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July 15, 2017
Arguments distinguish between discretion and refusing to follow the law

Court questions lawyer for Ninth Circuit State Attorney Ayala on her refusal to pursue the death penalty

By Jan Pudlow
Senior Editor

Ninth Circuit State Attorney Aramis Ayala asked the Florida Supreme Court to return two dozen first-degree murder cases that were unlawfully taken from her by Gov. Scott, because he does not have the authority to override prosecutorial discretion of an elected state attorney, and to “treat her with the same respect that is given every other state attorney in Florida,” her lawyer, Roy Austin, told the justices in oral arguments on June 28.

But Justice Fred Lewis immediately pounced on the word “discretion” and hurled it back at Austin: “To my mind, discretion is when you make a decision on a case-by-case basis. . . Was there not a statement, ‘I’m not going to follow Florida law,’ essentially?”

Austin answered: “Discretion comes in many forms, and what State Attorney Ayala did is absolutely an exercise in discretion. When a state attorney decides how they’re going to use their resources, how they’re going to employ fellow assistant state attorneys, when they decide how they treat some cases versus other cases, that is absolutely an exercise in discretion.”

Lewis persisted: “You’re taking such a firm stance here. It seems to me that discretion is not to ignore Florida law.”

“Well, your honor, respectfully, there is nothing in Florida law that requires State Attorney Ayala to seek the death penalty,” Austin responded, asking justices to look closely at F.S. §782.04.

“That is the only statute that governs how a state attorney chooses whether to seek the death penalty or not. All 782.04 says is that if any state attorney wants to seek the death penalty, that they have to then notify the defendant within 45 days. That is the only requirement in Florida law, with respect to a state attorney’s decision whether or not to seek the death penalty,” Austin said.

Ayala sued Gov. Scott for taking away her capital cases, after she announced on March 16 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 in a high-profile cop killer case, and replaced her with Fifth Circuit State Attorney Brad King. On April 3, Scott issued more executive orders removing Ayala from a total of 24 capital cases in her circuit and replacing her with King.

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.

But at oral arguments in Case No. 17-653, the death penalty was pivotal in the questioning.

“Under your position, a state attorney in one circuit, take, for example, Pinellas County, could decide: ‘We’re going to abide by the death penalty in cases, and we’re going to evaluate each case, and we’re going to seek the death penalty when we think it’s proper.’ So you have the death penalty in that circuit,” Chief Justice Jorge Labarga said. “Next door in Hillsborough County, the state attorney could decide: ‘We’re not going to do the death penalty at all in this circuit.’ So you’re going to have a situation where in the state of Florida, you’re going to have one circuit with the death penalty, and another circuit without it, all over the place. How is that proper? Why do we need a Legislature, if we have that?”

Austin answered: “That is exactly what happens right now. Every state attorney is elected by the voters of his or her circuit. And that state attorney makes a decision on whether or not they are going to seek the death penalty, whether or not they will charge minor marijuana cases. . .”

“On a case-by-case basis,” Labarga interjected. “Not a blanket disapproval of a law in effect in the state of Florida.”

Justice Barbara Pariente tried to distinguish between what Ayala said at her press conference about not pursuing the death penalty as a policy decision, and what she’s arguing in her petition to the court.

“She is absolutely going to look at each and every case,” Austin said. “But there is nothing in the law that says that discretion has to be solely on the facts of a specific case.”

Justice Charles Canady asked: “Why couldn’t this be viewed as an instance of malfeasance?”

Austin responded: “I would note that in 60 pages of argument, the governor never once said this is malfeasance or misfeasance. . . . What State Attorney Ayala did is follow the law as it is written in the criminal statute. She followed it to the letter. She has that discretion.”

Justice Alan Lawson asked: “Where in the statute does it say that [the governor] has to get somebody else’s permission to make this determination?”

“Your honor, that is the way that it has been read for 30 years,” Austin said.

“It seems to me, if you follow that argument, then what we’re ending up with is the governor with unfettered discretion,” Justice Peggy Quince said.

“That is exactly what happened here,” Austin said. “If you read the governor’s brief, what the governor says is whenever he decides he wants to take a case from a state attorney, he can do so. All he has to have is a reason, and he doesn’t have to explain the reason.”

Solictor General Amit Agarwal, representing Scott, boiled his argument down to this question: “Is it really the case that every single elected prosecutor in the state may adopt a blanket policy of refusing to apply or enforce any state law with which that prosecutor personally disagrees, as a matter of policy? And that there is nothing that anyone serving in any of the three branches of government can do about it?”

Quince distinguished between a prosecutor bringing charges and the sentence a prosecutor decides to pursue, and asked: “Is the prosecutor required to pursue the highest possible sentence in any particular case or range of cases?”

“No, your honor,” Argarwal answered. “We’re not arguing that state law requires prosecutors to seek the death penalty.”

Later, Argarwal elaborated: “Our position is intelligent people of goodwill can and do disagree about the death penalty, but no one individual in our society has the right to say, ‘I’ve taken a hard look at this. I’ve considered all the available evidence. I have figured out this issue. And I’m going to make a policy judgment that is blanket across the board.’

“. . .It’s like that law has been nullified.”

[Revised: 04-10-2018]