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

January 1, 2007
 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 (http://www.in.gov/judiciary/opinions/pdf/05100701fsj.pdf), 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."
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