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September 15, 2017
Court rules against Ninth Circuit state attorney’s death penalty stand

By Jan Pudlow
Senior Editor

In a 5-2 decision, the Florida Supreme Court held that Gov. Rick Scott had the authority to take first-degree murder cases away from Ninth Circuit State Attorney Aramis Ayala, after she held a press conference announcing her decision not to seek the death penalty in a high-profile cop-killer case or any other current capital case.

“. . . Ayala and her amici urge this court to invalidate the reassignment orders by viewing this case as a power struggle over prosecutorial discretion. We decline the invitation because by effectively banning the death penalty in the Ninth Circuit — as opposed to making case-specific determinations as to whether the facts of each death-penalty eligible case justify seeking the death penalty — Ayala has exercised no discretion at all,” wrote Justice Alan Lawson on August 31 in Case No. SC17-653, with Chief Justice Jorge Labarga, and Justices Charles Canady and Ricky Polston concurring. Justice Fred Lewis concurred in result.

Ayala sued Gov. Scott for taking away her capital cases, after announcing on March 15 that she will not seek death for any current murder case because Florida’s death penalty is in chaos, is ineffective, and is too expensive compared to life in prison without parole. That day, Gov. Scott signed an executive order removing Ayala from a total of 23 capital cases (that has now grown to 29) in her circuit and replaced her with Fifth Circuit State Attorney Brad King.

On August 31, the day of the court’s ruling on her petition for a writ of quo warranto, Ayala issued a statement that makes it clear she intends to handle future capital cases in her own Ninth Circuit.

“I respect the decision and appreciate that the Supreme Court of Florida has responded and provided clarification. The Supreme Court of Florida ruled today that a case-specific determination must be made on first-degree murder cases. To ensure today’s court decision is heeded, I have organized a Death Penalty Review Panel comprised of seven well-versed and experienced assistant state attorneys. This panel will evaluate each first-degree murder case in the Ninth Judicial Circuit,” Ayala said. “With implementation of this panel, it is my expectation that going forward, all first-degree murder cases that occur in my jurisdiction will remain in my office and be evaluated and prosecuted accordingly.”

The next day, Ayala stood on the courthouse steps and held a press conference, elaborating on how the Death Penalty Review Panel will work.

She said the experienced prosecutors, all who have sought and believe in the death penalty, will review each first-degree murder case and make a recommendation, after the assistant state attorney assigned to the case has met with the victim’s family. The panel will analyze the aggravating factors and mitigating circumstances, as outlined in Florida law, and will make a unanimous decision, just as jurors are now required to do in murder cases. When the recommendation is to seek death, Ayala said, her office will file a death notice within the time required by law.

“For clarity, it is worth nothing that I have invested my authority into the review panel and have no intention of usurping the authority which I grant it,” Ayala said. “It is my expectation that going forward all first-degree murder cases that occur in my jurisdiction here in the Ninth Circuit will remain in my office to be evaluated and prosecuted accordingly.”

Although she believes she has the legal authority to ask that the 29 cases reassigned to King be returned to her, she will not ask for that to happen, because she does not think it’s in the best interest of the families and homicide victims.

“There’s a difference between giving up and letting go,” Ayala said. “At this time, I believe the most compassionate and humane response is to allow [the transferred murder cases] to remain with the current prosecutor.

“The court has ruled. I am the state attorney, and I have the responsibility to follow the law.”

On the day the court ruled, Gov. Scott issued his own statement: “Today’s ruling is a great victory for the many victims and families whose lives have been forever changed by ruthless, evil acts of crimes. I absolutely disagreed with State Attorney Ayala’s shortsighted decision to not fight for justice. That’s why I’ve used my executive authority to reassign nearly 30 cases to State Attorney Brad King.”

The governor specifically pointed to cases of defendants accused of killing law-enforcement officers, and another case involving the killing of a toddler.

“Crimes like these are pure evil and deserve the absolute full consideration of punishment — something that State Attorney Ayala completely ruled out. She unilaterally decided to not stand on the side of victims and their families, which is completely sickening. In Florida, we hold criminals fully accountable for the crimes they commit — especially those that attack our law-enforcement community and innocent children.”

The court’s majority opinion noted: “The governor’s orders do not direct King to seek the death penalty in any of the reassigned cases, and King has sworn that the governor has not attempted to interfere with his determination as to whether to pursue the death penalty in any case.

“Rather, consistent with the governor’s constitutional duty, effectuated pursuant to his statutory assigned authority, the executive orders ensure the faithful execution of Florida law by guaranteeing that the death penalty — while never mandatory — remains an option in death-penalty eligible cases in the Ninth Circuit, but leaving it up to King, as the assigned state attorney, to determine whether to seek the death penalty on a case-by-case basis.”

Of the 29 cases reassigned to King, two have gone to trial, where jurors found both defendants guilty of first-degree murder and unanimously recommended the death penalty, a new penalty-phase requirement in Florida law, in the wake of a January 2016 U.S.S.C. decision in Hurst v. Florida, striking down Florida’s death penalty sentencing scheme and throwing capital cases in chaos.

In an earlier interview with the News, Ayala said, “When people say, ‘I want the death penalty and the death penalty is on the books and you should always seek it,’ I say, ‘You mean we should seek a penalty that we cannot produce?’

“The easier conversation is to minimize what I’m saying, and that it’s my personal opinion, and I’m not willing to seek the death penalty in any case,” she said. The harder conversation, she said, is to realize “death penalty is in chaos and turmoil, and we are not delivering what we are promising.”

Ultimately, Ayala said she sued the governor not because of the death penalty, but because she must defend her constitutional right to prosecutorial discretion in handling cases in the community in which she was elected.

In a dissenting opinion in which Justice Peggy Quince concurred, Justice Barbara Pariente wrote: “When State Attorney Ayala announced that her office would not seek the death penalty in capital prosecutions, she acted well within the bounds of Florida law regarding the death penalty. She did not announce a refusal to prosecute the guilt of defendants charged with first-degree murder.

“Rather, State Attorney Ayala announced that she would not seek a sentence that produces years of appeals and endless constitutional challenges and implicates decades of significant jurisprudential developments, many of which have emanated over the years from the United States Supreme Court.

“Despite assertions to the contrary, State Attorney Ayala did not make her decision based on personal opposition to the death penalty or ‘emotion.’ State Attorney Ayala’s decision was well within the scheme created by the Legislature and within the scope of decisions state attorneys make every day on how to allocate their offices’ limited resources. Because State Attorney Ayala’s decision was within the bounds of the law and her discretion, Gov. Scott did not have ‘good and sufficient reason’ to remove her from these cases. . . .The governor’s decision in this case fundamentally undermines the constitutional role of duly elected state attorneys.”

But the majority of justices agreed with Lawson, when he wrote: “[U]nder Florida law, Ayala’s blanket refusal to seek the death penalty in any eligible case, including a case that ‘absolutely deserve[s] [the] death penalty’ does not reflect an exercise of prosecutorial discretion; it embodies, at best, a misunderstanding of Florida law.”

[Revised: 12-07-2017]