TALLAHASSEE — Orlando prosecutor Aramis Ayala on Wednesday defended her "absolute discretion" to never seek the death penalty in murder cases, as skeptical justices of the Florida Supreme Court bombarded her lawyer with sharp questions.
Ayala claims that Gov. Rick Scott violated state law when he transferred two dozen murder cases to another prosecutor, and she wants the court to return the cases to her office.
"No such authority exists," Ayala's attorney, Roy Austin, flatly told justices in a packed courtroom, calling the shifted cases "stolen."
Ayala sued Scott, but it was Ayala who was on the defensive Wednesday.
If a prosecutor can adopt a "blanket policy" of never seeking a death sentence, Chief Justice Jorge Labarga asked, "Why do we need a Legislature?"
Justice Charles Canady, a former Republican member of Congress and state legislator, took issue with Ayala's "absolutist" position, and noted that a governor can suspend a state attorney for misfeasance.
"Why couldn't this be viewed as an instance of misfeasance?" Canady asked.
Having served as legal adviser to former Gov. Jeb Bush, Canady has wide knowledge of the reassignment of cases between state attorneys.
The court's newest justice, C. Alan Lawson, questioned the assertion by Austin that Ayala is not challenging the law that Scott cited for his actions.
"The statute says he (Scott) can do this," said Lawson, who Scott appointed late last year.
The state's high court devotes the bulk of its time to reviewing appeals of death sentences. The death penalty has been in disarray for two years after the U.S. Supreme Court struck down the limited role of juries as unconstitutional.
Ayala, a Democrat, was elected last November as state attorney for Orange and Osceola counties in the Ninth Judicial Circuit. She's the first African-American state attorney in Florida's 172 years of statehood.
Scott, a Republican, may run for U.S. Senate next year. In his seven years as governor, he has signed death warrants that led to 23 executions, the most of any governor since Florida reinstituted the death penalty in the 1970s.
As of Wednesday, Florida had 367 inmates on death row. Due to protracted legal problems and changes to the death penalty law, there have been no executions in 18 months.
Ayala never mentioned her opposition to the death penalty in her campaign. But at a news conference in March, she said she would not seek the ultimate punishment.
She said it "has no public safety benefit," has been in "legal chaos" for two years, and that some inmates wait more than 30 years to be executed.
"My duty is to seek justice, which is fairness, objectivity and decency," Ayala said. "There is no evidence that death sentences actually protect the public."
In response, Scott asked Ayala to recuse herself from pending first-degree murder cases.
When she refused, Scott transferred two dozen capital cases to another prosecutor, Brad King of Ocala, a vocal proponent of capital punishment.
One of those cases is Markeith Loyd, who is accused of murdering a pregnant former girlfriend and an Orlando police officer, Lt. Debra Clayton.
Scott resisted demands by a number of Republican state legislators to suspend Ayala from office.
The case has drawn extensive media attention, and political leaders, legal experts and the families of murder victims have filed briefs on both sides of the issue.
Defending Scott, Florida Solicitor General Amit Agarwal, who works for Attorney General Pam Bondi, said state law clearly gives the governor the power to take action against any state attorney for any "good and sufficient reason (that) the ends of justice would be best served."
Scott's lawyer said Ayala's "blanket policy" nullifies a law enacted by the Legislature.
"No one individual in our society has the right to say, 'I've taken a hard look at this ... and I'm going to make a policy judgment that is blanket, across the board,'" Agarwal told the court.
Agarwal also declared as untrue a claim by Ayala's attorney that no governor has reassigned a case from one prosecutor to another without their consent.
The state filed an affidavit from Susan Smith, a long-time staff member on the governor's legal staff, who cited cases in which a state prosecutor's selective prosecution of drunk driving cases led to reassignments.
The only justice whose questions seemed sympathetic to Ayala was Barbara Pariente, a critic of the death penalty in previous cases, who said it is obvious that some counties pursue death sentences more aggressively than others.
But a skeptical Justice Fred Lewis asked Ayala's attorney if a prosecutor could also refuse to enforce DUI laws. It's unclear when the court will decide the case.
The courtroom, across the street from the state Capitol, was packed for oral arguments, with groups of visiting teachers and high school 4H members.
Three other elected state attorneys, all of whom oppose Ayala's stand, sat next to her in the front row.
As she left the courthouse, Ayala told reporters: "I violated no laws ... I did what I believed was proper under Florida law."
Miami Herald staff writer Martin Vassolo contributed to this report. Contact Steve Bousquet at [email protected] Follow @stevebousquet.