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Wednesday, June 28, 2006

Ind. Courts - State seeks execution third time

Supplementing Mike Smith's AP story yesterday (see ILB entry here) is the story by Niki Kelly of the Fort Wayne Journal Gazette today headlined "State seeks execution third time: High court hears debate on sentencing for killer." Some quotes:

INDIANAPOLIS – Arguments before the Indiana Supreme Court on Tuesday showed that 25 years have done little to dull the feeling surrounding the 1981 shooting death of Gary police officer George Yaros in a bank robbery gone wrong.

State attorneys asked the five justices to allow them to seek the death penalty against convicted killer Zolo Agona Azania for a third time. * * *

Death penalty opponents also turned out for the case, which has been besieged by errors and procedural missteps leading to Azania’s becoming somewhat of a symbol for the cause.

The issue at hand is whether too much time has passed for Azania to get a fair trial on the penalty phase of the case, which long ago was shipped to Allen County because of pretrial publicity.

He was first convicted in 1982. Since then his death penalty sentence has been overturned twice, but his conviction is still intact. The first reversal resulted from ineffective assistance of counsel and a discovery violation by prosecutors. In 2002 his death sentence was reversed again because of a computer glitch in Allen County’s jury system that systematically excluded many potential black jurors.

After the case was sent back for a third sentencing trial, three Allen County judges recused themselves for various reasons and it landed in the hands of Special Judge Steven H. David, of Boone Circuit Court.

In 2005 he barred prosecutors from seeking the death penalty again.

That would mean the maximum sentence available for murder at the time of the crime was 60 years. With good-time credit – which allows an inmate to serve just half his sentence – Azania could be out in five years.

Arthur Perry – arguing for the attorney general’s office – said the court’s decision could have serious implications because defendants could be encouraged to drag cases on in hopes that enough time will pass to preclude certain procedures.

But Justice Frank Sullivan Jr. asked whether there should be some time limit for the state to get its case right.

“Is it fair to ask someone to go through a penalty phase hearing where the penalty of death is on the line?” Sullivan wondered.

Perry conceded facing the death penalty is “uncomfortable” but said Azania can still present a mitigation defense, even if his attorneys have to use transcripts and depositions from now-dead witnesses.

He said the better procedure is to let the sentencing phase go forward, and if Azania receives the death penalty again he can appeal it for a third time to try to prove he was prohibited by time from presenting a proper defense.

“We’re trying to review in advance, review in a vacuum, what may happen or might happen,” Perry said.

Justice Robert D. Rucker, though, pointed out that those in the system know that “death is different” and has a heightened sense of review.

“Shouldn’t he be given the benefit of the doubt in putting on the mitigation evidence he wants?” Rucker asked.

Azania attorney Michael Deutsch – a Chicago lawyer known for his death penalty work – told the justices about many witnesses who are now unavailable.

For instance, he said two eyewitnesses gave conflicting reports about whether Azania – known as the man in the blue suit – went back and executed the fallen officer or went back, picked up the gun and ran away. Both witnesses are deceased.

Deutsch also said that the coroner and many of Azania’s family members are dead and physical evidence is now missing.

“I cannot cross-examine a dead witness,” he said.

Chief Justice Randall T. Shepard sharply rebuked Deutsch at one point when Shepard was trying to ask a question and the animated Deutsch interrupted.

“Pardon me,” Shepard said, bringing the room to silence. “Never mind. I’ll make up my own answer to the question I was going to ask you.”

Deutsch apologized twice and returned to his case, saying it was not fundamentally fair to put Azania through a third penalty phase when most of the delay in the case was the result of mistakes made by the state.

Posted by Marcia Oddi on June 28, 2006 04:57 PM
Posted to Ind. Sup.Ct. Decisions