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Victims’ families: Aramis Ayala shut us out; prosecutors group: She abolished capital punishment

“Unlike every other amici in this litigation, the Family Members’ right to be heard is not hypothetical, it is not philosophical, it is not past – it is real and present.” Thus opens a friend of the court brief filed Wednesday by the families of victims of seven homicides in the balance of the Florida Supreme Court case pitting the powers of Orlando’s State Attorney Aramis Ayala and Gov. Rick Scott.

The families brief, guaranteed by Florida law “and fundamental standards of decency in a modern society,” the brief states, was one of two filed Wednesday by friends siding with Scott, supporting his actions to strip first-degree murder cases from Ayala and reassign them after she pledged she would not seek death penalties.

The families’ brief connotes emotion and loss along with legal arguments. The Florida Prosecuting Attorneys Association, also does not mince words, arguing that Ayala tried to “abolish” the death penalty in her 9th Judicial Circuit, and that Scott responded prudently.

Both entered briefs in a case in which Ayala is challenging Scott’s power to issue 23 executive orders stripping away her cases and reassigning them to State Attorney Brad King of Ocala.

The family members are families of 9th Judicial Circuit homicide victims Orlando Police Lt. Debra Clayton, Sadie Dixon, Darrell Avant Jr., Jasmine Samuel, Elena Ortega, Alexandria Fransa Chery, and Teresa Ann Green.

The family members maintain they are not pressing an argument for or against capital punishment. Rather, they argue the families’ have the right and need to be heard out by prosecutors – for “meaningful participation” – before a decision is made whether to pursue a death penalty prosecution. Ayala, they argue, negated that right with her blanket declaration in March.

“The Petitioner’s preemptive strike against secondary victim input for capital punishment silences those with a substantial right to be heard. 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,” the argue. “For these Family Members, there is ample ‘good and sufficient reason,'” – the legal standard to support Scott’s executive orders.

And the families added that “because each homicide presents different victims, different secondary victims, and different circumstances, consequential participation and partnership is an indisputable force for better mental health outcomes in secondary victims. Shutting out, preempting, and disrespecting individual survivors’ views on capital punishment– pro or con – in their cases is an indisputable violation of the Family Members’ constitutional rights and inflicts unnecessary, compounded pain.”

The Florida Prosecuting Attorneys Association represents Florida’s 20 elected state attorneys [including Ayala and King] and more than 2,000 assistant state attorneys who work for them.

Their brief reads at times like a prosecutor’s opening statement in a murder trial, even declaring the guilt of the suspect whose case started Ayala’s tribulations and led to a firestorm of backlash: that of Markeith Loyd, which has not gone to trial, so he has not been convicted of the homicides for which he has been charged, Clayton, Dixon and Dixon’s unborn fetus.

“On March 16, 2017, State Attorney for Florida’s Ninth Judicial Circuit, Aramis Ayala [“Ms. Ayala”], announced she would not seek the death penalty against Markeith Loyd [“Mr. Loyd”], who not only murdered his pregnant ex- girlfriend, but also was caught on camera shooting and wounding a police officer, then as she laid on the ground wounded, fighting for her life, he walked up and executed her,” the prosecutors argue. “Despite the vicious and heinous murders of the two victims, Ms. Ayala decided that she would not seek the death penalty in not only these two cases, but not in any case during her time in office.”

Florida statutes and Florida Supreme Court presidents show Scott has the authority to reassign the potential capital cases for any “good and sufficient reason in order to see that the laws of Florida are faithfully executed,” the prosecutors argue.

“Additionally, this Brief illustrates Ms. Ayala’s lack of discretion and authority to disregard consideration of the death penalty in all cases. Specifically, Ms. Ayala effectively abolished the death penalty in the Ninth Circuit by implementing a hard-and-fast rule that removes her decision-making on a case-by-case basis, which is beyond the scope of her prosecutorial independence and discretion,” the prosecutors argued.

Martin Dyckman: Florida needs answers on death penalty discretion

The courtroom at the Florida Supreme Court seats 164, which may not be enough for all the attorneys, organizations and individuals who have intervened in the unprecedented case of Aramis Ayala v. Rick Scott.

Six groups have weighed in as friends of the court on behalf of Ayala, the state attorney for Orange and Seminole counties who is fighting to regain the 23 murder cases that the governor assigned to another prosecutor after she said she would not seek the death penalty in any of them

Among her supporters is a group of 45 prominent lawyers and judges, most well-known nationally. Among them are four former Florida Supreme Court justices, two former presidents of the American Bar Association, nine current and former district attorneys in other states, and four former U.S. Justice Department officials including Jamie Gorelick, who was Attorney General Janet Reno‘s deputy.

Three “friends of the court” support Scott, among them the Florida House of Representatives and the Florida Prosecuting Attorneys Association, which sided with the man who controls their budgets rather with the colleague who is fighting for their independence as well as hers.

One group of families of murder victims is backing Ayala. Another is for Scott.

Despite the extraordinary interest, this case is not going to decide whether the death penalty is as error-prone, financially wasteful and as altogether counter-productive as Ayala correctly insists.

Florida needs answers to those questions, but capital punishment is one of those issues where precious few politicians care to be confused by facts. As the steam was building in Ayala v. Scott, the House of Representatives defeated a budget amendment calling for an objective study of the costs and consequences of the death penalty.

For the court, however, the questions are simply these: Did Ayala abuse her discretion in deciding as she did? Did Scott abuse his in stripping her of those 23 cases?

It’s one of the most significant arguments the court will ever hear. Florida prosecutors make perhaps tens of thousands of judgment calls every year: What crime to charge? What crime not to charge? What plea to accept? They have even more power than the judges in deciding who goes to prison and for how long.

Should a governor be able to supersede one of those decisions simply because he doesn’t agree with it? Carried to an extreme, that makes him a dictator.

As the brief of the 45 lawyers and judges argues, “The real issue—and the one properly before this Court—is the independence of state attorneys to exercise their discretion without interference from other political branches of government. Indeed, this case puts squarely at issue the fundamental independence of prosecutors and the judicial branch …

“The Florida Constitution does not allow the governor of the state to support the exercise of prosecutorial discretion only when he finds it agreeable to and to intervene when he feels otherwise.” the brief says.

This is the gist of Ayala’s case, although she contends that the governor’s power to reassign state attorneys is a lot less limited than Scott’s predecessors have taken it to be. They sent in substitutes not only when some prosecutor reported a conflict of interest, such as a relative or former client facing charges, but also in cases of official misconduct where they believed the resident prosecutor was compromised by friendship or indifference. But I can recall no case like Ayala’s, in which the issue is not whether to prosecute for a crime but only whether to ask for a specific penalty.

Scott contends that Ayala made an “across the board determination not to undertake a case-specific analysis.” In effect, his lawyers say, she decided not to exercise her prosecutorial discretion.

His position appears somewhat inconsistent with what the governor’s office wrote last year to a citizen who had complained about another state attorney.

State attorneys are independently elected, charged with “certain discretionary duties,” and answerable only to their voters, the letter said.

All this begs the question of whether Florida will be harmed in any way if Ayala gets the cases back and the defendants she convicts go to prison for life instead of to death row.

The answer is no. Florida would be better off.

The killers would be behind bars for life. Anyone who thinks that’s getting away with murder should consult the ghost of Aaron Hernandez. Florida would spend a lot less money putting them in prison and keeping them there. There would be no multiple rounds of appeals, many of them to federal courts beyond the state’s control. The families of victims wouldn’t have to wait 20 or 30 years or longer for closure.

In any event, the voters of Orange and Seminole counties will have the opportunity to pass judgment on Ayala three years from now. Why isn’t Scott willing to wait for that? Is it because that would be no help to his U.S. Senate campaign next year?

It would be useful — and overdue — to have a comprehensive study from the Legislature’s highly capable and nonpartisan office of Office of Program Policy Analysis and Government Accountability. Among other things, the people deserve to know how much extra money they are spending on death cases. OPPAGA should also be tasked to explain in detail what happens to the enormous majority of killers who don’t end up on death row. In fiscal 2015, for example, Florida courts sent 942 people to prison for homicides ranging from manslaughter to first-degree murder, but only eight to death row.

A safe guess would be that prosecutorial discretion accounted for virtually all of that. Isn’t it time to know?

___

Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Rick Scott, Pam Bondi answer Aramis Ayala’s suit: she’s not practicing discretion

Gov. Rick Scott together with Attorney General Pam Bondi filed a 60-page response to Orlando’s State Attorney Aramis Ayala‘s charge that he overstepped his authority in reassigning her cases, contending Ayala has asked him to reassign other cases, and that her argument of “prosecutorial discretion” is actually one seeking no discretion.

Scott’s response, filed late Wednesday with the Florida Supreme Court, also contends that the weight of history and past court decisions all are on his side, and the ramifications of Ayala’s claims would upset a great deal of Florida legal and government precedent and practice.

“If accepted, those claims will have vast, long-lasting, and likely unforeseeable implications for the administration of criminal justice in this State,” Scott’s response concludes. “Even if the Petition’s claims did not fail as a matter of law, this Court should decline the invitation to render an authoritative judgment on these weighty issues on the basis of conclusory and disputed factual allegations.”

The battle is over Ayala’s determination to not pursue death penalty prosecutions in her 9th Judicial Circuit, covering Orange and Osceola counties. It’s also over Scott’s executive response to that March 16 declaration, his executive orders stripping 23 first-degree murder cases from her and reassigning them to 5th Judicial Circuit State Attorney Brad King of Ocala.

Scott argued he issued the orders against Ayala’s will as a Florida governor has the legal authority to do so of “good and sufficient reason,” as he “determines that the ends of justice would be best served.”

In her writ for quo warrento filed with the Supreme Court on April 11, Ayala charged that as an elected state attorney she has exclusive prosecutorial discretion to decide how to prosecute criminal cases and that Scott did not have the authority to overrule her decisions simply because he disagrees with them.

Numerous outside legal, Civil Rights, prosecutorial, and other groups and individuals have filed amicus briefs – friends of the court – taking sides and laying out additional arguments, indicating what Scott acknowledged in his answer, that the the case has vast, long-lasting and likely unforeseeable implications for justice in Florida.

Ayala’s attorney Roy Austin Jr. replied with the following statement:

“Gov. Scott’s response shows that he continues to overstate his power under Florida law. As one example of his baseless arguments, he criticizes State Attorney Ayala after he specifically ordered her office to turn over all matters related to Markeith Loyd.

“What Gov. Scott has done is an illegal and unprecedented power grab that threatens the independence and integrity of Florida’s judicial system, and we look forward to responding to this filing by May 8.”

Scott’s response makes five arguments:

– Case reassignments by the governor have been common going back to at least 1905, and including all the time since Ayala maintains key Constitution Amendments and law changes favored her. In fact, Scott noted, Ayala herself has requested six reassignments and Scott complied and reassigned four of those for her – all to King, her suggestion.

“Indeed, this Court has ruled that the Governor’s reassignment power is “essential to the orderly conduct of the government and the execution of the laws of this State,” the governor’s brief argues.

– Scott argues that his orders ensure prosecutorial discretion where there was none, not the other way around. He said Ayala’s declaration was essentially that she would not practice case-by-case discretion, while King is free to do so.

King, Scott argues, “is conducting a case-specific review of each matter. State Attorney King retains full discretion not to seek the death penalty in each case and has already determined (based on a preliminary review) that the death penalty may not be appropriate in some of the 23 assigned cases.”

– Scott argues that the case is not about Ayala’s right to not pursue death penalties regardless of circumstances, but any state attorney’s inclination to not pursue anything in particular he or she might not want to pursue, a far too broad prospect for the court to allow.

“It will also apply to prosecutors who disagree with other kinds of criminal laws and penalties—including, for example, hate-crimes enhancements, laws that ban the open carrying of firearms, and campaign-finance regulations,” the brief argues. “Nor can Ayala’s theory of ‘absolute’ and preclusive discretion be confined to prosecutors who adopt across-the-board policies of NEVER enforcing certain statutes. Some locally elected prosecutors may commit to ALWAYS pursuing certain charges or severe sentencing enhancements [such as mandatory minimum sentences] whenever possible and regardless of circumstances.”

– Scott argues that regardless of whether Ayala has a right to refuse certain prosecutions, it does not negate the governor’s right to reassign cases anytime he feels it’s appropriate for the ends of justice to be served.

– And fifth, Scott argues that, all of that aside, Ayala’s request is extraordinary and she has not met the burden of proof to ask the court to consider such major changes in Florida’s prosecutorial and governmental traditions.

“Ayala cannot properly ask this Court to render an authoritative judgment immediately and conclusively accepting such sweeping and far-reaching departures from existing law where, as here, that judgment would necessarily depend upon the acceptance of the emergency petition’s conclusory and heavily disputed factual allegations,” the brief argues.

Supreme Court denies Aramis Ayala’s first writ to win back cases Rick Scott reassigned

The Florida Supreme Court denied the first attempt by Orlando’s State Attorney Aramis Ayala to win back first-degree murder cases that Gov. Rick Scott reassigned to another state attorney.

In denying Ayala’s emergency, non-routine petition to overturn Scott’s executive orders reassigning the cases to Ocala’s State Attorney Brad King, the Supreme Court concluded that the matter “is more properly addressed” through her other legal challenge, a writ of quo warranto, which she later filed.

That leaves the matter where most expected it to be left, in her second challenge of Scott’s action, a case that has drawn broad support for both Ayala and Scott from a variety of outside groups who expect the ruling to be pivotal in determining the extent of powers in Florida of both the state attorney and the governor.

At issue are Ayala’s refusal to pursue death penalty prosecutions in her 9th Judicial Circuit, and Scott’s determination that she is derelict in her duties, giving him the responsibility to reassign potential death penalty cases to someone else, in this case to King in Florida’s 5th Judicial Circuit.

In a ruling issued late Tuesday, the Supreme Court denied the first petition from Ayala, stating, “The Petition asks this Court to answer the same question of law, on a temporary basis, that the Court is asked to address in the separately filed Petition for Writ of Quo Warranto. That question is more properly addressed after both parties have been heard in the Quo Warranto action and will not be answered on a “temporary” basis.”

blackjack

Senate budges little in initial gambling negotiation

Saying he wanted to “start taking small steps,” state Sen. Bill Galvano on Monday tendered the first offer in the Legislature’s negotiation on a gambling bill this year.

The initial tender, though it largely maintains what’s in the Senate’s bill, also would classify contentious “pre-reveal” games as slot machines, and would limit two new slots facilities to either Broward or Miami-Dade counties.

A circuit court ruling last month against the state said entertainment devices that look and play like slot machines, called “pre-reveal” games, were “not an illegal slot machine or gambling device.” House leaders in particular feared that meant they would wind up in bars, restaurants, and even in family fun centers.

The Senate offer also would give the state more time, up to two years, to address any future violation of blackjack exclusivity brought by the Seminole Tribe of Florida with a legislative fix. That also was addressed to court rulings that create such “violations.”

The House and Senate are far apart on their respective gambling bills this session, with the House holding the line on gambling expansion, and the Senate pushing for new games.

A deal is pending to grant continued blackjack exclusivity to the tribe in return for $3 billion over seven years, though that money isn’t part of ongoing budget talks between the House and Senate. A request for comment is pending with the Tribe’s spokesman.

Galvano’s House counterpart, state Rep. Jose Felix Diaz, said he appreciated the offer “to get the conversation going,” specifically mentioning the 2-year provision in the context of court decisions on gambling.

“There are still plenty of threats out there and we’re constantly playing a game of catch-up,” he said. Diaz added that he expects to respond some time later this week: “There is some low-hanging fruit here and some more complicated issues to work through.” The 2017 Legislative Session is scheduled to meet May 5.

Galvano mentioned last Thursday’s Supreme Court decision that cleared the “Voter Control of Gambling” amendment for the 2018 ballot.

He surmised from Justices Ricky Polston‘s and R. Fred Lewis‘ dissent in that case that the court is ready to rule in favor of expanding slot machines to counties that approved them in local referendums.

“One can almost glean from the dissent that it’s a fait accompli just pending in the court,” Galvano said. “Either we do it or the courts are going to do it.”

“When I look at the dissenting opinion, it almost references (new slots in referendum counties) as if they’re existing,” Galvano later told reporters. “All of these things play into the big picture.”

He also has concerns that the amendment, if adopted, could retroactively quash new slots approved for Hialeah. When asked whether he were reading between the lines, he added, “That’s a good way of putting it.”

Gambling deal may come down to slots question

Seeing it as the “lesser of various evils” to pass a gambling bill this year, the House may give in to the Senate’s position to legislatively approve new slot machines in counties that passed referendums allowing them, according to those familiar with the negotiations.

As of early Monday, the Conference Committee on Gaming was set to meet later in the day at 1:30 p.m., though an official notice had not yet gone out.

The House and Senate are far apart on their respective gambling bills this session, with the House holding the line on gambling expansion, and the Senate pushing for new games. Both sides also want to see some new agreement with the Seminole Tribe on continued exclusivity to offer blackjack in exchange for $3 billion over seven years.

What’s becoming clearer as the 2017 Legislative Session’s May 5th end looms is House leadership’s distress at recent court decisions, the practical effect of which is opening up more gambling opportunities without legislative say.

Sources had said conference chair and state Sen. Bill Galvano had gotten “spooked” by a Supreme Court decision last Thursday that cleared for the 2018 ballot a “Voter Control of Gambling” amendment, giving voters the power to OK or veto future casino gambling in the state.

Vice-chair and state Rep. Jose Felix Diaz confirmed that Galvano, who didn’t respond to a request for comment, wanted to make sure the amendment “wouldn’t affect the Senate’s offer.”

But one representative of gambling interests throughout the state, who asked not to be named, said the House “was very careful in not taking the referendum counties issue off the table.”

A second person said that “(a)ll things considered, that was way down on the list of things that gave them heartburn.”

More concerning was a 1st District Court of Appeal opinion earlier this month against the Department of Business and Professional Regulation, which regulated gambling, ordering the reinstatement of a South Florida casino’s application for a new “summer jai alai” permit.

Taken to one logical extension, the ruling could lead to “mini-casinos” in hotels, they say. Miami-Dade lawmakers in particular have been concerned about Miami Beach’s Fontainebleau Hotel pursuing slot machines in the last few years. At a minimum, such permits allow a pari-mutuel facility to open a cardroom and offer simulcast betting.

Another circuit court ruling last month against the department said entertainment devices that look and play like slot machines, called “pre-reveal” games, were “not an illegal slot machine or gambling device.” Judge John Cooper reasoned that was because players “press a ‘preview’ button before a play button can be activated.”

That ruling’s applicability was, at first, unclear: Because Cooper is a circuit judge, some state officials said his order only applied in north Florida’s 2nd Judicial Circuit of Franklin, Gadsden, Jefferson, Leon, Liberty and Wakulla counties.

Later, attorneys in the industry argued Cooper’s decision applied all over Florida, because it was against the department that regulates gambling statewide. That had House leaders “freaked out” that pre-reveal games would start appearing in bars, restaurants, and even in family fun centers.

Meantime, Galvano and others in the Senate fixated on the dissent in the gambling amendment case, and its implication on what’s known as the “Gretna case.”

Justices Ricky Polston and R. Fred Lewis said the amendment’s “ballot title and summary do not clearly inform the public that the proposed amendment may substantially affect slot machines approved by county-wide (referendums).”

With Lewis signing on to the dissent, “that made us think there was another vote in favor of Gretna that we didn’t think was there,” said yet another person in the gambling industry.

The court has not yet ruled in a case, pending since oral argument was given last June, on Gretna Racing. That’s the Gadsden County track seeking to add slot machines; pari-mutuel interests have said Gretna and other facilities in counties where voters approved slots should be allowed to offer them.

If the court rules in favor, that could result in the single biggest gambling expansion in the state.

“I think the House is fed up with it,” said the first industry consultant, referring to gambling-related court decisions. “The only way they can get a handle on (gambling expansion) is to get a bill done, and if that means throwing in the towel on slots in referendum counties, that’s the lesser of the various evils.”

If another SCOTUS opening occurs, will Charles Canady get a serious look?

According to Sen. Charles Grassley, the U.S. Supreme Court may need to fill another opening this summer. The Iowa Republican, Chairman of the Senate Judiciary Committee, did not name names, but rumors are swirling it could be the Court’s swing vote, 80-year-old Anthony Kennedy.

If that occurs, President Trump will go back to his list of 21 potential nominees, now numbering 20 after the elevation of Neil Gorsuch. Rumored to be on the short list before Gorsuch’s selection was Judge William Pryor of Alabama from the 11th Circuit Court of Appeals, Judge Diane Sykes of Wisconsin from the 7th Circuit Court of Appeals, and Judge Thomas Hardiman of Pennsylvania from the 3rd Circuit Court of Appeals.

If those rumors are true, will those three again go to the top? How about some of the others? Also on the Trump list are Florida Supreme Court Justice Charles Canady and Judge Federico Moreno from the Southern District of Florida.

The next nominee will be an appeals court judge or a state supreme court justice. Moreno and Utah Republican Senator Mike Lee are the only two not fitting that description. Moreno’s logical next step is a promotion to the court of appeals.

Will Canady receive serious consideration this time? He has similar educational training to the current Court.

All 9 current justices studied law at either Harvard or Yale (Ruth Bader Ginsburg started at Harvard, but earned her law degree from Columbia). Canady received his degree from Yale, while Pryor came from Tulane, Sykes from Marquette, and Hardiman from Georgetown. Gorsuch attended Harvard and Oxford.

As a former state legislator, four-term Congressman and General Counsel for Gov. Jeb Bush, Canady understands the separation of powers between the three branches of government. He was Chief Justice from 2010-2012 and along with Ricky Polston, comprise the Court’s reliable conservative minority.

If Gov. Rick Scott wanted to bend Trump’s ear about Canady, the President would certainly listen. There is no question Scott and Trump are of like minds on many topics in addition to jobs. Another Trump friend, Attorney General Pam Bondi, could do the same.

On the downside, Canady will be 63 years old in June. Next to Moreno (64) and Michigan Supreme Court Chief Justice Robert Young, who is 65, Canady is the oldest on the list.

Pryor is 55, Sykes 58 and Hardiman is 52. The thought of having someone on the bench for 30 years is an appealing quality for a sitting president.

Confirmation hearings would certainly be lively. Millennials will not likely recall the impeachment of President Bill Clinton, but Canady was one of the House prosecutors. Would Democrats have fun with that?

How about being questioned by Judiciary Committee member Lindsey Graham? The South Carolina Republican was also one of the impeachment prosecutors (known as House Managers).

How juicy would it be for Canady to be tapped and for Charlie Crist to receive some credit for raising Canady’s profile? It was then-Governor Crist who appointed Canady to the Florida Supreme Court.

Perhaps Canady wound up on Trump’s list as a favor to Scott, or the president will actually give him a serious look. No one has retired yet, but that doesn’t stop playing the “what ifs” game in the meantime.

Families of homicide victims, ACLU, Janet Cruz join filers in Aramis Ayala case

Friends of the court are beginning to crowd into the Florida Supreme Court case pitting Orlando’s State Attorney Aramis Ayala and Gov. Rick Scott, with families of homicide victims siding with Scott, and the ACLU and House Minority Leader Janet Cruz siding with Ayala on Friday.

Several filings Friday are loading the case with friends. Also Friday, a group of more than 40 former judges and prosecutors filed a brief supporting Ayala’s case, and a group of Democratic Florida lawmakers filed their promised brief supporting her.

Now on the way is a brief from family members of homicide victims including those of Orlando Police Lt. Debra Clayton and Sade Dixon, who asked the court for permission to file their brief supporting Scott.

And a coalition of several groups led by the ACLU asked to file on Ayala’s behalf Friday.

Cruz filed requesting to join the group of Democratic lawmakers, led by Senate Minority Leader Oscar Braynon, supporting Ayala.

Those are all in addition to amicus briefs filed or pledged by another coalition of groups supporting Ayala, and the Florida Prosecuting Attorneys Association and the Florida House of Representatives supporting Scott.

Ayala and Scott are battling over whether she has the right to refuse to pursue death penalty prosecutions in her 9th Judicial Circuit, as she has declared; and whether he has the right to intervene and reassign her potential death-penalty cases to other state attorneys. He has reassigned 23 of her first-degree murder cases to State Attorney Brad King of Florida’s 5th Judicial Circuit. She has petitioned the Florida Supreme Court to determine if he can do so, and has sued Scott in federal court.

The homicide victims’ families include those of Clayton and Dixon, who were slain in January in a case that sparked outrage throughout Central Florida, and then fired a storm against Ayala when she announced in March that she would not seek any death penalty prosecutions, starting with that case against suspect Markeith Loyd. Others seeking to file in support of Scott include the families of 9th Judicial Circuit homicide victims Darrell Avant Jr., Jasmine Samuel, Elena Ortega, Alexandria Fransa Chery, and Teresa Ann Green.

The Supreme Court granted their requests Friday. They’ve promised to file their brief by May 3.

“The Family Members have special rights afforded by the Florida Constitution and statutes. The Florida Supreme Court would benefit greatly from the unique perspective of this group so seriously affected by the Petitioner’s refusal to consider their constitutional and statutory rights,” their filing states.

“Family Members can provide the Court useful insight regarding the Petitioner’s disregard of a homicide victim’s family’s rights and input in making prosecution decisions,” the filing continues.

The other new request for a friend of court brief came from a coalition including the American Civil Liberties Union Capital Punishment Project, the American Civil Liberties Union of Florida, Floridians for Alternatives to the Death Penalty, the Sentencing Project, and the NAACP Legal Defense and Educational Fund.

Earlier the Florida State Conference of the NAACP had filed a friend-of-the-court brief favoring Ayala, as part of a coalition that was formed and is led by The Advancement Project’s National Office.

The ACLU coalition request also was approved right away Friday.

“The proposed amicus curiae brief would address the crucial question of the Governor’s authority to reassign 23 capital cases from State Attorney Ayala to a different State attorney not elected by the people of the Ninth Judicial Circuit,” The ACLU request states. “It will further address why the Governor lacks authority to reassign the cases, as he claims, under Section 27.14, Florida Statute.”

 

More than 40 top judicial, prosecutorial officials to file in support of Aramis Ayala

A group of more than 40 former Florida Supreme Court justices, and judges, prosecutors and legal officials from throughout the country are filing an amicus brief supporting Orlando’s State Attorney Aramis Ayala in her power-struggle with Gov. Rick Scott, contending that the issues in their court battles are of national importance.

“By seeking to remove Ayala from all cases that might implicate the death penalty, the Governor does serious damage to the fundamental values of separation of powers and the democratic process, and threatens the bedrock principle of prosecutorial independence upon which much of our criminal justice system rests,” the brief argues.

The group includes former Florida Supreme Court justices Harry Lee Anstead, Rosemary Barkett, Gerald Kogan, and James E.C. Perry; former United States Solicitors General Walter Dellinger, Donald B. Verrilli, Jr., and Seth Waxman; four former Supreme Court justices from other states; five current or former state attorneys general from other states, and dozens of current or former judges, prosecutors, and justice officials from throughout the country. Anstead, Barkett and Kogan are former chief justices of the Florida Supreme Court.

Ayala and Scott are battling over whether she has the right to refuse to pursue death penalty prosecutions in her 9th Judicial Circuit, as she has declared; and whether he has the right to intervene and reassign her potential death-penalty cases to other state attorneys. He has reassigned 23 of her first-degree murder cases to State Attorney Brad King of Florida’s 5th Judicial Circuit. She has petitioned the Florida Supreme Court to determine if he can do so, and has sued Scott in federal court.

Scott’s action “is a dangerous, dangerous thing,” former Florida Chief Justice Kogan, who left the Florida Supreme Court in 1999, said to FloridaPolitics.com.

“Let’s assume for a moment that the governor did have the authority to move a state attorney or a district attorney off the case. What’s going to happen, it may not be limited in the long run to capital cases. It could be any case,” said Kogan, a former capital crimes prosecutor and criminal justice chief judge in Miami-Dade County. “So absolutely, you could have the governor as the one who is going to be running the prosecution in that particular state. That’s not what we have, with the balance of power and three equal parts of government philosophy.”

Such a precedent in authority could even lead to the point of the governor controlling prosecutions of overtly political cases, steering them to friendly prosecutors, he cautioned.

The group of judicial and prosecutorial officials intends to file their brief supporting Ayala in the Florida Supreme Court case, arguing that the traditional concept of prosecutorial independence is at stake, not just in Florida but nationally.

“The Florida Constitution establishes a decentralized prosecutorial system, which ensures that prosecutorial decisions will be made at the local level without interference from statewide officials,” the brief argues. Scott’s intervention, it charges, “usurps the will of Florida voters and the interests of justice.”

Written by Verrilli, former United States solicitor general under President Barack Obama and now a partner in Munger, Tolles & Olson in Washington D.C., the brief argues that Ayala has the discretion to decide whether to ever seek a death sentence and to establish an office policy on the matter.

It states, “Across the country, prosecutors routinely exercise their discretion by articulating a general policy regarding charging, diversion, sentencing, and enforcement priorities.”

The brief cites relevant policies created by head prosecutors in jurisdictions across the country, including Oregon, New York, and Chicago.

Oscar Braynon, four other Democrats, set to file in support of Aramis Ayala

Five Democratic lawmakers led by Senate Minority Leader Oscar Braynon are preparing to file a brief with the Florida Supreme Court in support of Orlando’s State Attorney Aramis Ayala in her effort to challenge Gov. Rick Scott‘s power to take cases away from her.

Braynon, state Sens. Jeff Clemens, Perry Thurston, and Gary Farmer, and state Rep. Sean Shaw all filed a request Thursday with the Supreme Court to enter an amicus brief supporting Ayala and opposing Scott. The court quickly approved it.

Braynon is from Miami Gardens; Clemens, Lake Worth; Thurston and Farmer from Fort Lauderdale and Shaw from Tampa.

They explicitly stated in their friend-of-the-court brief would “provide an alternative perspective to that of amici Florida House of Representatives.” The Florida House, under the leadership of Speaker Richard Corcoran, also has sought and received court permission to enter an amicus brief, theirs on the side of Scott. That brief has not yet been filed.

The matter involves Ayala’s announcement that she would not pursue death penalty prosecutions, and Scott’s response of signing executive orders to reassign 23 first-degree murder cases from her in the 9th Judicial Circuit to State Attorney Brad King in the 5th Judicial Circuit. Ayala filed a complaint with the Supreme Court last week seeking writ of warrento, seeking to force Scott to prove he has the authority to do so.

The Democratic lawmakers alternative brief, according to the request filed Thursday,  “would address whether Governor Scott acted within the authority provided under Article IV, Section 1, Florida Constitution, and Section 27.14, Florida Statutes, when he issued executive orders that assigned another State Attorney to discharge the duties of the Petitioner Ayala with respect to a specific case or class of cases is whether there is ‘any good and sufficient reason the Governor thinks that the ends of justice would best be served.’ Austin v. State, 310 So. 2d 289, 292 (Fla. 1975).”

The Democrats expect to have their brief filed by Friday.

 

 

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