ILNews

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 (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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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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