Death Penalty at Center of Fla. Prosecutor, Governor Dispute

By Chris Marr

Florida’s first black elected state attorney is headed to the state Supreme Court not as prosecutor but as plaintiff—asking the court to recognize her authority to reject the death penalty in cases she prosecutes without interference from the governor ( Ayala v. Scott, Fla., No. SC17-653, oral arguments 6/28/17 ).

Aramis Ayala is contesting executive orders by Florida Gov. Rick Scott (R) that transferred 23 homicide cases to a different state attorney’s office after she said she wouldn’t seek the death penalty. These included the case of a murdered Orlando, Fla. police officer.

The Florida Supreme Court will hear oral arguments over Ayala’s petition June 28.

The case is attracting attention and amicus briefs from such groups as the ACLU, Florida’s NAACP, state legislators, and victims’ families.

In one brief, a team of former judges and solicitors general argue the governor’s actions threaten key democratic principles, including the independence of state prosecutors and the will of the voters who elect Florida’s state attorneys.

Ayala’s attorneys, including Roy Austin and Amy Richardson of Harris, Wiltshire & Grannis, in Washington, plan a more straightforward legal focus at the upcoming oral arguments

“We’ll be emphasizing the statutory basis that State Attorney Ayala acted within her prosecutorial discretion, and appropriately so,” Richardson told Bloomberg BNA June 19.

“This is a unique case, but we think it clearly falls within the constitutional authority granted to state attorneys.”

Case Transfers Common

Attorneys for the governor argue the state constitution gives him authority to make assignments of state officials including transferring cases among state attorneys for any “good and sufficient reason” that serves the cause of justice.

The governor frequently transfers cases, often at the request of state attorneys, and there has traditionally been no dispute over his constitutional authority for these transfers, attorneys for Scott wrote in their response brief to the Florida Supreme Court. Ayala herself has asked the governor to transfer six cases since taking office.

In the governor’s view, Ayala is asking the court to grant state attorneys the broad discretion to “categorically refuse to enforce any and all state laws with which she disagrees” without the governor having power to do anything about it, attorneys for Scott wrote.

Attorneys for the Florida House of Representatives went a step further in a separate brief, arguing the legislature sets policy and Florida law leaves state attorneys no discretion on whether to pursue the death penalty in cases where it is statutorily appropriate.

The attorney general’s office, which represents Scott, declined to comment to Bloomberg BNA June 20, except to say the office looks forward to arguing its case.

Florida only recently regained the ability to impose the death penalty, after enacting legislation requiring unanimous jury verdicts in death penalty cases in line with a U.S. Supreme Court requirement.

High-Profile Officer’s Murder

Ayala was elected as the state’s top prosecutor for Florida’s ninth judicial circuit in November 2016, and it didn’t take long for a high-profile murder case to land in her office. Markeith Loyd faces murder charges related to the shooting deaths of his ex-girlfriend and an Orlando police officer, Lt. Debra Clayton, who was killed in January while trying arrest Loyd in a Walmart parking lot.

Ayala’s announcement in March that she wouldn’t seek the death penalty in the case raised the ire of the governor, who asked her to recuse herself. When she said she wouldn’t, the governor transferred the case out of Ayala’s office to another state attorney, Brad King of the fifth judicial circuit, who has been publicly supportive of the death penalty.

The governor accused Ayala in a March 16 statement of refusing to “fight for justice” for the victims’ families. Two weeks later, the governor reassigned 22 more cases out of Ayala’s office, citing her public statement that she wouldn’t seek the death penalty in her cases.

In her April 11 petition to the Florida Supreme Court, Ayala said the governor disregarded her “pragmatic analysis” and evidence-based decision related to the death penalty and reassigned her cases for political reasons.

In studying the issue, according to her petition, Ayala concluded that “there was no indication that the death penalty protected the public or law enforcement officers, the death penalty cost about $2.5 million more than a life sentence, and uncertainty in the law often led to a decades-long, harmful lack of closure for victims’ families.”

In addition, she said the death penalty has a history of being enforced in a way that is biased against racial minorities and low-income people.

Ayala hadn’t spoken in her campaign or prior to her election of an opposition to the death penalty, the governor’s attorneys noted in their brief.

Broader Implications

A wide range of interested parties raised concerns about the broader implications of the case, including civil rights concerns.

“The voices of the people are really what’s most important here—the voices being their votes,” Donita Judge, a senior attorney at the civil rights group Advancement Project, told Bloomberg BNA June 20.

Florida has a history of relatively high incarceration rates, and the Advancement Project has seen some signs of progress recently in criminal justice reform in the state, according to the brief. The group’s attorneys described Ayala in their brief as a reform candidate, whose potential as a reformer was undercut by the governor reassigning her homicide cases.

The Ayala case also “puts squarely at issue the fundamental independence of prosecutors and the judicial branch,” wrote a legal team including Donald Verrilli Jr., former U.S. solicitor general and now a partner at Munger, Tolles & Olson in Washington, in the amicus brief filed by former judges, solicitors general and prosecutors. “The Florida Constitution does not allow the governor of the state to support the exercise of prosecutorial discretion only when he finds it agreeable and to intervene when he feels otherwise.”

On the other hand, a group of victims’ family members argued Ayala failed to follow Florida law and the state constitution’s requirements to consider input from family members in the prosecution and sentencing of murder cases.

“The Petitioner’s preemptive strike against secondary victim input for capital punishment silences those with a substantial right to be heard,” the family members’ attorneys wrote in an amicus brief, filed by Daniel J. Gerber of Rumberger, Kirk & Caldwell in Orlando. “Petitioner’s declaration that she will not seek the death penalty in cases handled by her office is not a proper exercise of discretion; rather, it is an exercise of bias.”

Ayala also has sued the governor and King in federal court, accusing them of violating her constitutional rights. That case is stayed in the U.S. District Court for the Middle District of Florida, pending the outcome of the Florida Supreme Court petition.

To contact the reporter on this story: Chris Marr in Atlanta at

To contact the editor responsible for this story: C. Reilly Larson at

For More Information

Ayala's petition at's response at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.