ATTORNEY FOR APPELLANT
Jesse A. Cook
Deputy Public Defender
Terre Haute, Indiana
Michael E. Deutsch
Deputy Public Defender
BRIEF OF AMICI CURIAE
Jaykumar A. Menon
New York, New York
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
SUPREME COURT OF INDIANA
ZOLO AGONA AZANIA, )
Appellant (Petitioner Below), )
v. ) Indiana Supreme Court
) Cause No. 02S00-0009-SD-538
STATE OF INDIANA, )
Appellee (Respondent Below). )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Kenneth R. Scheibenberger, Judge
Cause No. 02D04-8109-CF-401
ON APPEAL FROM THE DENIAL OF SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF
November 22, 2002
Zolo Agona Azania, formerly known as Rufus Averhart, was convicted of murder and
sentenced to death. In this appeal from the denial of his second
petition for post-conviction relief, Azania argues that his death sentence must be vacated
because the jury that recommended imposition of the death penalty was the product
of a system for jury pool selection that systematically and materially reduced participation
of African-American jurors.
In an ordinary lawsuit we would not find the irregularities in the Allen
County jury selection process sufficient to require a reversal. The disproportionate reduction
of African-Americans in the jury pool was, as the Chief Justices dissent observes,
the result of a computer glitch, more precisely, a flawed program, not a
hardware defect. But computer failures can have serious consequences, and this is
an example of that. Because of the heightened need for public confidence
in the integrity of a death penalty, we conclude that although the conviction
was proper, the jury pool selection process was fundamentally flawed, and reversal of
the death penalty and a new penalty phase or resentencing is required.
Factual and Procedural Background
Azania was convicted of murder and sentenced to death for the 1981 slaying
of Gary Police Lieutenant George Yaros in the course of a bank robbery.
In 1984, this Court affirmed his conviction and sentence on direct appeal.
Averhart v. State, 470 N.E.2d 666 (Ind. 1984). Azania was denied
post-conviction relief, and in a 1993 appeal from that ruling, this Court affirmed
Azanias conviction but reversed his sentence, citing ineffective assistance of counsel at the
sentencing phase and the failure of the prosecution to provide gunshot residue test
results to the defense. Averhart v. State, 614 N.E.2d 924, 930 (Ind.
After remand for a new penalty phase, Azania unsuccessfully moved to strike the
entire jury pool on the ground that it did not represent a reasonable
cross section of the community. A new jury was impaneled and it
also recommended death. After the trial court again sentenced Azania to death,
this Court affirmed the sentence on direct appeal.
Azania v. State, 730
N.E.2d 646 (Ind. 2000). Azania was then granted leave to file a
successive petition for post-conviction relief on two grounds: newly discovered evidence, and alleged
abnormalities in the Allen County jury pool selection system. Azania v. State,
738 N.E.2d 248 (Ind. 2000). The successive post-conviction court denied relief, and
this appeal followed.
I. Jury Pool Selection
The Statutory Standard
The method by which jury pools are selected in Indiana is governed by
statute. Indiana Code section 33-4-5-2(c) allows jury commissioners to use a computerized
jury selection system, but requires that the system employed must be fair and
may not violate the rights of persons with respect to the impartial and
random selection of prospective jurors. This Court long ago held that the
purpose of the jury selection statute is to ensure that the method used
to select a jury is not arbitrary and does not result in the
systematic exclusion of any group. Shack v. State, 259 Ind. 450, 459-60,
288 N.E.2d 155, 162 (1972). Nevertheless, there is no requirement that any
particular segment of the population be represented on every jury, Daniels v. State,
274 Ind. 29, 35, 408 N.E.2d 1244, 1247 (1980), and completely random selection
of jurors is not required as long as the system used is impartial
and not arbitrary. State ex rel. Burns v. Sharp, 271 Ind. 344,
348, 393 N.E.2d 127, 130 (1979). Minor irregularities will not constitute reversible
error unless there is a showing of substantial prejudice to the accuseds rights
as a result of the irregularities. Porter v. State, 271 Ind. 180,
201, 391 N.E.2d 801, 816 (1979), overruled on other grounds. Despite these
somewhat flexible standards, an accused is entitled to a trial by a jury
selected in substantial compliance with the statute, and if there is a lack
of substantial compliance, the accused need not show actual prejudice. Cross v.
State, 272 Ind. 223, 226, 397 N.E.2d 265, 268 (1979); Wireman v. State,
432 N.E.2d 1343, 1354 (Ind. 1982) (Hunter, J., dissenting); Rogers v. State, 428
N.E.2d 70, 72 (Ind. Ct. App. 1981); Bagnell v. State, 413 N.E.2d 1072,
1075 (Ind. Ct. App. 1980).
Allen Countys System of Pool Selection
The computerized system used to select the jury pool for Azanias 1996 sentencing
recommendation hearing was designed in 1980. The successive post-conviction court found that
the system had four flaws, the net effect of which was exclusion of
a number of jury pool members who resided in Wayne Township from the
possibility of being called to serve. Specifically, in 1996, when Azanias penalty
phase was retried, these problems excluded 4364 of 5013, or 87%, of Wayne
Township voters from jury service. In that year, the countywide jury pool
Overview of the Problem
The problem in Allen Countys jury selection procedures may be readily stated in
broad overview. The number of jurors needed for 1996 was first identified
as 14,000. The program then selected 14,364 registered voters to be assigned
a random number. Only persons assigned a number could be drawn for
a panel. The assignment stopped after 10,000 voters had received numbers.
Because the program worked through the voter list by township in alphabetical order,
all of the excluded 4364 registered voters were Wayne Township residents. As
a result, 87% of Wayne Township was excluded. This had a materially
disproportionate effect on African-Americans because African-Americans comprised 8.5% of the total population of
Allen County, and three fourths of that 8.5% resided in Wayne Township.
The remainder of this Part I:B explains the details of how this occurred.
Its legal implications are addressed in Part C.
The first problem resulted from a truncation feature embedded in the program since
1980. The program would first read the registered voter list and determine
the total number of registered voters in the county and in each township.
The program would then determine the percentage of all Allen County registered
voters who resided in each township. Before each calendar year, the court
administrator determined the desired number of jurors required for all Allen County courts
for the entire year. Based upon the requested size of this master
pool, the program then determined the number of jurors it needed to select
from each township to ensure proportional representation of that township in the master
pool. The total voter list for the township was then to be
divided into that number of selection groups by dividing the total number of
registered voters in the township by the number of jurors needed from the
township. One juror was then to be chosen from each group.
This division rarely produced an integer (e.g., 21). In almost all cases,
it produced a real number (e.g., 21.2439). The program then truncated this
real number by eliminating everything after the decimal point and converting the real
number (21.2439) into an integer (21). The program then used the integer,
rather than the real number, to select groups, identifying the first 21 as
group 1, then 22 through 42 as group 2, etc. By using
the truncated integer, which was a fraction smaller than the real number, rather
than rounding to the nearest integer, the program produced roughly 5% more groups
than the requested size of the master pool. A random number was
then used to select one juror from each group, producing a response in
the range of 10,500 names to a request for 10,000 jurors. Thus,
from the outset of the program in 1980, this truncation caused more voters
than were requested to be chosen for assignment of a random number.
3. The Effect of Growth in the Requested Number of Jurors
Regardless of how many names were included on the master jury pool list,
from the outset the program assigned random numbersnecessary for actual selection to serveto
only 10,000 voters. When the list exceeded 10,000 names, the effect of
this was to cut the list off at 10,000. From 1980 to
1994, the court administrator requested annual master jury pools of 10,000 people.
During that period, the approximately 500 excess jurors produced by the truncation feature
were excluded from service, but only those 500 jurors were affected. In
1995, however, the requested number grew to 12,000 jurors, and the truncation feature
added another 693, so 12,693 voters were selected. As a result of
assigning a random number to only 10,000 jurors, 2693 of those jurors could
not be called to serve. In 1996, the year of Azanias resentencing,
the requested jury pool was 14,000, and the truncation feature added 364 names.
As a result of the limitation to 10,000, 4364 of those did
not receive random numbers and could not serve.
The Accident of the Alphabet
Finally, and importantly, the computer organized the county jury pool by townships in
alphabetical order. This placed all Wayne Township jurors at the end of
the list of 14,364. Thus, in each year since 1980 all of
the excluded jury pool members were Wayne Township residents. The effect of
these problems was not unfocused or randomly distributed over the county or over
population groups. According to the 1990 census, African-Americans comprised 18,552 or 8.5%
of the total age 18 and over Allen County population of 217,332.
In addition, 13,937 (75.1%) of these 18,552 African-Americans resided in Wayne Township.
Accordingly, the program excluded 87% of the jury pool members from the township
in which 75.1% of Allen Countys age 18 and over African-Americans resided.
Azania argues that the result of these problems was that in the quarterly
draw from which his jury pool was taken, African-Americanswho in a truly representative
system would have comprised 8.5% of the poolin fact comprised only 4.4% of
the pool. The post-conviction court rejected Azanias calculation as unreliable. The
court ruled that using 1990 census data as a proxy for the racial
composition of the 1996 voter registration listas well as using a mathematical formula
to estimate the number of African-Americans in the quarterly draw from which Azanias
jury was comprisedwas akin to asking the court to make an inference from
an inference, something the court is not allowed to do. The post-conviction
court may be correct that African-American citizens do not necessarily register to vote
in proportion to their population, but Allen County did not maintain racial information
about the voter list and we have nothing to go by except the
census. Both the United States Supreme Court and the lower federal courts
have repeatedly upheld the use of census figures in constitutional assaults on jury
See Duren v. Missouri, 439 U.S. 357, 365 (1979) (upholding
the use of six-year-old census data in fair cross-section challenge); Alexander v. Louisiana,
405 U.S. 625, 627 (1972) (upholding the use of six-year-old census data in
equal protection challenge); Davis v. Warden, 867 F.2d 1003, 1014 (7th Cir. 1989);
United States v. Osorio, 801 F. Supp. 966, 977-78 (D.Conn. 1992). We
agree with the courts that have concluded that under these circumstances a defendant
should not be expected to carry a prohibitive burden in proving underrepresentation.
Davis, 867 F.2d at 1014. Similarly, because no statistical data was available
regarding the number of African-Americans in the quarterly draw from which Azanias jury
was comprised, it was appropriate for Azanias expert witness to use a mathematical
formula derived directly from the operation of Allen Countys computerized system to estimate
The Effect of the Elimination of 87% of Wayne Township from
The United States Supreme Court has long held that the selection of a
petit jury from a representative cross section of the community is an essential
component of the Sixth Amendment right to a jury trial. Taylor v.
Louisiana, 419 U.S. 522, 528 (1975). We think our state statute, in
requiring an impartial and random selection demands no less. Although we reach
our holding today under Indiana Code section 33-4-5-2(c) and not under the Sixth
Amendment to the Federal Constitution, we think that the Indiana statute ultimately turns
on an issue very similar to Sixth Amendment analysis: whether the flaws in
a jury selection system are so minor as to be inconsequential or are
material enough that a segment of the population has been materially excluded.
The federal courts have developed two competing tests under the Sixth Amendment to
determine if a jury pool adequately represents the community. Under the absolute
disparity test, the disparity is the difference between the percentage of the distinctive
group eligible for jury duty and the percentage represented in the pool.
In this case, where the percentage of African-Americans eligible for jury duty in
Allen county is 8.5% and the percentage represented in the pool is 4.4%,
this amounts to an absolute disparity of 4.1%. Under the comparative disparity
test, the disparity is calculated by dividing the absolute disparity by the percentage
of the group eligible for jury duty. Here, that results in the
division of 4.1% by 8.5%, for a comparative disparity of 48.2%. Put
differently, as the result of flaws in Allen Countys system, African-Americans as a
group had roughly half the chance of being included on a jury panel
than a truly random system would have produced. Nevertheless, the post-conviction court
concluded that in Azanias case the computerized system impartially and randomly select[ed] citizens
to be jurors, and thus substantially complie[d] with [section 33-4-5-2(c)]. We agree
this may be true for non-death penalty cases, but we do not agree
that the Allen County system in place in 1996 was sufficiently impartial or
random to support a jury recommendation of the death penalty.
As the Supreme Court of the United States held in Powers v. Ohio,
499 U.S. 400, 413 (1991):
The purpose of the jury system is to impress upon the criminal defendant
and the community as a whole that a verdict of conviction or acquittal
is given in accordance with the law by persons who are fair.
The verdict will not be accepted or understood in these terms if the
jury is chosen by unlawful means at the outset.
The Indiana jury selection statute is designed to ensure that the method used
to select a jury is not arbitrary and does not result in the
systematic exclusion of any group. The United States Supreme Court has long
emphasized that the qualitative difference of death from all other punishments requires a
correspondingly greater degree of scrutiny of the capital sentencing determination. California v.
Ramos, 463 U.S. 992, 998-99 (1983). The Supreme Court has also held,
in a death penalty case, that a jurys being chosen from a fair
cross section of the community is critical to public confidence in the fairness
of the criminal justice system, and that the systematic exclusion of identifiable segments
playing major roles in the community cannot be squared with the constitutional concept
of jury trial. Taylor, 419 U.S. at 530. Widespread concern over
the fairness and reliability of death sentences demands that the courts and the
public have no significant doubts as to the integrity and fairness of the
process. These same considerations require heightened sensitivity in a death penalty case
in determining whether a jury selection system is random and impartial as required
by Indiana law.
II. Change of Judge
In this case, Azania properly preserved his right to contest the impartiality of
the computerized system by moving to strike the entire jury pool. As
the court below noted, the systems programming error excluded 4364 peopleroughly one-third of
the jury poolfrom possible service, and reduced by nearly one-half the odds that
an African-American would appear on the jury panel. Every one of the
excluded jury pool members was from Wayne Township, the township in which three-fourths
of Allen Countys African-Americans over age 18 resided. The net result was
that the flaws inherent in the selection system materially reduced the probability that
African-Americans would serve on Azanias penalty phase jury. Accordingly, the system did
not substantially comply with section 33-4-5-2(c), and a new penalty phase is required.
Finally, as the dissent observes, in 1982 Azania requested a transfer of this
case from Lake County, where Officer Yaros was slain. Unlike the dissent,
we do not consider that to be relevant here. Azania exercised his
right under generally applicable procedures to seek a transfer to another county.
In so electing, he did not forfeit his right to a properly selected
jury in the new county, whatever its demographic composition.
Prior to his second post-conviction hearing, Azania twice unsuccessfully moved for a change
of judge pursuant to Indiana Post-Conviction Rule 1(4)(b). Azania alleged bias on
the part of the trial judge, who as a member of the Allen
Superior Court Board of Judges had some oversight responsibility for the computerized jury
selection system. Rule 1(4)(b) mandates a change of judge when the historical
facts recited in the affidavit filed in support of the motion, if taken
as true, support a rational inference of bias or prejudice. This Court
will presume that a judge is not biased against a party. Lambert
v. State, 743 N.E.2d 719, 728 (Ind. 2001). This Court recently held
that denial of a motion for change of judge under Criminal Rule 12
is reviewed under a clearly erroneous standard. Sturgeon v. State, 719 N.E.2d
1173, 1182 (Ind. 1999). We think the same standard applies to post-conviction
court motions under Rule 1(4)(b). Both rules call for a change of
judge if the affidavits support a rational inference of bias or prejudice.
The pertinent historical facts recited in Azanias affidavits in support of his motions
for a change of judge were that (1) the trial judge was personally
involved in the investigation of the computer problems and, if not serving as
judge, might be called as a witness in the case, (2) because of
the destruction of some of the jury selection evidence, the court would be
called upon to assess the credibility of some Allen County court employees and
judicial officers, and (3) after the judge became aware of the problems, he
did not notify Azania of any problems with the computer system, even though
the judge had recently presided over Azanias sentencing hearing with a jury selected
by the same system. Our holding in Part I of this opinion
renders moot Azanias first two historical facts. As to the remaining one,
we do not believe the trial judges failure to notify Azania of problems
with the computer system raises a rational inference of bias against Azania.
Azania points to no authority requiringor even suggestingsuch a notification by a trial
judge to a defendant in a closed matter. Nor are we aware
of any. The trial courts denial of Azanias motions for a change
of judge was not clearly erroneous.
III. Allegedly False Testimony
At Azanias 1982 trial, James McGrew identified Azania as the man McGrew saw
place a pistol and jacket in some bushes not far from the scene
of the robbery. McGrew also testified that when a police officer pursuing
Azania approached McGrew, McGrew told the officer, I believe that the guy youre
looking for is over there, and pointed in the direction Azania had gone.
McGrew testified that when the officer returned about a minute later, with
Azania now face down in the back of a patrol car, McGrew positively
identified Azania as the man who placed the objects in the bushes.
In a 1995 deposition in preparation for Azanias penalty phase retrial, McGrew recanted
his earlier testimony and identification. In a 2001 videotaped deposition prepared for
Azanias successive post-conviction proceeding, McGrew claimed that he had never been able to
identify Azania as the man he saw place the objects in the bushes,
and that he told this to police and prosecutors, but that they pressured
him to make the identification at trial anyway. McGrew claimed that when
he was interviewed at the Gary police station, he saw a photograph of
Azania and Azanias name on a bulletin board behind the officer who interviewed
him, and that the officer pointed to the picture and told McGrew that
Azania had killed a police officer. McGrew also testified that in 1982,
while waiting in a room adjacent to the courtroom and preparing to testify,
an armed man McGrew assumed to be a bailiff pointed Azania out to
McGrew through the rooms doorway. McGrew claimed he felt threatened by the
armed mans action and the trial atmosphere, and was afraid that if he
did not identify Azania his own life would be in jeopardy. McGrew
testified that he could not otherwise have identified Azania, since he never saw
the face of the man who placed the objects in the bushes.
Former Lake County Deputy Prosecutor James McNew, who assisted in the 1982 prosecution
of Azania, testified that he was never aware that McGrew allegedly could not
identify Azania. McNew denied directing anyone to coerce McGrew into identifying Azania,
and testified that he did not consider Azanias identity a problem at trial
in light of the other evidence of Azanias guilt, including security camera photographs
from the bank and clothing evidence. McNew testified that to present a
complete story to the jury, the State would have asked McGrew on direct
examination if he could identify Azania even if the State knew McGrew could
not do so.
Captain Michael Nardini interviewed McGrew the day after the murder in an interview
room at the Gary police station. Nardini testified that McGrew told him
McGrew could identify the man who placed the objects in the bushes.
Nardini also testified that there was no bulletin board in the interview room,
that he did not remember a photograph of Azania being posted anywhere in
the station at the time of the interview, that at the time of
the interview he did not know that Azania was a suspect in the
case, and that he did not tell McGrew that Azania killed a police
Allen County Deputy Sheriff Jerry Fruchey served as a bailiff during Azanias trial
and closely meets McGrews description of the armed man who allegedly pointed Azania
out to McGrew. Fruchey testified that he did not remember ever speaking
with McGrew, did not tell him to identify Azania, did not point out
Azania, and did not in any way threaten McGrew.
The successive post-conviction court considered all this evidence and held that McGrews deposition
testimony was not credible and accordingly did not satisfy the nine-prong test for
newly discovered evidence mandating a new trial. See Carter v. State, 738
N.E.2d 665, 671 (Ind. 2000). Substantial evidence contradicts McGrews recantation of his
trial identification. First, as is true of all recanted testimony, McGrews 1982
trial testimony directly contradicts his current claims. Second, his current claims contradict
his statements to police at the time of Azanias apprehension and to Nardini
the next day. Third, his claim that he was intimidated by an
armed man is contradicted by Fruchey. This issue turns on credibility of
witnesses. The successive post-conviction court viewed McGrew and the other post-conviction witnesses
and found that his recantation was not credible. That finding is not
clearly erroneous, and is accordingly affirmed.
The successive post-conviction court erred when it concluded that Allen Countys computerized jury
selection system substantially complied with Indiana Code section 33-4-5-2(c) on the facts of
this case. The court did not err when it denied Azanias motions
for a change of judge and his claim for a new trial based
on the prosecutions use of allegedly false testimony. Accordingly, we vacate Azanias
death sentence and remand to the trial court for new penalty phase hearings,
or, if the prosecution elects not to pursue the death penalty, for sentencing.
SULLIVAN and RUCKER, JJ., concur.
SHEPARD, C.J., dissents with separate opinion, in which DICKSON, J., concurs.
DICKSON, J., dissents, believing that this accidental, inadvertent, and impartial exclusion of jurors
did not undermine Allen Countys essential substantial compliance with the statutory method for
selection of jury pools, and that any error was harmless in light of
the overwhelming evidence of aggravators which have previously led two separate penalty phase
juries to unanimously recommend the death sentence.
SHEPARD, Chief Justice, dissenting.
Zolo Azania and two cohorts burst into the Gary National Bank in broad
daylight with guns drawn. By the time they were ready to depart
with the money, the banks security camera was already recording the robbery and
an alarm had summoned the police.
The trio decided to shoot their way out, and exited the bank with
guns blazing at the uniformed officer who had arrived on the scene.
They ran past the fallen body of Gary Police Lieutenant George Yaros and
headed for the getaway car. Not content merely to take off, Azania
went over to the officer, kicked his gun away, then put yet another
shot into him at close range. After that, the three perpetrators led
police on a chase through the streets of Gary at 80-100 mph, firing
back at the pursuing officers. All of this has been largely settled
fact for more than a generation.
In the meantime, twenty-four jurors and two different trial judges have unanimously agreed
that the States request for the death penalty was a just one.
In the face of this, the judgment of judge and jury is today
set aside on the basis of a computer glitch.
Equally unattractive is Azanias play of the system. He seeks relief on
the grounds that a mathematically perfect computer run would enhance his chance to
have an African-American on the jury. He asserts that having even one
black juror is crucial to his cause. Of course, the reason that
even an ideal, random jury pool might still produce an all-white jury is
that this litigation was transferred, at Azanias request and with his participation, to
a county with a modest minority population. The State filed these charges
in Lake County, where Azania would have had the most diverse jury pool
Indiana has to offer. He asked to get away from that jury
pool, citing reports of his crimes on Chicago television, and he was accommodated.
I would find that the jury was assembled in substantial compliance with the
statute and that any error was harmless. Instead, we will now move
along to a third decade of judicial effort aimed not at assessing whether
Azania is guilty but rather at settling on an appropriate penalty.
DICKSON, J., concurs.
For a detailed account of the robbery and killing, see
State, 470 N.E.2d 666, 673-75 (Ind. 1984).
For example, in a hypothetical county comprised of 1100 registered voters evenly
distributed across the countys 10 townships, the program would first determine that 10%
of the registered voters, or 110 voters, resided in each township. If
the requested size of the master jury pool was 200 jurors, the program
would next determine that 20 jurors (10% of 200) were needed from each
township to ensure proportional representation of that township in the master pool.
As to hypothetical Township A, the program would divide the total number of
registered voters in Township A (110) by the number of jurors needed from
Township A (20), to determine that 5.5 voters should be placed into each
of Township As 20 selection groups. Next, the program would truncate 5.5
to the integer 5, and then take the first 5 voters on the
list and select one, then take the next five voters on the list
and select one, and so on. The result would be that 22
voters from Township A would be included on the list, rather than the
20 required for proportional representation.