Main Arguments in Appeal for
ZOLO AGONA AZANIA E-Mail
Press Statement
Petitioner, Zolo Agona Azania, a writer and artist on Indiana's Death Row, is asking the Indiana Supreme Court to grant him a new trial based upon the admission by former prosecution witness and sole identification witness, James McGrew, that he lied at Mr. Azania's 1982 trial when he identified Zolo Azania as the man he saw hiding evidence in the bushes and running from the police. In addition, we are here to ask the Indiana Supreme Court to order a new sentencing hearing for Mr. Azania because it has now been conclusively established that the all-white jury that sentenced Mr. Azania to death was chosen from a jury pool which systematically excluded 87% of Wayne Township, the largest township, the urban center, and home to 75% of Allen County's voting-age Black population.
THE FALSE TESTIMONY OF JAMES MCGREW
James McGrew, now a college teacher in Illinois, testified via videotape at a post-conviction hearing in Allen County last year that after repeatedly telling prosecutors that he could not identify Zolo Azania as the man fleeing the scene of a bank robbery during which a police officer was killed, he was placed in a small room prior to testifying when a large, red-haired law enforcement officer entered the room, told him to identify Azania, and pointed to him in the courtroom. Mr. McGrew further testified that he never saw the face of the man running from the police and that he identified Mr. Azania in court because of fear for his own safety.
Indeed, Mr. McGrew's hesitation in making the critical identification of Azania in the courtroom was so apparent that it is noted in the trial transcript.
Given the critical nature of James McGrew's identification testimony and the fact that no one identified Mr. Azania in any of the 308 bank camera photographs taken during the robbery, he should be granted a new trial.
THE ALL-WHITE JURY
DRAWN FROM A POOL WHICH EXCLUDED BLACKS
After Zolo's trial lawyers were forced to request a change of venue from Lake County due to the frenzy of false media stories generated by police and prosecutors, his case was transferred to Allen County, a county with a much smaller Black population, where it has remained until this day. Zolo was tried by an all-white jury, and with James McGrew as the only identification witness, he was sentenced to death in 1982. The Indiana Supreme Court reversed Zolo's death sentence in 1993 and ordered a new death penalty trial because of prosecutorial misconduct in withholding expert gun shot residue tests performed by police concluding that Mr. Azania did not fire a weapon and because of gross ineffective assistance of counsel in refusing to put on any of the available mitigation evidence.
The all-white jury that recommended that he be sentenced to death in 1996 was selected from a jury pool that systematically excluded 87% of Wayne Township, home to 75% of Allen County's adult Black population. Before the hearing in Allen County last year, Zolo's lawyers made a series of motions to recuse trial judge Kenneth Scheibenberger and all Allen County judges from presiding over a hearing challenging the county's bad faith administration of its jury selection system. All the motions were denied.
A part-time college student, now an hourly employee at a "head shop" in Fort Wayne, wrote Allen County’s computerized jury selection programs in 1980. No one ever reviewed the computer programs, and the system went into operation in 1981 and continued to be used until the latter part of 1996 when the computerized exclusion of Black people was made public by a county public defender. Despite Allen County's attempt to conceal the longstanding nature of its exclusion of Black people from the jury pool by illegally destroying nearly all evidence of the 15-year-old system, Zolo's legal team was able to obtain a copy of the computer program listings from a low-level programmer who decided to keep a copy for himself.
Analysis of the programs by one of the top computer experts with the Federal Reserve Bank, Brian Reid, revealed a system which served to under represent Wayne Township and Black people by a series of distinct computerized operations. The system inherently selected more than 10,000 jurors as a result of an "overdraw" function, which was specifically programmed to choose significantly more jurors than requested. The system was then designed to select jurors from among the first 10,000 jurors in the pool only, and because the system was designed to place Wayne Township, which comprised 40.8% of Allen County's adult population, at the bottom of the list, it was underrepresented in Allen County juror pools for 15 years. Moreover, Allen County programmed the system to further dilute Wayne Township representation in the jury pool by specifically putting white non-Wayne precincts into Wayne Township.
In 1996, when Zolo was sentenced to death, the under representation was at its height, with 87% of Wayne Township completely excluded, and by any statistical measure, the number of Black people in the jury pool was cut in half. Moreover, when Zolo's trial counsel moved to strike the venire of jurors due to the under representation of Black people, the prosecution called the jury administrator, who testified falsely that the system was operating properly and selecting jurors randomly. Six months after Zolo was sentenced to die and long after the county public defender had begged court administrators and the Chief Judge to figure out why Black people were being underrepresented in every courtroom in the building. Allen County finally checked the system and publicly admitted the under representation. All criminal defendants with pending cases were given the opportunity to postpone their trials until a new system was put in place because, as the Chief of the Board of Judges of the Superior Court testified last year, it would have been "absolutely unfair" for anyone to have proceeded to trial under that jury selection system. Yet no one notified Mr. Azania who was sentenced to die by a jury chosen from the exact same system a few months earlier. Despite all of this, the Attorney General of Indiana maintains that Mr. Azania, who had contemporaneously moved to strike his venire, should be executed.
How could Allen County, where 75% of criminal defendants are estimated to be Black, have utilized such a discriminatory system for 15 years? The record in this case speaks loudly of bad faith and discriminatory intent. The Indiana Supreme Court cannot with integrity accept the testimony of Allen County officials that they "did not intend to discriminate" in the face of this record. The record is completely undisputed that no one in Allen County was in charge of the system, and no one knew who was in charge. The Chief Judge of the Court, with whom the buck must stop, testified that he left the system up to his jury commissioners - both of whom were in their eighties, had not the slightest idea what they were supposed to be doing, one of whom suffered a series of strokes and got mixed up about when and where he was supposed to go for jury draws and another of whom was adjudged mentally incompetent in an Allen County proceeding while he was serving as jury commissioner.
Both the Federal Reserve Bank computer expert, Brian Reid, and a senior Allen County computer analyst testified at Mr. Azania's hearing that Allen County did nothing to ascertain whether or not the system accorded with the law and that any number of computerized features indicated obvious problems with the system's operation and should have been setting off "alarm bells." Expert Reid and expert David Kairys, a nationally recognized expert in jury selection systems, opined that the operational description written into the program listing itself which described the programming methods as a "No-No" and designed so that no one would have to spend too much "time and effort" on an "obsolete" system indicate that Allen County had no concern for the integrity of its jury pool or the right of criminal defendants appearing in its courts.
The Indiana Supreme Court must resoundingly reject the Attorney General effort to minimize what was allowed to happen in Allen County. Allen County made a decision to employ a racially discriminatory system and chose to ignore the racial impact by refusing to maintain racial data and refusing to ascertain whether or not the system was operating in accordance with state and federal law despite challenge being made in court.
In a state that is the historically recognized as the "birthplace of the Klan," the longstanding nature of Allen County's exclusion of Blacks from juries smacks of racism, and the citizens of this state must demand that Mr. Azania be given a new sentencing trial. To execute a man who was never given the opportunity to be tried by "a jury of his peers" offends our basic sense of fairness, justice, and indeed, humanity.
Michael E. Deutsch and Erica Thompson of the People’s Law Office in Chicago and Jessie A. Cook of Terre Haute represent Mr. Azania.
An amicus brief has been filed on Mr. Azania's behalf by the Center for Constitutional Rights, the Indiana Black Legislative Caucus, The Voter Information Center of Fort Wayne, the National Jury Project, the Southern Center for Human Rights, and the United Church of Christ.
Contact the attorneys for petitioner, Zolo Agona Azania
