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Prosecutor Goes To Court To Fight Removal

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
Wikimedia Commons
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Central Florida State Attorney Aramis Ayala is suing Gov. Rick Scott in federal and state courts over her removal from nearly two dozen death-penalty cases, including the high-profile case of accused police-killer Markeith Loyd.
Ayala filed lawsuits Tuesday in federal court and the Florida Supreme Court challenging Scott's authority to strip her office from handling the cases, arguing that prosecutors have broad discretion in deciding whether to seek death for defendants accused of first-degree murder.

The state challenge accused Scott "unnecessarily and precipitously" creating confusion regarding criminal prosecutions, and of doing so "just to score political points."

Ayala earned the wrath of Scott, Attorney General Pam Bondi and Republican lawmakers after the newly elected state attorney announced last month she would not seek the death penalty for Loyd or any other defendants accused of capital crimes during her tenure in office.

Loyd is accused in the slaying of his pregnant ex-girlfriend, Sade Dixon, and the execution-style killing of Orlando Police Lt. Debra Clayton.

Ayala, who unseated former State Attorney Jeff Ashton last year in the circuit made up of Orange and Osceola counties, said she based her decision on research that shows the death penalty is not a deterrent to crime, is racially discriminatory, is costly, leaves the families of victims in limbo for too long, and is imposed on innocent people too often — arguments she reiterated in Tuesday's court filings.

Hours after Ayala's announcement last month, Scott reassigned the Loyd case to Ocala-area prosecutor Brad King, an outspoken proponent of the death penalty. Scott later issued an executive order putting King in charge of 21 other death-penalty cases handled by Ayala's 9th Judicial Circuit office. Last week, Scott reassigned another death-penalty case, involving convicted killer Dane Abdool, to King, who is also named as a defendant in the lawsuits filed Tuesday.

"It bothers me," Scott told reporters Tuesday when asked about Ayala's legal challenges. "I think every citizen deserves a state attorney who is going to prosecute the cases. So, I want to thank Brad King for taking on the cases, but I am going to continue to review cases and make sure that we always think about the victim."

Ayala filed the court challenges Tuesday after a circuit judge refused to put the Loyd case on hold while the state attorney pursued legal action challenging Scott's authority to reassign the cases, something more than 100 law professors and legal experts, along with Ayala's lawyer, maintain the governor lacks.

In the federal case filed in the Middle District of Florida, Ayala's lawyer Roy Austin argued that Scott's ouster of Ayala from the cases "due to a disagreement over her prosecutorial discretion, and based on incorrect characterizations of her decision" is a violation of the 14th Amendment right to due process. Scott's reassignment of the cases to King also violated the rights of voters who elected Ayala to represent them, Austin argued.

Austin asked the federal court to delay a ruling in the lawsuit while the state court case proceeds.

In that lawsuit, Austin, an attorney with the Washington, D.C.-based Harris, Wiltshire & Grannis law firm, requested the Supreme Court put a hold on the 23 cases reassigned to King until justices rule on the issue.

In reassigning the cases to King, Scott relied on a Florida law that gives the governor the authority to transfer a case to another state attorney if a prosecutor is disqualified from the case or if "for any other good and sufficient reason, the Governor determines that the ends of justice would be best served."

But Austin argued, the state law goes back to the early 1900s, before state attorneys were elected.

Since the Constitution was changed in 1972 to require the election of state attorneys, the Supreme Court "has never suggested" that the state law gives a governor authority to remove an elected state attorney from a case "where the attorney is ethically and competently able to proceed," Austin argued.

"When Ayala exercised her prosecutorial discretion and decided that she would not seek the death penalty, she was acting entirely within her authority. That entirely legal act cannot possibly constitute 'a good and sufficient reason' for replacement. Nothing in Florida law requires Ayala to seek the death penalty, even when statutory aggravators are present, so the suggestion that her charging policy is grounds for replacing her is meritless," Austin wrote in the 35-page state court petition.

The controversy over Scott's removal of Ayala, the state's first black elected state attorney, has sparked racial tension and sharpened the spotlight on Florida's embattled death penalty, which has been on hold for more than a year as a result of federal and state court rulings.

National groups, including the NAACP, have backed Ayala, while Central Florida Republican House members have repeatedly urged Scott to remove Ayala from office, accusing the prosecutor of failing to do her job.

But, while the Florida Constitution authorizes the death penalty, it does not require state attorneys to choose it, Austin said.

"There is no mandate that any prosecutor in Florida ever seek the death penalty," he told The News Service of Florida in a telephone interview Mondayevening.

But Bernie McCabe, the state attorney in Pasco and Pinellas counties, said prosecutors are obligated to uphold Florida law, even if they are not forced to by the Constitution.

"I think if you're going to be the state attorney and you're sworn to uphold the laws of the state of Florida, you've got to do all of them," McCabe said in a telephone interview Tuesday. "If you accept this job, you have to accept that the governor can remove you from a case if he thinks that's in the best interest of justice. That's just the way it is."

State attorneys throughout the state have routinely exercised their discretion not to seek the death penalty for defendants charged with capital crimes, Austin said.

"For some reason, State Attorney Ayala is being treated differently than every other state attorney in Florida," he said in the interview.

The death penalty has long been a hot-button issue for policymakers in Florida, one of more than three dozen states with the death penalty but one of just a handful that actually carried out executions in the past few years.

"I certainly think that there are politics involved in the governor's decision. But this is really and truly about prosecutorial discretion, and the discretion that prosecutors all over Florida, all over the country use every day to decide what cases they're going to prosecute, how they're going to prosecute those cases and what sentences they're going to seek," Austin said.

Austin said that allowing Scott to remove Ayala from the cases would set a dangerous precedent.

"If the governor's allowed to do this, he can step into her office, he can step into every single office where for political reasons he can replace the decisions of the prosecutor with decisions of his own," he said.