can check out the video of this hearing on the Indiana Courts site, too. It’s largely a recap of what i describe above.

Eyebrow-raiser: Perry had the gall to refer to Richard Moore vs. State to support his argument. This is the case of Dhoruba bin Wahad, another Black radical who the State also tried to sentence to death years after his conviction. Dhoruba unsuccessfully argued that such a sentence passed a full decade after the crime in question constituted cruel and unusual punishment.

What Perry of course did not mention – because it’s really, really telling – is that Dhoruba was never executed, in fact he won his freedom in 1990 after it was revealed that the FBI had suppressed evidence that could have cleared him of his 1971 attempted double-cop murder charge!

You see, Dhoruba – like Zolo – was the victim of a racist frame-up. Like Zolo, the State sought death both as part of its general policy of violently “making an example of” any unlucky Black person and as part of its specific program to neutralize Black radical politics.

For, like Zolo, Dhoruba was singled out because he had radical Black nationalist politics.

What it says about this “model democracy” that the best they can do to excuse one corrupt procedure is to draw on their case law from another… their jurisprudence is truly riddled with the echoes of racist crimes, of America’s five hundred year war against Black people…

Zolo Agona Azania should not be in prison. Period.

He is a revolutionary, a person who at a very young age dedicated his life to making the world a better place. Opposing the vicious oppression that America inflicts on Black people. Standng up against the violence that capitalism inflicts on poor people.

That’s why the State went all out to get him, even though the evidence pointed elsewhere. Evidence that, true to form, the cops and prosecutors had no difficulty in hiding away…

As Dhoruba bin Wahad has said, “If you do not stand up for the freedom and dignity of political prisoners who went to prison and sacrificed their lives for the movement and empowerment of their people then one day you might be a political prisoner and there’ll be no movement to support you.”

Worth remembering… worth acting on…