Azania v. State

ATTORNEY FOR APPELLANT

Jesse A. Cook
Deputy Public Defender
Terre Haute, Indiana

Michael E. Deutsch
Deputy Public Defender
Chicago, Illinois

BRIEF OF AMICI CURIAE

William Goodman
Jaykumar A. Menon
New York, New York

Monica Foster
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Steve Carter
Attorney General of Indiana

Christopher L. Lafuse
Deputy Attorney General
Indianapolis, Indiana

__________________________________________________________________

IN THE

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

BOEHM, Justice.
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 Justice’s 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.[1] 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 Azania’s 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. 1993).
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

A. 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
accused’s 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).
B. Allen County’s System of Pool Selection
The computerized system used to select the jury pool for Azania’s 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 Azania’s 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 was 14,364.
1. Overview of the Problem
The problem in Allen County’s 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.
2. Truncation
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.[2]
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 numbers—necessary for
actual selection to serve—to 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 Azania’s 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.
4. 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 County’s
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-Americans—who in
a truly representative system would have comprised 8.5% of the pool—in fact
comprised only 4.4% of the pool. The post-conviction court rejected
Azania’s calculation as unreliable. The court ruled that using 1990 census
data “as a proxy for the racial composition of the 1996 voter registration
list”—as well as using a mathematical formula to estimate the number of
African-Americans in the quarterly draw from which Azania’s jury was
comprised—was 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 selection procedures. 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 Azania’s jury was comprised, it was
appropriate for Azania’s expert witness to use a mathematical formula
derived directly from the operation of Allen County’s computerized system
to estimate that number.
C. The Effect of the Elimination of 87% of Wayne Township from Jury
Service
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 County’s 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 Azania’s 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 jury’s 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.
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 system’s programming error excluded
4364 people—roughly one-third of the jury pool—from 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 County’s
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 Azania’s 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.

II. Change of Judge

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 Azania’s 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 Azania’s
sentencing hearing with a jury selected by the same system. Our holding in
Part I of this opinion renders moot Azania’s first two historical facts.
As to the remaining one, we do not believe the trial judge’s failure to
notify Azania of problems with the computer system raises a rational
inference of bias against Azania. Azania points to no authority
requiring—or even suggesting—such a notification by a trial judge to a
defendant in a closed matter. Nor are we aware of any. The trial court’s
denial of Azania’s motions for a change of judge was not clearly erroneous.
III. Allegedly False Testimony
At Azania’s 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
you’re 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 Azania’s penalty phase
retrial, McGrew recanted his earlier testimony and identification. In a
2001 videotaped deposition prepared for Azania’s 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
Azania’s 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
room’s doorway. McGrew claimed he felt threatened by the armed man’s
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 Azania’s identity a problem at trial in light of the other
evidence of Azania’s 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 officer.
Allen County Deputy Sheriff Jerry Fruchey served as a bailiff during
Azania’s trial and closely meets McGrew’s 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 McGrew’s 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 McGrew’s recantation of his trial
identification. First, as is true of all recanted testimony, McGrew’s 1982
trial testimony directly contradicts his current claims. Second, his
current claims contradict his statements to police at the time of Azania’s
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.
Conclusion
The successive post-conviction court erred when it concluded that
Allen County’s 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 Azania’s motions for a change of judge and his
claim for a new trial based on the prosecution’s use of allegedly false
testimony. Accordingly, we vacate Azania’s 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 County’s
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 bank’s 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 State’s 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 Azania’s 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 Azania’s 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.
-----------------------
[1] For a detailed account of the robbery and killing, see Averhart v.
State, 470 N.E.2d 666, 673-75 (Ind. 1984).
[2] For example, in a hypothetical county comprised of 1100 registered
voters evenly distributed across the county’s 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 A’s 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.