Robert Dunham, Executive Director of the Death Penalty Information Center.
Robert Dunham, Executive Director of the Death Penalty Information Center. (Photo: Diego M. Radzinschi/ALM)

An embattled state prosecutor wants the Florida Supreme Court to referee a brawl over death penalty politics, race relations and the power of elected officials.

Gov. Rick Scott and Orange-Osceola State Attorney Aramis Ayala are locked in a power struggle that needs resolution by the courts. After Ayala refused to seek the death penalty in capital cases, Scott removed her from all 23 homicide cases in her Orlando-area jurisdiction and sent them to Ocala prosecutor Brad King.

Ayala responded by asking the high court to support her right as a constitutional officer to prosecute the criminal cases in her circuit as she sees fit.

The situation is unprecedented, said Robert Dunham, executive director of the nonprofit Death Penalty Information Center in Washington.

“This is the first time I am aware of in which a Florida governor has removed a prosecutor for exercising her discretion not to seek the death penalty,” he said. Replacing a prosecutor in an entire class of cases moves the dial from unprecedented to unheard of.

To Dunham the context is crucial. Scott is a Republican and staunch supporter of the death penalty. Ayala is a Democrat elected in predominantly Democratic counties where a recent poll shows voters prefer life without parole to the death penalty by a 2-1 margin, according to Dunham.

“By removing the only locally elected black prosecutor in the state on an issue with such a history of racial divisiveness, the governor sends a familiar message to the black community that they must conform or face retribution,” he said.

A Seminole County clerk’s office employee said in a Facebook posting that Ayala “should be tarred and feathered if not hung from a tree.” That hateful note reminded black Floridians “of the historical link between the death penalty and slavery, lynching and the apartheid laws and law enforcement practices of the Jim Crow era,” Dunham said.

Going Too Far?

Scott has a lot of support for his position that Ayala went too far when she rejected the death penalty in not just one homicide case but all of them, implying she’s prejudging her cases and defying the law.

Lawyers for the state House have permission to file an amicus brief opposing Ayala’s Florida Supreme Court petition. It will address “the exclusive role assigned by the Constitution to the Legislature in the setting of public policy for the state and the ill effects that flow from the refusal of a state officer … to enforce a duly enacted legislative policy based on his or her disagreement with the rectitude or efficacy of that policy,” according to a motion signed by House general counsel Adam Tanenbaum in Tallahassee.

The Florida Prosecuting Attorneys Association, which includes Ayala, weighed in Wednesday on the governor’s side, receiving permission to file an amicus brief based on “a super majority” vote of Florida’s 20 elected state attorneys. Association attorney Arthur I. Jacobs of Jacobs Scholz & Associates in Fernandina Beach promised to offer “useful insight” on “the discretionary powers of state attorneys and their accountability for their conduct as well as the authority of the governor to assign state attorneys to other circuits.”

While Ayala has prosecutorial discretion on her side, Scott has authority under the Florida Constitution to suspend any state officer “for malfeasance, misfeasance, neglect of duty” and other misdeeds.

Dunham said that kind of removal authority is hardly ever used against a prosecutor for refusing to seek the death penalty. He knew of a 1997 decision in which a divided panel of New York’s highest court upheld Gov. George Pataki’s right to stop Bronx District Attorney Robert Johnson from prosecuting the accused killer of a police officer.

Johnson had stated his opposition to the death penalty, although he didn’t announce a formal policy the way Ayala did. The two scenarios have much in common: White male Republican governors known for using the death penalty named white prosecutors to take over the cases of their states’ only black elected prosecutors.

The idea that Ayala would settle for life without parole for Pulse nightclub killer Omar Mateen — if he survived the Orlando massacre — might not sit well even with her constituents. But Dunham disputed the notion that Ayala boxed herself in to never seeking the death penalty in even the most horrible circumstances.

He said he read her no-death-penalty statement with “an implied asterisk,” meaning if the crime’s atrociousness outweighs other factors, she reserves the right to pursue the death penalty.

“I think the people who are involved with public policy understand that you set a policy and then you respond to individual facts,” Dunham said.

Cause Of ‘Chaos’

The case that ignited the Orlando capital punishment storm began Dec. 13, 2016, when Markeith Loyd allegedly killed his pregnant ex-girlfriend, Sade Dixon. A month later he was accused of fatally shooting Orlando police Lt. Debra Clayton as she tried to arrest him in Dixon’s slaying, police said.

Ayala, a former prosecutor and public defender, took office in January. On March 16, she announced she would not seek the death penalty for Loyd or for any other homicide defendants in her circuit.

“Florida’s death penalty has been the cause of considerable legal chaos, uncertainly and turmoil,” Ayala said. “By choosing to seek life sentences over death we can assure that violent offenders will never be released,” giving victims’ survivors closure and consistency.

Ayala correctly predicted her decision would be controversial. Scott asked her to recuse herself from the Loyd case. When she refused, he assigned King to take over. He quickly expanded that mandate to all homicide cases pending in Ayala’s circuit.

She has brought in a big Democratic gun, veteran prosecutor Roy L. Austin Jr., a partner with Harris, Wiltshire & Grannis in Washington. He served on President Barack Obama’s White House Domestic Policy Council, playing a leadership role in policymaking on criminal justice, labor, housing and human services issues.

Dunham has seen support for the ultimate punishment wax and wane nationally over the past 25 years. Now it may be waning, with Florida one of the few states that has carried out executions recently.

He welcomed the Ayala debate but questioned its meaning.

“Is this simply an exercise of power because the governor can, is this a kind of historic reenactment of white politicians disenfranchising the black community, or is this a principled argument about a particular policy?” Dunham asked. “It may be all of these.”


Case No.: SC17-653

Date filed: April 11, 2017

Case type: Writ of quo warranto

Court: Florida Supreme Court

Lawyers for petitioner: Marcos Hasbun and Mamie Wise, Zuckerman Spaeder, Tampa; Roy Austin Jr. and Amy Richardson, Harris, Wiltshire & Grannis, Washington

Lawyer for respondent: William Spicola, General counsel’s office, Gov. Rick Scott