By Bernie Woodall
(Reuters) - Florida Supreme Court justices on Wednesday asked whether an Orlando prosecutor removed from first-degree murder cases by Governor Rick Scott had the discretion to adopt a policy not to seek the death penalty in her district.
Aramis Ayala, a Democrat who took office in January, sued the Republican governor this spring over his decision to take her off two dozen murder cases.
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She has said the death penalty is not in the best interest of justice and argues Scott is exceeding his authority. Scott says Florida state attorneys should "prosecute individuals to the fullest extent of the law," including the death penalty.
Ayala's lawyer, Roy Austin of Washington, argued on Wednesday that she had used allowable discretion in choosing not to pursue capital punishment, including in a high-profile case against a man accused of killing his pregnant ex-girlfriend and an Orlando policewoman in separate incidents.
Justice R. Fred Lewis said Ayala appeared to be creating a blanket policy when she announced at a March press conference that she would not seek death sentences in the Ninth Judicial District, which includes Orange and Osceola counties in central Florida.
"How is that really within the concept of discretion?" Lewis asked. "To my mind, discretion is when you make a decision on a case-by-case basis."
Ayala's lawyer Austin said prosecutors throughout Florida make calls on how to handle various types of cases.
"Discretion comes in many forms. What State Attorney Ayala did was absolutely an exercise in discretion," Austin said.
Florida Solicitor General Amit Agarwal, arguing on behalf of the governor, said allowing Ayala to create a "blanket policy" in the Ninth Judicial District could lead to an uneven application of justice for first-degree murder cases across Florida.
If her policy is allowed to stand, "we're going to have a situation where you have law-free zones with respect to some statutes in some parts of the state," said Agarwal.
Ayala attended the oral arguments in Tallahassee, while Scott was traveling, their respective offices said.
Ayala, Florida's first black woman elected state attorney, in April sued Scott to take back the cases, which are being handled by the Republican state attorney for an adjoining district, with the help of some of Ayala's staff.
The justices did not say on Wednesday when they would rule. Austin has indicated he will pursue the case in federal court if Ayala loses in Florida's top court.
(Reporting by Bernie Woodall in Fort Lauderdale, Fla.; Editing by Dan Grebler and Grant McCool)