State’s high court bars death penalty in 1981 Gary police killing

By Sara Eaton - The Journal Gazette

May 2005

Lake County prosecutors have been barred from pursuing the death penalty against a man convicted in Allen County of shooting and killing a Gary police officer in 1981, a judge ruled this week.

Zolo Agona Azania, 50, formerly known as Rufus Averhart, was convicted in 1982 of murder in the 1981 slaying of a police officer during a Gary bank robbery. An Allen County jury sentenced him to death twice but the Indiana Supreme Court overturned the sentences while upholding the conviction.

Since the most recent reversal, Azania’s attorneys, Michael Deutsch and Jessie Cook, argued to eliminate the possibility of allowing prosecutors to continue pursuing the death penalty. Deutsch argued during a hearing this year that the 23-year-old case has been delayed by the prosecution, which has violated Azania’s due process rights.

Boone Circuit Court Judge Steven H. David, who was appointed as special judge to oversee the case after all three Allen Superior Court judges recused themselves for various reasons, ruled in favor of Azania. The case was originally transferred to Allen County from Lake County because of pre-trial publicity. Jurors in each trial have been Allen County residents.

The ruling pleased Azania and his attorneys, Cook said. A message to Deutsch was not returned Tuesday.

The Lake County Prosecutors Office, meanwhile, intends to appeal the decision, spokeswoman Diane Poulton said. The office was disappointed in the judge’s ruling, she said.

The three-week penalty phase trial, scheduled for early 2006, will likely be canceled and a standard sentencing date will likely be scheduled. Azania will make his next appearance in Allen Superior Court on May 20, when the attorneys and the judge are expected to discuss how the sentencing will occur.

“In analyzing the period of delay between the defendant’s 1982 conviction and the currently pending penalty proceeding, it is clear from the record that the state bears most of the responsibility for the delay. Although blaming the state is not the appropriate analysis alone, the bottom line is that very little of the overall delay is attributable to the defendant.

“There is merit to the defendant’s argument that given the 23 plus year passage of time the jury will likely conclude that the defendant if not given the death penalty will soon be released from prison … the court must recognize that there is no realistic way to prevent this issue from being in the minds of jurors as they deliberate the case,” the ruling states.

David repeatedly highlighted that his ruling stems from particular circumstances in this case, explaining that he supports the death penalty and doesn’t believe his ruling should decrease the severity of the crime.

David also wrote that if the prosecutors continue with the death penalty, Azania might have difficulty defending himself because some witnesses have died over the years. Defending himself is a constitutional right, and the ruling states that allowing prosecutors to continue with the death penalty could violate Azania’s constitutional rights.

Although David granted the request barring prosecutors from seeking the death penalty, he ruled against several other requests Azania’s attorneys raised, including the dismissal of the entire case.

Azania is one of three men convicted of shooting Gary police officer George Yaros during a 1981 bank robbery. Allen County jurors first recommended the death penalty in 1982, and Allen Superior Judge Al Moellering sentenced Azania to die the first time.

Azania appealed, and the Indiana Supreme Court, citing ineffective counsel, sent the case back to Allen County in 1996 for a new sentencing hearing. Azania was again sentenced to death, this time by Allen Superior Judge Kenneth Scheibenberger. But the high court ruled in 2001 that Azania could challenge his sentence after he objected to his jury pool. Azania’s attorneys argued the jury pool did not accurately represent the community.

A computer program excluded Wayne Township registered voters from Allen County jury pools between 1981 and 1996, Azania’s lawyers said. The glitch resulted in a pool of 189 people – with only five blacks – for Azania’s case. Azania is black.

Scheibenberger ruled in April 2001 that Azania’s lawyers failed to prove any intentional discrimination or systematic exclusion of black jurors from Allen County’s jury pool and that the exclusion was caused by a computer flaw that was immediately remedied upon discovery.

Indiana Supreme Court Justices Robert Rucker, Frank Sullivan Jr. and Theodore R. Boehm ordered a new penalty hearing but kept Azania’s conviction intact. Justices Brent Dickson and Randall T. Shepard dissented.

Still no justice after 23 years

Indianapolis Star

February 19, 2005

Zolo Azania's death penalty case has been languishing in Indiana courts for more than 23 years. Although death sentences are rarely carried out quickly in Indiana, the Azania case has been delayed largely because of mistakes made by the state.

Azania, formerly Rufus Averhart, was convicted in a 1981 fatal shooting of a Gary police officer. He was sentenced to death in April 1982 in Allen County, where the trial had been moved because of pre-trial publicity.

But the sentence was flawed from the start.

In May 1993, the Indiana Supreme Court let stand the conviction but threw out the death sentence. The court found that the state had failed to share gunshot residue reports with the defense and Azania had received poor legal representation at sentencing.

The case was returned to Allen County, where Azania received the death penalty again in 1996. The sentence was overturned a second time, however, in November 2002. The Supreme Court cited a defective jury selection process that had systematically excluded blacks. Azania is black.

More than two years later, the case remains unresolved. It is now back in Allen County for a third sentencing trial.

Three consecutive Fort Wayne judges assigned to the case and an assistant prosecutor from Lake County have stepped aside, causing lengthy delays. Two of the judges were disqualified for conflicts of interest and the other left the bench to enter an alcohol rehabilitation center.

An assistant prosecutor begged off the case in June 2004, claiming she couldn't keep up with the court's orders to comply with discovery. It isn't difficult to see why she reached that conclusion. The case is more than two decades old and all of the key witnesses have died.

Almost a year ago, the case was assigned to Boone County Judge Steve David, who has rightly expressed concern about the delays. He also should question why prosecutors oppose holding the trial in Lake County, where the crime was committed. And why the state continues to pursue the death penalty in a case that should've been resolved years ago.

"Meter still ticking in capital case"

Indianapolis Star

January 27, 2004

For eight months, the state has failed to find a judge to preside over the penalty phase of a 22-year-old murder case.In the interests of justice, the Zolo Azania case should be moved from Allen County, where three judges have disqualified themselves since October. Two cited conflicts of interest and the other a behavioral problem. The latest phase of the case has cost taxpayers more than $100,000 in legal bills, with the tab still running.

Allen Superior Judge Kenneth Scheibenberger removed himself Oct. 27 after the defense challenged his fitness to preside. He had checked into a Chicago alcohol rehabilitation center for two months last summer. Azania twice was sentenced to death in Scheibenberger's court for the 1981 slaying of Gary Police Lt. George Yaros, but both sentences were overturned. Azania wants the case returned to Lake County, where it was initially removed because of pre-trial publicity. The Indiana Supreme Court is expected to decide as soon as this week where it should be heard.

In stepping aside, Scheibenberger told the Indiana Supreme Court that no Allen County judge could take the case, but the state high court sent it back to Allen Superior Court Administrative Judge Fran Gull, who assigned it to Judge John F. Surbeck. There were problems with his involvement, too. Surbeck had been a defense consultant in the case before becoming a judge and had been prepared to take the stand as an expert witness during post-conviction proceedings. He was also in charge of the county's jury selection process in 1996, when the system was thrown out for systematically excluding blacks from jury pools. Azania is black. Surbeck withdrew last month.

The case went back to Judge Gull, who recused herself earlier this month because she had been an Allen County deputy prosecutor during Azania's 1996 sentencing trial. This case has effectively been without a judge since June. It makes sense to choose a from Lake County, considering the proximity of witnesses and the evidence. Sadly, with Indiana facing nearly a $1 billion deficit, taxpayers continue footing the bill in a case that should have been resolved long ago.

 

"2nd judge steps down from death penalty case"

Fort Wayne Journal-Gazette

December 31, 2003

In Fort Wayne, a 2nd judge has stepped down from a death penalty case involving a man accused of killing a Gary police officer. Allen Superior Judge John F. Surbeck Jr. recently issued an order recusing himself from overseeing a February penalty hearing for Zolo Azania. 

Surbeck's order said he had worked several years ago with attorneys seeking post-conviction relief in several capital cases, including one who represented Azania. Though Surbeck does not recall his involvement in the case, it would be improper for him to preside over Azania's resentencing, according to the order. Defense attorney Michael Deutsch of Chicago requested the change of judge.

Surbeck was appointed to oversee the case after Allen Superior Judge Kenneth Scheibenberger withdrew in October in response to defense claims that Scheibenberge was impaired because he was an alcoholic. Scheibenberger, 54, checked himself into an alcohol rehabilitation program at Rush-Presbyterian Hospital in Chicago in July.

Administrative Judge Fran Gull will decide on another judge to oversee the case, which was originally tried in Fort Wayne because of pretrial publicity in Lake County. Azania, formerly known as Rufus Averhart, twice has been sentenced to death for the 1981 killing of a Gary police officer. Both sentences were later overturned.

 

"Death penalty case for Azania will not leave Allen County: Hearing is set for Tuesday to decide which county judge will preside over penalty hearing for Zolo Azania"

Fort Wayne News-Sentinel

December 18, 2003

The case of a man twice sentenced to death for killing a Gary police officer more than 22 years ago will apparently stay in Allen County after all. Allen Superior Judge Kenneth Scheibenberger removed himself from the case of Zolo Agona Azania, formerly known as Rufus Averhart, in October. The Indiana Supreme Court had vacated Azania's death sentence in November 2002, and sent back the case to Scheibenberger's court for a new death penalty hearing.

At the time, Scheibenberger pointed out local court rules prohibited the case being assigned to any of the county's other judges with jurisdiction over felony matters - John Surbeck and Fran Gull of Superior Court or Thomas Felts of Circuit Court. The Supreme Court chose to disregard the rule, however, and named Surbeck to preside over the matter.

Surbeck, who testified in Azania's post-conviction relief hearing after Azania was 1st convicted in 1982, has set a daylong hearing on the matter for Tuesday.

Azania was 1 of 3 men who held up the Gary National Bank on Aug. 11, 1981. They shot Gary Police Officer George Yaros as he arrived at the scene. As the men fled to their car, Azania stopped and shot Yaros again at close range with a .44-caliber handgun.

The case was sent to Allen because of heavy pre-trial publicity in Lake County, and the three men were convicted of murder. Prosecutors sought the death penalty against all 3, but the jury recommended it only for Azania. Former Allen Superior Judge Alfred Moellering sentenced Azania to death in May 1982. While it upheld the conviction, the state Supreme Court overturned Azania's death penalty in 1993. The court sent back the case to Superior Court, saying Azania had been represented by ineffective counsel at trial.

By then, Scheibenberger had succeeded Moellering and assumed the case. Another trial was held on imposing the death penalty, and in March 1996 a second jury recommended death and Scheibenberger imposed the sentence.

Azania, who is black, appealed the sentence and maintained a faulty computer program selected a jury that underrepresented Allen County's black population. The Supreme Court agreed, and again vacated the sentence and sent back the matter to Allen County.

Azania's attorneys lost later efforts to have the case sent back to Lake County and to have Scheibenberger replaced as the presiding judge. Scheibenberger then recused himself, saying it appeared Azania's lawyers "intend to use any means necessary to remove this judge from this matter, including unfounded personal attacks on his character and fitness."

Scheibenberger said he has no bias or prejudice against Azania, but said he believed "in the best interests of justice, reluctantly, this court should recuse itself in this matter."

 

Third chance to try for a fair sentence

Indianapolis Star

November 19, 2003

Allen Superior Court Judge Kenneth Scheibenberger was right to remove himself from the Zolo Azania death penalty case. Scheibenberger had lost the ability to preside effectively. The Fort Wayne Superior Court judge recused himself last month from presiding over Azania's third death penalty sentencing trial. But it's troubling that the judge withdrew only after pressure mounted over his bout with alcohol abuse.

In July, Scheibenberger underwent alcohol abuse treatment for a month in Chicago under the threat of disciplinary action concerning his behavior at a Fort Wayne bar in June. When a woman at the bar lifted her shirt, Scheibenberger "encouraged her by offering her a dollar," he told The Journal Gazette of Fort Wayne. Although he apologized, Scheibenberger's Superior Court colleagues strongly encouraged him to seek treatment for his alcohol problem or face disciplinary action from the Indiana Commission on Judicial Qualifications.

Azania, who's African American, was twice sentenced to death in Scheibenberger's court. Both juries were without any blacks. Azania, formerly Rufus Averhart, was convicted of the 1981 killing of a Gary police officer.

In 1983, the Indiana Supreme Court upheld the conviction but overturned the death sentence, citing ineffective counsel and evidence withheld from the defense. At the second re-sentencing trial in 1996, Azania argued that the jury selection system was inherently flawed because black voters were excluded from jury pools. But Scheibenberger again sentenced him to death.

The state Supreme Court, however, reversed his death penalty for a second time last year, ruling that Allen County's jury selection process was unfair because it systematically excluded blacks. The case was sent back to Scheibenberger's court for a third sentencing trial, which was pending when the judge stepped aside. He had refused a defense request to send the case back to Lake County. The trial was originally moved from there because of pre-trial publicity, but that is no longer a
factor.

The Supreme Court must now appoint a special judge to preside over the sentencing phase. It's the perfect opportunity for the court to send the case back to the county where the crime was committed.

Death penalty judge called impaired

Indianapolis Star

October 29, 2003

In Fort Wayne, a judge removed himself from a death penalty case after a defense attorney claimed the judge was impaired because he was an alcoholic. In an order issued Monday, Allen Superior Judge Kenneth Scheibenberger called the concerns expressed by Zolo Azania's attorney "unfounded" and said that he "reluctantly" stepped down from the case "in the best interest of justice."

Azania, formerly known as Rufus Averhart, twice has been sentenced to death for the 1981 killing of a Gary police officer. Both sentences were later overturned. Sheibenberger, who was appointed special judge in the case because of pretrial news coverage, was set to oversee Azania's 3rd penalty hearing in February.

Scheibenberger, 54, checked himself into an alcohol rehabilitation program at Rush-Presbyterian Hospital in Chicago in July. Chicago attorney Michael Deutsch filed motions last month in Allen Superior Court questioning Scheibenberger's ability to preside over the hearing and requesting that the Indiana Supreme Court assign another judge to the case.

After Scheibenberger denied the motions, Deutsch filed another one in which he alleged that the judge's initial denial called into question his impartiality. Scheibenberger wrote in his order Monday that he denied the previous request because it did not meet legal criteria and lacked sufficient facts to support the contention that he was biased. The judge wrote that he was successfully discharged from rehabilitation and is receiving continuing treatment.

"It appears from their actions that counsel for the defendant intend to use any means necessary to remove this judge from this matter, including unfounded personal attacks on his character and fitness," Scheibenberger wrote.

Indiana Court Overturns Death Sentence

Associated Press

November 23, 2002

The state Supreme Court overturned the death sentence of a man convicted of killing a police officer, finding that a computer glitch resulted in no blacks serving on the jury that sentenced him to death. In its 3-2 ruling, the court said Friday that "the jury pool selection process was fundamentally flawed" when Rufus Averhart, who is black, was sentenced to death in 1996.

Averhart's death sentence had been thrown out once before, when the state Supreme Court determined in 1993 that he had had ineffective counsel. He was sentenced to death again, but Allen County officials said a computer glitch caused many Wayne Township voters to be omitted from lists of potential jurors. The township, which encompasses south-central Fort Wayne, is home to more than 70 percent of Allen County's black population. The jury that recommended the second death sentence had 11 whites and one Hispanic.

The court's ruling Friday means more hearings will be needed to determine Averhart's sentence for the 1981 murder of Gary Police Lt. George Yaros, who was shot behind a Gary National Bank branch after a robbery. Averhart, who was with two other men, fatally shot Yaros at close range after the officer collapsed from another gunshot wound. Prosecutor Bernard Carter has not said whether officials will seek the death penalty again. Averhart, 47, changed his name to Zolo Agona Azania after entering prison.

Court overturns death sentence of man who shot officer

Associated Press

November 25, 2002

The Indiana Supreme Court has overturned the death sentence of a black man convicted of killing a Gary policeman, finding that a computer glitch resulted in no blacks serving on the jury that sentenced him to death. In its 3-2 ruling, the court said Friday that "the jury pool selection process was fundamentally flawed" when Rufus Averhart was sentenced to death in 1996.

This the 2nd death sentence that has been overturned for Averhart, who changed his name to Zolo Agona Azania after entering prison. The court's ruling means more hearings will be needed to determine Azania's sentence for the 1981 murder of Gary Police Lt. George Yaros. Lake County prosecutor Bernard Carter will decide whether the death penalty again will be sought, according to a statement released by the Indiana attorney general's office.

On Aug. 11, 1981, Azania, 2 companions and Yaros became embroiled in a shootout behind a Gary National Bank branch after a robbery. Azania fatally shot Yaros at close range after the officer collapsed from another gunshot wound. Azania, 47, was sentenced to death in 1982, but that sentence was overturned, only to be imposed again in 1996 by another jury.

Yaros' wife, Ann, 77, told the Post-Tribune of Merrillville that she is upset with the ruling. "It's been 21 years, you'd think it'd be over with by now," she said. "Why should it take so blasted long? He's had 21 years my husband didn't have." The state Supreme Court threw out Azania's first death sentence in 1993, citing ineffective counsel.

A new penalty phase was held in 1996 in Allen County, where the original trial had been held because of pre-trial media coverage. The new jury again recommended the death penalty and the judge sentenced Azania to die by lethal injection. But last year the high court ruled that Azania could challenge his second death sentence based on the computer error.

Allen County officials said a computer glitch discovered in late 1996 caused many Wayne Township voters to be omitted from lists of potential jurors. The township, which encompasses south-central Fort Wayne, is home to more than 70 % of Allen County's black population. The jury that recommended the second death sentence included no blacks and was composed of 11 whites and one Hispanic. After learning of the glitch, Azania's attorney, Michael Deutsch, sought to overturn the conviction and the sentence, citing a jury pool that did not reflect a  cross-section of the community.

Indiana Supreme Court Justices Robert Rucker, Frank Sullivan Jr. and Theodore R. Boehm ordered a new penalty hearing, but kept Azania's conviction intact. Justices Brent Dickson of Hobart and Randall T. Shepard dissented. Deutsch said he'd like to see the new sentencing take place in Lake County. "A jury chosen from Lake County is probably the fairest place for this to be played," he said.

 

Right to be judged by jury of his peers

Indianapolis Star

December 6, 2002

The Indiana Supreme Court has correctly reversed an Allen County death penalty sentence that was fundamentally flawed from the outset. As a result of the court's ruling, Zolo Azania will be re-sentenced for the 1981 killing of a police officer during a bank robbery in Gary. Azania, who is black, deserved to be sentenced by a jury drawn from a pool with a diverse racial makeup, reflecting a jury of his peers. A pool that excludes half of the blacks eligible to participate does not meet that threshold.

This is the 2nd time that Azania's death sentence, imposed twice by juries without blacks, has been thrown out. In 1993, the Indiana Supreme Court upheld his conviction but overturned his death sentence, primarily due to ineffective counsel and ballistics evidence that was not shared with the defense. At the second re-sentencing trial in 1996, Azania protested that neither jury pool represented a reasonable cross-section of Fort Wayne's community and asked that the jury be selected under a more inclusive system, which the trial court denied. He was again sentenced to death.

The latest ruling by the Indiana Supreme Court cited state law requiring that county jury selections "must be fair and may not violate the rights of persons with respect to the impartial and random selection of prospective jurors."

Allen County's system operated unfairly for more than 16 years beginning in 1980. The computer program used to identify prospective jurors from voter registration lists systematically excluded voters after it identified the total number needed for that year's jury pool. Since the system made cutoffs alphabetically, a majority of voters in Wayne Township, where 75 % of African Americans lived, always got left off the jury list.

Though there was no proof of deliberate discrimination, Allen County officials deserve blame for not making an attempt to correct the problem when it was brought to their attention by Azania's lawyers and others. Lake County, where the case originated, must now decide whether or not it's worth the considerable cost to pursue the death penalty a 3rd time against Azania.

This much is clear: The preventable mistakes made to date by the justice system have taken a toll -- financially on Indiana taxpayers and emotionally on the police officers and family members of the victim forced to re-live this case.

"Death appeal draws support: Allen glitch kept blacks off jury, defense says"

By Laura Emerson - The Journal Gazette