Florida Supreme Court Archives - Florida Politics

Justices rejects Florida appeal over death penalty

The Supreme Court has left in place a lower court ruling that said imposing a death sentence in Florida requires a unanimous jury.

The justices on Monday turned away an appeal from Florida officials seeking to overturn the ruling last year from the state’s highest court.

The Florida Supreme Court had struck down a newly enacted law allowing a defendant to be sentenced to death as long as 10 out of 12 jurors recommend it. That ruling concluded that Timothy Lee Hurst — convicted of a 1998 murder at a Pensacola Popeye’s restaurant— deserves a new sentencing hearing.

Last year, the U.S. Supreme Court declared Florida’s death penalty sentencing law unconstitutional. State legislators responded by overhauling the law.

Republished with permission of The Associated Press.

slot machines

Pari-mutuels subdued on next steps after Supreme Court slots decision

With the state Supreme Court’s decision last week striking down the possibility of a slot machine expansion, what’s next?

A unanimous court ruled against pari-mutuels seeking to add slot machines in counties that passed a referendum in support of them: Brevard, Duval, Gadsden, Hamilton, Lee, Palm Beach, St. Lucie and Washington.

Those concerns are holding their plans close to the vest, at least publicly.

That includes bestbet in Jacksonville, which unsuccessfully applied to the state for a slots license.

Spokesman Brian Hughes told the Times-Union’s Tia Mitchell last week that “the company was disappointed by the ruling but hopeful that the Legislature will pass new laws that negate its effect.”

“Something it clearly demonstrates is that the Legislature still has an opportunity to respect the will of the people at the local level,” Hughes told the paper.

But lawmakers have been sequentially unable to pass new gambling laws for years, the most recent attempt ending in impasse this Legislative Session.

The Senate declined to back down on its insistence that slots should be expanded to pari-mutuels in counties that approved them, while the House opposed such a move.

The track that brought the litigation, Creek Entertainment/Gretna in Gadsden County, said it was “disappointed” in the ruling, but didn’t hint what it might do.

“Because of this ruling, we are now unable to create new jobs,” spokeswoman Sarah Bascom said. “We are considering our options on how to proceed.”

Izzy Havenick, a member of the family that owns Naples Fort Myers Greyhound Racing & Poker in Bonita Springs, said he too will go back to the drawing board with lawmakers.

Lee County passed a slots referendum with almost 63 percent of the vote in November 2012; turnout that election was nearly 69 percent.

“What do we do? We go back to the Legislature next year and hope they honor the will of the people,” Havenick said.

And according to TCPalm, Fort Pierce Jai-Alai & Poker in St. Lucie “wants to invest $100 million to expand its facility into an entertainment complex (that) owner Casino Miami says would employ about 500 people, but only if it can add 1,000 slots.”

A representative for Casino Miami couldn’t be reached Friday.

Florida Supreme Court rules against Gretna track, slots expansion

A unanimous Florida Supreme Court has ruled against a North Florida racetrack seeking to add slot machines.

The 20-page decision, released Thursday, means that gambling facilities in Gadsden County’s Gretna and in seven other counties that passed local referendums allowing slots also will not be able to offer them.

In doing so, the court upheld a decision by the 1st District Court of Appeal that agreed with state gambling regulators who denied the track a slots permit.

In sum, the ruling comes as a loss for the state’s pari-mutuels and a win for gambling expansion opponents. If it had gone the other way, the decision might have led to the single biggest gambling expansion in the state.

“The good news is there will not be thousands of slot machines coming to Florida without further action by the legislature,” said John Sowinski, president of the No Casinos anti-gambling expansion group.

Sowinski also chairs Voters in Charge, a political committee trying to get a proposed constitutional amendment on the 2018 statewide ballot to give voters “the exclusive right to decide whether to authorize casino gambling.”

Lawmakers, many of whom have bitterly complained of judicial overreach into policy, failed to agree on a comprehensive overhaul of the state’s gambling laws this Legislative Session.

*   *   *

At issue in the Gretna case was “whether local voters can authorize the operation of slot machines in counties outside of Dade and Broward.”

Statewide voters in 2004 approved a constitutional amendment legalizing slots at existing jai-alai frontons and horse and dog racetracks only in those counties and only if voters there OK’d it in referendums there.

Since then, voters in Brevard, Duval, Gadsden, Hamilton, Lee, Palm Beach, St. Lucie and Washington counties approved slots.

But the opinion, authored by Justice Charles Canady, found that “nothing in (state gambling law) grants any authority to regulate slot machine gaming to any county.”

Specifically, the “general power of non-charter counties to ‘carry on county government’ does not constitute authorization to conduct a referendum to approve slot machine gaming,” the opinion said.

(“Charters are formal written documents that confer powers, duties, or privileges on the county,” according to the Florida Association of Counties.)

Chief Justice Jorge Labarga and Justices C. Alan Lawson, Barbara Pariente and Ricky Polston concurred in the decision. Justice Peggy A. Quince had been recused.

Oral argument in the case was last June but Lawson, appointed to the court in December to replace retired Justice James E.C. Perry, “fully participated after reviewing all of the materials including the oral argument video,” spokesman Craig Waters said.

Justice R. Fred Lewis also concurred, but wrote separately to note “the confusion in this area of the law.”

“Because slot machines are generally prohibited, Gadsden County does not have and cannot assert home rule powers as a basis to support a referendum on slot machine gambling,” he wrote.

Any other construction of the law is “misplaced,” he added.

*   *   *

The horse track, known as Creek Entertainment/Gretna, is managed and operated by the Poarch Band of Creek Indians. Spokeswoman Sarah Bascom said they were “disappointed the Florida Supreme Court did not agree with our interpretation of the law.”

“Because of this ruling, we are now unable to create new jobs,” she said. “We are considering our options on how to proceed.”

Track lawyer Marc Dunbar, also a part owner, told justices in oral argument that the Legislature intended to allow for an expansion of slot machines in the state, saying counties were empowered under state law to decide whether to allow slots.

The track, about 30 miles west of Tallahassee, had asked the court to let it have slot machines because voters approved them in 2012.

Attorney Dan Gelber, the former House Democratic leader who represented No Casinos at argument, countered that lawmakers “would not have allowed slots but for that constitutional amendment.” He served in the House 2000-08.

“The idea that in implementing that amendment that they would, under the table, give 65 other counties that same right is sort of absurd,” he said. “If that had happened, I know a couple of my colleagues’ heads would have exploded.”

A decision the other way also likely would have broken the exclusivity to slots outside of South Florida enjoyed by the Seminole Tribe of Florida. That would have entitled the Tribe to reduce or stop paying money to the state.

“The Tribe is continuing to review the decision, but it looks like very good news for the State of Florida and for the Seminole Tribe,” spokesman Gary Bitner said.

And Stephen Lawson, spokesman for the Florida Department of Business and Professional Regulation, which regulates gambling, said the agency was “pleased that the Florida Supreme Court agreed with us on this important issue.”

“We will continue to follow the law,” he added.

Chris Sprowls looks back on successful 2017 Session

Now that the 2017 Legislative Session is in the history books (for the most part), Florida lawmakers are beginning to take stock. And Palm Harbor Republican Chris Sprowls is no different.

Sprowls offers his own post-Session review, in an email to supporters highlighting some of his major legislative actions in the House over the past year.

At the top of the list is HB 221, the landmark ride-sharing legislation co-sponsored by Sprowls and recently signed into law by Gov. Rick Scott.

The measure creates a statewide standard for companies like Uber and Lyft, which Sprowls says “ensures safety, convenience, and consistency.”

“I am proud of this bill because it guarantees that anyone in Florida has access to this convenient transportation option should they choose it, in addition to providing an extra source of income for many Floridians looking to make ends meet.

Inspiring Sprowls to bring the bill were conversations with Floridians “who love driving for rideshare companies,” particularly for its flexibility in work times — perfect for people such as single parents, veterans, college students and others.

HB 221 opens the market for ride-sharing jobs, as well as offering a “convenient mode of transportation for Floridians and vacationers alike.”

Most notably, this bill can be a template for ride-sharing bills across the country, Sprowls says.

Another legislative success were reforms to Florida’s death penalty statute, ensuring the state has a “working death penalty law.”

In October 2016, the Florida Supreme Court ruled the state’s death penalty law unconstitutional — throwing the process into legal ambiguity, putting capital cases in a state of limbo.

Sprowls, a former state attorney, saw this legal instability as a disservice to all involved. HB 527 fixed the state death penalty statute, bringing the law in-line with Constitutional requirements.

Sprowls also introduced legislation to honor Officer Charles Kondek, killed December 2014 in the line of duty.

“Officer Kondek had a decades-long career serving our community,” Sprowls writes, “and it is only fitting that we rename a portion of Alternate 19 so that we always remember his service, sacrifice and legacy.”

The “Officer Charles ‘Charlie K’ Kondek Jr. Memorial Highway” is at U.S. 19A/S.R 595 between Tarpon Avenue and the Pasco County line in Pinellas County.

Sprowls was also among the lawmakers sponsoring a formal apology to the Groveland Four from the 1940s, as well as to the Dozier Boys who suffered torture and abuse at the Dozier School for Boys.

“It was an honor to have the families of the Groveland Four, and the remaining survivors of the Dozier School in Tallahassee a few weeks ago to hear their stories and witness the closure they have so long awaited,” Sprowls writes.

Other victories for Sprowls in the 2017 Session were in ethics and government spending reforms, including passage of sweeping ethics changes and a lobbying ban that is the strictest in the country.

Similarly, Sprowls takes sides in the fight over incentive program funding, touting his support for a state budget which puts an end to “state-funded corporate welfare.”

“Government should not be in the business of picking winners and losers,” he writes, “and Enterprise Florida was using your tax dollars to subsidize the operations of large businesses.”

Sprowls, who is in line to be House Speaker in 2020-22, notes that Enterprise Florida has seen a $1.2 million increase in payroll without showing similar gains in job creation.

While Enterprise Florida was intended to be a public-private partnership, Sprowls says that it is indeed funded 90 percent by taxpayers.

“We as a Legislature are tasked with ensuring your hard-earned money is spent wisely and efficiently,” he writes. “Enterprise Florida’s use of your tax dollars was neither.”

Jax House member Jay Fant launches campaign for Attorney General

Jacksonville House member Jay Fant announced for state Attorney General Tuesday, promising to fight for the Constitution — especially the First and Second amendments — and against “big government.”

Fant said during a kickoff news conference in the state Capitol that “fighting big government, fighting for the Constitution, and fighting for free enterprise” were what drove him to seek his House seat in 2014.

“My zeal for protecting property and people has not abated. Today, because if this, I am announcing my candidacy for attorney general of the state of Florida,” he said.

“I highlight the First and Second amendments because they are the bellwether for our freedoms. And when you attack those freedoms, you attack America, itself.”

The legislator, little known outside his Jacksonville hometown, planned to travel the state extensively to build name recognition. Following his Tallahassee opener, he scheduled campaign events in Tampa, Orlando, and Jacksonville.

“I will be on the road. I will be in great cities across the state, starting today, through the Panhandle and down south,” Fant said. “This will be a grassroots campaign. This will be a campaign where people know who Jay Fant is because they have met him.”

Fant is a graduate of Washington & Lee University and holds a law degree from the University of Florida. He and wife Lauren have four children, whom they home-school.

Fant was chairman and CEO of First Guaranty Bank & Trust Co. of Jacksonville when it failed in 2012. Now he’s chairman of Caroline Family Office, a financial services company.

The bank failure inspired him to seek office, he said.

“The federal government bailed out big banks and left little, small, community, mainstream banks like mine out in the cold. Our company couldn’t make it. Big government is not about Main Street. And I vowed to never let that happen to anybody else.”

As A.G., Fant would “root out corporate scams that prey on the elderly and vulnerable.”

“There are bad guys out there, but I will find them,” he said.

He praised Florida Supreme Court justices Charles Canady and Ricky Polston as non-activist jurists. C. Alan Lawson, elevated by Gov. Rick Scott to the state high court, and Eric Eisnaugle, a House member named this week as Lawson’s replacement on the 5th DCA, also meet that test, Fant said.

“The way to fight judicial activism is to appoint good judges,” he said. “So a note to all the rogue judges and rogue agencies who promulgate rules and make rulings outside the bounds of the separation of powers — your future attorney general will have a cadre of lawyers watching you. I am running because I believe so strongly in defending our constitutional rights and protecting Floridians from the excesses of the federal government. But that can only happen if we make sure government is on the side of the people.

“We will fight to keep our business climate free and fair so entrepreneurs can pursue their dreams and create jobs. We will stand by our law enforcement community that works so hard to keep us safe.”

He promised to follow through with sitting Attorney General Pam Bondi’s programs.

“I will continue Attorney General Bondi’s fight against prescription drug abuse, human trafficking, and predators who target seniors and children. I will keep pushing back against the federal overreach that chokes our small businesses,” Fant said. “And the most vulnerable members of our society can count on me.”

Asked about Bondi’s decision not to pursue her political ally Donald Trump over alleged fraud at Trump University, Fant declined to second-guess the incumbent.

“Whether that rose to the level of warranting their investigation in that office, I’m not privy to those discussions, and I’ll have to honor her decision on that.”

He praised Bondi’s legal challenges to Obama administration programs.

“As attorney general, I’ll defend our states’ rights every step of the way,” he said.

Appropriations chiefs declare budget talks ‘closed’ — but with an asterisk

House and Senate budget negotiators traded final offers Thursday and pronounced their work done, bar some last-minute tidying up.

“The budget is closed,” Senate Appropriations Chairman Jack Lavala said.

“We’ve got a couple of question marks, but this is not an opportunity to entertain any new issues. We’re going to resolve one or two issues, and then we’re going to come back together and get those solved,” he said.

“The cupboard is bare.”

Left to do is reconcile conforming bills on topics including PreK-12 and higher education and state worker pay raises.

“They are currently in the final stages of drafting. I think they’ll probably be printed later on this evening. Public hearing Friday, Monday, as soon as we possibly can. We want to give the public ample opportunity to review them. We’re not going to drop them 30 minutes before the meeting,” House budget chief Carlos Trujillo said.

The conferees reduced a proposed $300 million cut to hospital Medicaid reimbursement rates by $50 —which, accounting for the federal match — will leave the hospitals $600 million poorer.

But they still are figuring out how to apply the cut, Trujillo said.

The health and human services budget was the last big roadblock to a compromise $83 billion budget. The breakthrough didn’t come in time to meet the Legislature’s deadline for adjournment Friday, so the House and Senate agreed to extend the session into Friday.

Negotiators need to clear up “one or two big issues that may have been put in the wrong place on the spreadsheet,” Latvala said.

“It’s a lot of money. We just want to be right about what we do.”

Senate negotiators accepted House proviso language requiring an audit of the Tampa International Airport expansion. The chamber had rejected a Sen. Tom Lee amendment to audit the project on April 17.

Additional proviso language requires the Florida Supreme Court to issue a report each year to the governor, speaker of the House, and president of the Senate on the number of cases that remain on its docket for more than 180 days.

The item was a high priority for House leaders and passed both chambers — although the Senate tacked on an amendment expanding the use of juvenile civil citations that the House had yet to accept as of Thursday.

“That’s a House speaker initiative. But, actually, I don’t disagree with that,” Latvala said.

Update: The conferees reconvened Thursday evening to resolve their remaining technical differences, and to add nearly $2.5 million in last minute projects, including a rodeo facility in Arcadia, canal improvements in Florida City, and the Urban League.

“The budget is closed,” Latvala said. “It should be on the desk tomorrow morning. No more. No more. The budget is closed.”

House argues prosecutors have no discretion on death penalties

In a friend of the court brief bound to raise state attorneys’ eyebrows throughout Florida, the Florida House is arguing that prosecutors have no discretion with regard to capital punishment, that the state Legislature’s intent was to rest all discretion with juries.

The House filed the brief in the Florida Supreme Court case of Orlando’s State Attorney Aramis Ayala versus Gov. Rick Scott. The issues, in that case, are whether prosecutorial discretion gives Ayala the power to refuse all capital punishment prosecutions, as she’s done; and whether the governor has the right to strip capital cases away from her, as he’s consequently done.

The brief, filed late Wednesday, argues that a state attorney is not the one to decide on death penalties. It contends the state attorney’s role is more clerical, to review facts of a case to determine if aggravating circumstances exist that could merit a death penalty, and then leave the decision of death or life in prison entirely up to the jury.

The House of Representatives is one of the numerous bodies filing amicus curiae briefs in the case, indicating the enormous ramifications the legal battle holds for prosecutors, the governor, and the Florida Legislature. Among others expected is a dissenting brief from several Democratic members of the House and Florida Senate.

The official House brief declares, “the policy of this State, reflected in legislative enactments, reserves to the jury — speaking for the community and reflecting that community’s values — the threshold decision whether death should be an authorized punishment for a capital murder conviction. A state attorney, by contrast, has no authority to abrogate the Legislature’s death penalty policy within her circuit.”

Ayala’s lead attorney, Roy L. Austin Jr., called the House argument “stunning.”

“This is a stunning position that calls for an unconstitutional interpretation of the Florida statutes, not to mention contradicting the positions and pleadings from the governor, the attorney general, the FPAA and every state attorney in Florida,” Austin said in a written statement to Orlando-Rising.com.

On March 16, Ayala, the newly-elected state attorney for Florida’s 9th Judicial Circuit, covering Orange and Osceola counties, announced that she had reviewed Florida’s laws, court decisions, and the opinions of various parties to conclude that Florida’s death sentence law was not just for anyone, so she would not use it. Scott responded by stripping 23 cases from her and reassigning them to State Attorney Brad King of Florida’s 5th Judicial Circuit.

Ayala sued, both in the state Supreme Court and in U.S. District Court, asserting her rights under the doctrine of prosecutorial discretion, and challenging Scott’s authority to reassign cases if she had not violated any laws.

At issue in most of the filings so far is whether prosecutorial discretion could be exercised before or after Ayala or any other prosecutor reviewed all the facts of the case and weighed aggravating and mitigating circumstances.

But the House argued that the prosecutor does not have discretion, even after he or she reviews the facts of a case. That could fly in the face of the common practice among prosecutors, who often weigh a number of factors, from victims’ families desires to potential plea bargains, in deciding whether to pursue death penalty prosecutions.

In the brief, a section title lays it out bluntly: “The Legislature’s capital sentencing scheme leaves no discretion to the state attorney to assess whether death should be an authorized punishment in a capital murder case.”

In another argument that may make state attorneys uncomfortable, the House also challenged the independence of state attorneys.

Citing a 1939 Florida Supreme Court Decision and several statutes, the brief argues that a “state attorney in this State is not merely a prosecuting officer in the Circuit in which he is; he is also an officer of the State in the general matter of the enforcement of the criminal law. … It is the State, and not the County, that pays his salary and official expense. And when a state officer like the petitioner refuses or is unable to follow the State’s policies as set by the Legislature, the Legislature fairly can expect that either the Governor, or a chief circuit judge, will find someone who will.”

Orlando-area judge ordered suspended for campaign ad

The Florida Supreme Court on Thursday ordered a 90-day unpaid suspension and public reprimand for an Orlando-area judge who “circulated a deceptive, misleading advertisement.”

Shepard

The court’s hearing panel also suggested paranoia on the part of Circuit Judge Kimberly Shepard, who believed “sinister forces (were) at work” trying to defeat her, they said.

Shepard previously was a Democratic state representative, serving one term in 1992-94 before being ousted by Republican challenger Allen Trovillion. She ran for a 9th Circuit Court judgeship and won in 2014, now sitting in Orange County.

During the campaign, she handed out fliers that “implied that the Orlando Sentinel had endorsed Ms. Shepard, when it had, in fact, endorsed her opponent,” Norberto Katz, according to a report by a hearing panel of the Judicial Qualifications Commission.

“The advertisement’s language was taken from a 1994 endorsement for Ms. Shepard for a legislative race, without disclosing the date and office to which it applied,” it added.

The court’s order also said Shepard “has not shown any remorse for her misconduct” and “has not apologized or acknowledged her wrongdoing.”

But it said her “conduct does not warrant the ultimate discipline of removal from office,” explaining that she “did not make numerous misrepresentations in her campaign materials or engage in campaign finance violations.”

The judicial conduct hearing panel previously reported that her response to the ethics investigation against her “reflects a fear of sinister forces at work conniving at her defeat.”

“The ‘existence’ of these forces—and their alignment against her—appear to justify in her mind her behavior in both the underlying matter and this proceeding,” its report said.

 

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.

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