You get a former prosecutor, a retired judge and a defense attorney together to talk about legal issues underpinning Orlando’s State Attorney Aramis Ayala‘s decision to not pursue death penalty prosecutions, and you might expect lively disagreement.

But a brawl?

A debate in Orlando Wednesday between former 9th Judicial Circuit State Attorney Jeff Ashton and retired 18th Judicial Circuit Judge O.H. Eaton Jr. broke down into near chaos at times, with shouted interruptions leading to political accusations, a few insults, a bit of belittling, sarcasm and condescension, and angry protests of unfairness.

And most of that wasn’t between the prosecutor and the judge who were officially squaring off, but between Ashton and the debate moderator, Orlando defense attorney Mark O’Mara.

“I hoped this discussion would not become political but it almost immediately did,” said an exasperated-sounding Ashton, who lost the JC9 seat to Ayala in a nasty election battle last year, and then took the positions opposing her decision. “I hoped that somebody would show me a case or an interpretation or a rule or a statutory construction.

“But all I’ve heard is you two yelling at me that I’m wrong!”

“I haven’t yelled at you at all. I’m very soft spoken,” corrected Eaton, quipping about his reputation on the bench.

The debate, held in front of a crowd mostly of lawyers and sponsored by The Ramsey Law Firm, the Law Firm of Jennifer J. Jacobs and a couple of others, illustrated the levels of passion and politics emerging in Orlando from what Ayala has done, and what Gov. Rick Scott has done as a result, stripping her of 22 murder cases.

The combatants Wednesday did agree on one thing, that the ramifications of Ayala’s and Scott’s actions could be far-reaching for Florida criminal justice.

“What is going to happen, I hope, is that Ms. Ayala is going to challenge this and we’re going to get a ruling, and the issue is going to be very clear: does the prosecutor’s discretion trump the governor’s right to disagree with it,” said Eaton, described by the Orlando Sentinel as a “death-penalty expert judge” when he retired in 2010.

“And I agree on both counts,” Ashton replied. “I hope that it goes to the Florida Supreme Court, because this is an issue that could fundamentally change the concept of what a prosecutor is, in the state of Florida.”

And there were other times, especially early on, when the debate flowed smoothly.

Ashton’s chief argument centered on Florida Statute 782.04(1)(b), which states that, in all first-degree murder cases, “the procedure set forth in Statute 921.141 shall be followed in order to determine sentence of death or life imprisonment.” Shall, Ashton said, is a command, not a suggestion. Ayala, he said, did not follow the procedure in 921.141, which essentially is the procedure to determine if there are aggravating circumstances that could lead to a death penalty. She just decided in advance, for all cases, there would be no death penalty.

Eaton argued that prosecutorial discretion, which Ayala claimed in deciding against death penalties, is an absolute concept that dates to English common law, and he cited a number of cases where courts have upheld that discretion.

“If she had said, ‘I’m not going to use the death penalty,’ and gave no reason for her decision, that decision could not be reviewed by any court, and it is not reviewable by the governor, I don’t think,” Eaton said.

He added that he believes the consequences a governor’s action to overrule prosecutorial discretion, as Scott has done, are very serious, because they could send the message to all of Florida’s prosecutors that anytime they use their prosecutorial discretion in a murder case, he might intervene if he doesn’t like the choice.

In short, state attorneys might become politically intimidated by the governor, he said, and very nervous about not pursuing death penalties.

Ashton contested that, and said he wanted to know who could speak up for victims if prosecutors go their own way.

“When the prosecutor decides to break or ignore the law to the benefit of the defendant, how is it reviewed?” Ashton demanded. “Who do you go to? If you are aggrieved victim who believes the state attorney is ignoring the law, who do you go to?”

 

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