Florida's Governor Was Wrong For Removing First African American State Attorney From High Profile Murder Case

Jerry GirleyBy Jerry Girley, Attorney
Recently the State Attorney Aramis Ayala announced that she was not going to seek the death penalty in the Markeith Loyd prosecution. She also announced that she does not intend to seek the death penalty in any case while she serves as the State Attorney. This announcement triggered a firestorm of criticism and second guessing that ultimately culminated in Governor Scott replacing her as the prosecuting attorney in the Markeith Loyd matter. Reasonable people have voiced their concerns both for and against her decision.

Similarly, well-intentioned people have voiced support as well as opposition to the governor's decision. Among her critics, there is a sense that, as a candidate, she intentionally concealed her true feelings about the death penalty. Within the law enforcement community, there is outrage and almost universal condemnation of her actions. I recognize the right of law enforcement to express their dismay and discontent. However, discontent or disagreement with the exercise of prosecutorial discretion does not form a basis for a claim that she committed prosecutorial misconduct.

To the extent that voters believe they were misled about the State Attorney's views on the death penalty, it raises an issue between the State Attorney and the voters. The voters will have an opportunity to express their views about that in the next election. My thought, however, is the main issue is not whether the State Attorney made the right decision with respect to the Markeith Loyd case. Rather, it is whether she had the statutory or constructional authority to make such a decision. In the case of State v. Bloom, the Florida Supreme Court spoke directly to this issue. The Florida Supreme Court said, "under the Florida Constitution, the decision to charge and prosecute a crime is an executive responsibility and the State Attorney has complete discretion in deciding whether or how to prosecute." The exercise of this authority is central to the smooth operation of the criminal justice system. Without it the court system would completely shut down. There are not enough judges or courtrooms to conduct trials for everyone that is arrested.

A secondary question in this matter is, does either the Florida Statutes or the Florida Constitution require a State Attorney to express support for a particular form of punishment? I have not been able to find a single Florida statute or a case that requires a State Attorney to be for or against a particular form of punishment. How then could the State Attorney's decision not to pursue the death penalty form a basis for a claim that she has somehow committed an act of malfeasances or misconduct? The short answer is it cannot. To the extent that the State Attorney's critics are calling for her removal from office they are unwittingly advocating for nothing less than the erosion of the office of the State Attorney. It is time for heated emotions and political gamesmanships to give way to calm thinking about what is best for the criminal justice system overall. Reason tell us that what is beneficial and necessary is for all other players in the State government to recognize and respect the State Attorney's prosecutorial discretion. There is no dispute that Florida statutes give the governor broad authority to re-assign a State Attorney if he or she is disqualified, or if there is good and sufficient cause to do so. But, the question is what constitutes good and sufficient cause? Is the governor's philosophical disagreement with a State Attorney's prosecutorial decision, "good and sufficient cause?" In my view, it clearly is not. Ultimately, the legislature and the courts will have to revisit this issue to answer the question of where does the governor's broad authority begin and end, particularly as it relates to the State Attorney's complete prosecutorial discretion?