ILNews

High court clarifies sentencing requirement

Jennifer Nelson
January 1, 2007
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The Indiana Supreme Court ruled today that a defendant who was sentenced to death in 1982 cannot receive life without parole during his second re-sentencing hearing despite being re-sentenced under the post-2002 death penalty statute.

In State of Indiana v. Zolo Agona Azania, 02S03-0505-PD-364, Azania killed a Gary police lieutenant in 1981 and was sentenced to death in 1982. He was re-sentenced to death in 1996. His conviction stands, but his death sentence has been overturned twice. In the instant case, the state petitioned the Supreme Court to rehear its decision reversing a trial court order prohibiting the state from seeking the death penalty for the third time.

The state is asking for clarification of which version of Indiana's death penalty statute applies to the new sentencing phase. The state wants to sentence Azania under the current version of the death penalty statute - issued in 2002 - that in addition to adding the option of life without parole for murders committed after June 30, 1993, when a trial court judge receives a sentencing recommendation from the jury, the judge is to sentence the defendant "accordingly." Under the most recent statute, juries can sentence the defendant to life without parole, the death penalty, or a term of years in prison.

Life without parole is not an option for a jury to choose in Azania's resentencing because he was convicted of murder in 1982, before that was an option for juries. Azania's new sentencing hearing is to be conducted pursuant to the current, post-2002 death penalty statute. Under the 2002 statute, the trial judge will be bound by the jury's sentencing recommendation as opposed to just taking it in into consideration when sentencing. Whatever the jury decides, as long as the sentence is not illegal, the judge must impose, wrote Justice Frank Sullivan.

In a separate opinion, Justice Robert Rucker dissented in part, saying he believes if Azania is going to be sentenced under the 2002 statute, then life without parole must be a sentencing option.
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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