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

Michael W. Hoskins
January 1, 2007
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 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."

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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. 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.