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March 20, 2017

Continued consternation concerning capital charging decision in central Florida

I noted here on Friday the capital kerfuffle that has emerged in central Florida after newly-elected State Attorney Aramis Ayala announced that she would not pursue the death penalty for a cop killer or any other case during. As previously reported, Florida Governor Rick Scott reassigned the cop killer's case to another State Attorney.  But now, as this local article reports, today Ayala indicated she might try to contest having the case reassigned:

Orange-Osceola State Attorney Aramis Ayala on Monday said she is not willing to surrender the case of accused cop killer Markeith Loyd. Gov. Rick Scott removed her from the case Thursday, outraged when she said she would not seek the death penalty. He appointed a special prosecutor, Brad King.

At a court hearing in Orlando on Monday, Ayala sat one seat away from King, the state attorney for Florida’s Fifth Judicial Circuit. What the governor did was unprecedented, she told Orange-Osceola Chief Circuit Judge Frederick Lauten, and “overstepped his bounds.” She said she may file a legal challenge and asked the judge temporarily to halt the two murder cases involving Loyd while she figures out what to do.

Loyd is charged with killing Orlando police Lt. Debra Clayton on Jan. 9 and, several weeks earlier, his pregnant ex-girlfriend, Sade Dixon. Ayala said she at least wants to be part of Loyd’s prosecution.

More than 100 lawyers, including two former Florida Supreme Court justices and Gil Garcetti, who prosecuted celebrity O.J. Simpson during his 1995 murder trial, are backing Ayala. They have signed a letter asking Scott to give the case back to her. She is an independently elected official, and Scott is guilty of overreach, they say.

In Tallahassee, Scott defended his decision. When asked whether he would consider removing Ayala from office, he said, “We’ll continue to look at our options. Right now I’m focused on Markeith Loyd.” Asked if he would get involved in other potential death-penalty cases in Orange and Osceola counties, he said, “I’ll deal with that at the time.”

On Monday, the assistant finance director at the Seminole County Clerk of Court Office was placed on paid administrative leave after posting Facebook comments saying Ayala “should be tarred and feathered if not hung from a tree” because she refuses to seek the death penalty. Stan McCullars, author of the post, later deleted it. He could not be reached for comment. His boss, Grant Maloy, said those comments “don’t reflect my beliefs.”

Ayala is the first African-American state attorney in Florida and took office Jan. 3, serving Orange and Osceola counties. During her five-month election campaign, she did not state her position on the death penalty.

There are many interesting elements of this battle over prosecutorial discretion, and the intersection of race and gender and southern politics just adds layers to the story. And speaking of race, former prosecutor Chuck Hobbs has this interesting new Hill commentary on these matters which includes these interesting closing observations:

The irony in this is that the Black Lives Matter movement began in earnest after George Zimmerman was acquitted of murdering Trayvon Martin by a Sanford, Florida jury in 2013. A year before his acquittal, Gov. Scott replaced then Sanford State Attorney Norm Wolfinger with Jacksonville State Attorney Angela Corey after Wolfinger dragged his feet for almost 50 days before finally recusing himself. Scott's move back then was applauded by many black lawyers, civil rights activists and concerned citizens who wanted to ensure that the highest charges and attendant punishments would be sought against Zimmerman.

Today, Scott is being blasted by some lawyers and activists for meddling in Ayala's use of discretion not to seek the death penalty. Now the key distinction is that Wolfinger recused himself while Ayala did not, one that could lead to a fascinating legal battle where the courts may have to determine whether Scott illegally overreached by replacing Ayala, or whether her refusal to follow his dictates allowed him leave to replace her.

March 20, 2017 at 10:29 PM | Permalink


Interesting Doug. Let's put some context on this issue.

The District Attorney in Wake County, NC has tried eight capital trials in a row with no death verdict. She has made a public statement after the seventh one indicating she may not try cases capitally anymore. I wonder what she will say now.

The DA in Greensboro has said the same thing.

Under the NC Constitution, it is the responsibility to prosecute criminal cases, not the Governor's. Major separation of powers issue in Florida. The issue in this situation, seems to me, that if the State Attorney had limited her decision to the current case she would have a stronger position, rather than to announce a blanket policy of not trying people for capital murder.
Also, there is another of the many Apprendi issues here. The State Attorney is not saying she will not request a particular sentence to be imposed. She is saying she will not prosecute this defendant for a crime greater than murder simpliciter. If she decides not to prosecute a def for armed robbery and instead tries someone for common law robbery, can the governor trump that decision? No.


Posted by: bruce cunningham | Mar 21, 2017 6:38:12 AM

"responsibility of the State Attorney" to prosecute criminal cases, not the governor's. sorry

Posted by: bruce cunningham | Mar 21, 2017 6:39:44 AM

In this case, the prosecutor is devaluing black victims. Prosecutorial discretion is an euphemism for personal bias, in this case, racism. The murder victim, Lieutenant Clayton, was a much admired and beloved black police officer. The girlfriend had done nothing to the defendant.

The prosecutor is black and female, as were both victims. It shows how far a little Soros money will impact the lawyer, criminal coddler.

Posted by: David Behar | Mar 21, 2017 8:54:38 AM

Bruce. Worthless lawyer gibberish will not disguise your devaluation of black murder victims.

Posted by: David Behar | Mar 21, 2017 8:56:28 AM

Interesting--no one seems to be upset about the free speech rights of the government employee.

Posted by: federalist | Mar 21, 2017 9:25:52 AM

Behar a/k/a Supreme Claus, you are always going on about "black murder victims"; yet you incessantly rail against black bastardy. Do you even know any black persons? Have you ever had one in your home?

Posted by: Sarah | Mar 21, 2017 9:47:14 AM

Sarah. Try making a point.

Posted by: David Behar | Mar 21, 2017 10:02:06 AM

One criminal justice opinion handed down today. One opinion involving acting officials that might have some application to criminal justice matters. #SCOTUS

Posted by: Joe | Mar 21, 2017 11:34:53 AM


"Prosecutorial discretion is an euphemism for personal bias"

I certainly hope so. It sure would be odd if it were a euphemism for impersonal bias.

Posted by: Daniel | Mar 21, 2017 12:39:13 PM

@Daniel. It is also a euphemism for total lawyer incompetence and idiocy. There is no group in our nation that is stupider than the lawyer profession. Students in Life Skills class, learning to eat with utensils, and to put on shirts on their own, would represent a marked upgrade in decision making if placed on the Supreme Court. They would have 10 times the common sense than the mentally crippled lawyers now controlling it.

Robots running legislative enacted algorithms should be making all prosecutorial decisions. Death penalty, even in absentia, to anyone trying to hack one. As usual, only technology will rescue us from the plague of lawyers besieging this nation. Lawyer prosecutors can be re-hired to roll one into court.

Chess has 37 possible moves. Computers beat all humans long ago. Go, the Chinese board game, has a billion possible moves. Recently, a computer beat the best human Go player. It made a move the champion said no human could have thought of.

Legal decisions are far closer to the limited game of chess, than to the vast game of Go. A computer should even be able to look 10 moves ahead.

If people do not like the outcomes of computerized legal decisions, they have the recourse of electing legislators who will change the algorithms.

Computers making errors should be liable in torts, as should their programmers, as should the legislatures causing damages by their carelessness in writing the algorithm. Due to the nature of sentencing decisions, and the far higher standards of performance of a sentencing computer, the wrongful decisions should be subject to strict liability.

Posted by: David Behar | Mar 21, 2017 1:00:56 PM

Behar, a/k/a Supremacy Claus writes "There is no group in our nation that is stupider than the lawyer profession." This is his usual drivel. Hey, you misogynist twit, leave this blog already and check yourself in to the nearest asylum.

Posted by: Sarah | Mar 21, 2017 6:39:15 PM

Sarah. Why are you so upset? Sweetie, try to calm down.

Then, tell the class the fraction of your income that comes from government.

Posted by: David Behar | Mar 21, 2017 7:01:41 PM

"More than 100 lawyers, including two former Florida Supreme Court justices and Gil Garcetti, who prosecuted celebrity O.J. Simpson during his 1995 murder trial, are backing Ayala. They have signed a letter asking Scott to give the case back to her. She is an independently elected official, and Scott is guilty of overreach, they say."

None of the lawyers above or here wish to face the subject of the murder victims.

The defendant stood over Lt. Debra Clayton, and blasted her, multiple times. The lawyer is only thinking of his job, his lousy, hateful, morally disgusting job. The standard reply is, the lawyer is defending the constitution, not just this vicious murderer. That canard just makes people really angry by lawyer compounding tawdry, sick rent seeking with lying.


That was the admired and beloved police lieutenant, a black woman.

She was trying to arrest the defendant in a prolonged manhunt, after he shot his girlfriend, carrying his child, an innocent black baby. She was another beautiful black woman. Her mistake was to open the door. Her brother tried to help her and her terrorized children. He got shot.


I would support visits to the above 100 lawyers by a direct action group of family member of murder victims. There is no talking to people like them. They are defending the rent and have no human feeling. To deter.

Not a single word about the victims, two beautiful and beloved black women, not even from Prof. Berman.

Posted by: David Behar | Mar 21, 2017 7:22:00 PM

At first, Ayala stated that she would step aside as it was a legal order, indicating she knew it to be a legal order.

Now, she might challenge it?

Does anyone know under what executive power this was exercized in Fl?

Doug? Anybody?

These crimes were so horrendous, I suspect the overwhelming percentage of voters in that district support the death penalty for those murders and may result in Ayala being a one termer, which she, likely, already realizes.

I hope she doesn't challenge the order so the focus can remain on the innocent victims and not on Ayala.

Posted by: Dudley Sharp | Mar 22, 2017 9:44:26 AM


The only bias here may be the bias for Soros' money and against the death penalty, which are the same, in this case.

Posted by: Dudley Sharp | Mar 22, 2017 9:50:14 AM

Dudley: I have not gotten deeply into the intricacies of Florida law here, though I assume the fine folks in Florida will figure this out for all of us in the coming weeks.

Posted by: Doug B. | Mar 22, 2017 10:34:21 AM

Don't assume that seeking the death penalty is protecting the victims. In this case, that appears to be false. The now-removed prosecutor, not the governor, is watching out for the victims' wishes:

The family of Loyd’s pregnant ex-girlfriend, Sade Dixon, have said they agree with Ayala.

“You have to understand that we want closure. And with closure doesn’t mean to be dragged in and out of court with appeals and everything else,” Stephanie Dixon, Sade’s mother, said at a news conference Friday. “He will never see the light of day again. … If he doesn’t die of natural causes, I’m quite sure he will be tortured for his hideous crimes.”


Posted by: Stephen Hardwick | Mar 22, 2017 1:20:15 PM

Questions not being asked.

Why was he streeted?

How did he have a gun?

The answers are, he had the protection of the kawyers profession. It is 100% at fault for the murders if 3 people. If he obtained the gun legally, the check up system should sued.

As to the family if the victims, their frustration with the lawyer obstructed system has no relevance. The obstructionist caused it. The prosecutor represents the oeopke not them.

Posted by: David Behar | Mar 22, 2017 4:07:10 PM

Don't just talk about lawyers then. Crazy gonna be crazy, right? Isn't that the bit you're running here?

Posted by: MarK M. | Mar 23, 2017 12:42:19 AM

Mark. As a lawyer, you believe in supernatural powers, future forecasting, mind reading, and the basis of standards of conduct set by a fictitious character. Why fictitious character? So the standards may be objective, of course. You do not even know the real meaning of the central word of the common law, reasonable.

Cuckoo. Cuckoo. Cuckoo. Ding.

Posted by: David Behar | Mar 23, 2017 1:36:14 AM

Assuming momentarily that anything you said above makes sense, show me a better system. See, here in the real world, we have to formulate some method of humans living together without the necessity of resorting to mortal combat to resolve disputes. Hence, the current legal system, which allows us to live together outside the state of nature. You, narcissistically claim that you know more than all those who have come before us who brick-by-brick constructed our legal system. Because the human condition itself is complex, by necessity the system created to resolve human disagreements is complex. Such is required of any method which seeks to provide in advance ground rules for resolving disputes. The fact that you may not understand the intricacies of our legal system does not render that system deficient. Further, the fact that you may disagree with that system established over the centuries is interesting--or not--but isn't going to convince anyone that a return to the state of nature is desirable.

Posted by: MarK M. | Mar 23, 2017 2:21:03 PM

Mark. Let's keep this simple. The medicine, the carpentry, the oxcart manufacture, the cathedral building, the communication with quill and parchment. What methodology from 1275 AD would be acceptable to you for conducting actual business in 2017 AD? Why is a legal system 90% from 1275 AD any more acceptable? It comes complete with the appearances, the business model of the Inquisition, and the actual methods of that time.

It is you who does not understand the legal system. You have been indoctrinated, not educated. You are blind to the resemblance of the court to a church, to the bench to an altar, to the robes to prelate garb. You are blind to the Latin. You are blind to the Scholasticist origin of the adversarial system. I am stunned by the way Protestant and Jewish law students and lawyers just accept this Catholic bullshit. Because the take from this Inquisition scam is a $trillion a year, only arrests, brief trials, and summary executions can rid us of these tyrants.

This system has a 90% false negative error rate, and a 20% false positive error rate. Imagine a mechanic who fails to fix 90% of cars. When he does do a repair, he does the wrong repair 20% of the time. Then, he sends you a bill for $trillion, and a man with a gun will help you pay it, if you refuse to do so.

What is the real meaning of the word, reasonable? Why must the reasonable standard come from a fictitious character? Here is a hint, if this character were to be named, it would violate the constitution, and that is why he must remain unnamed.

I would invite you to Friend me on Facebook so I could help you understand things better, however I have been banned yet again, this time after only 2 days back. Facebook is on a long list of litigation planned.

Posted by: David Behar | Mar 23, 2017 6:47:40 PM

Your examples answer the question. How is the legal system distinct from all of your examples? Hint: people have not changed since the beginning of recorded history.

Posted by: Mark M. | Mar 24, 2017 12:54:18 AM

Mark. I care about you and your job. I am going to help you, even if you are dragged kicking and screaming. You will thank me later. A statue of me will be in front of ABA headquarters, after you are 5 times more effective, making 4 times your salary, and have 10 times the esteem of the public.

Posted by: David Behar | Mar 24, 2017 4:56:31 PM

This criminal coddler should resign immediately. She is totally unfit for her office. She should be shunned and boycotted by all law abiding citizens, including doctors. Drive her from the state of Florida.


Posted by: David Behar | Mar 24, 2017 7:54:07 PM

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