Justices split on decision to allow a third try for death penalty

Michael W. Hoskins
January 1, 2007
Back to TopCommentsE-mailPrintBookmark and Share
 A split decision by the Indiana Supreme Court today allows the state to seek the death penalty a third time against a man convicted of shooting a Gary police officer in a robbery gone bad in 1981.

The 3-2 decision came late this afternoon with Justices Theodore Boehm and Robert Rucker dissenting in separate opinions. Justice Frank Sullivan authorized the majority's 22-page opinion. The ruling in State of Indiana v. Zolo Agona Azania, No. 02S03-0508-PD-364 (, reverses a trial court decision and orders a new penalty phase.

In 2005, Allen Superior Judge Steve David barred prosecutors from seeking the death penalty for a third time because of the lapse of time and ensuing issues that involve speedy trials, due process, and fundamental fairness arguments.

Azania was first convicted in 1982 of murder for a robbery of the Gary National Bank the year before, which resulted in the shooting death of Lt. George Yaros. Azania and two others were trying to flee the bank - they both received 60-year sentences; Azania's penalty hasn't been that clear-cut. The Indiana Supreme Court has twice overturned his death sentence, although the conviction has withstood the test of time.

During arguments in June, this ruling's author, Justice Sullivan, wondered out load if there was some point in time where it's not fair to go through the penalty phase where death is on the line. Challenges presented in this appeal include old evidence, the death of key witnesses on both sides, and how Azania's mitigation witnesses are no longer alive to testify in person.

In his opinion, Justice Sullivan wrote, "We find that neither the delay nor any prejudice that Azania may suffer from it violates his constitutional rights. The State may continue to seek the death penalty."

However, the dissenting justices pointed out how novel these arguments are and that justices on the Supreme Court of the United States have invited state and lower court judges to consider whether the passage of time alone is sufficient to question execution.

"I recognize that the (SCOTUS) has yet to entertain a Lacky claim despite invitations from Justices Stevens and Breyer to do so," Justice Boehm wrote, referring to Lacky v. Texas, 514 U.S. 1045 (1995). "I therefore cannot conclude that such a claim is established under the Federal Constitution. I do, however, find the reasoning ... to be persuasive and therefore would hold that the Indiana Constitution prevents further pursuit of the death penalty in this case."

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  2. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  3. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  4. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...

  5. Its a valid lawsuit. Since the civil war, States have no rights anyways. Get over it, people! You are all subjects now and merely "citizens of the world" anyways, with human rights and all that. Gov'nor knows that. This is just grandstanding to try and appease the red state troops still smarting over the "Gay rights" shoved down their unwilling throats. Gotta keep them "voting" in the kayfabe elections! After all, since nobody cares about the tens of millions of Mexicans here, what's a few Syrians going to do, anyways? Guess we'll find out! LOL