We’ve been lied to.
I have taken pains to avoid “preaching to the choir.” The readers of this magazine are, almost exclusively, lawyers and judges. Most readers have devoted their entire careers working within the Florida criminal justice system. Our legal generation has worked within the understanding matrix of the modern criminal system. This is a system in which the elected prosecutor, and not the presiding judge, has wielded almost all case disposition power.
Numerous Florida and federal appellate decisions have recognized the prosecutor’s essentially unfettered discretion in initiating or forgoing prosecutions, selecting, or recommending specific charges, and terminating prosecutions outright or by accepting pleas. Specifically in Florida, this discretion has been described as “exclusive”. State v. Brosky, 79 So. 3d 134, 135 (Fla. 3d DCA 2012). Prosecutors may decide not to prosecute even when there is probable cause, even if they determine that there exists a reasonable likelihood of conviction. United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965). Prosecutors may discontinue prosecution by dismissing charges or by offering a defendant a plea to lesser/different charges. Wilkins v. State, 90 So. 3d 305, 306 (Fla. 1st DCA 2012). The decision whether to prosecute or to dismiss charges is a determination to be made, we’ve been told, solely by the State. Cleveland v. State, 417 So. 2d 653, 654 (Fla. 1982).
A prosecutor enjoys the sole responsibility to enforce criminal laws of the State. “[T]he discretion of a prosecutor in deciding whether and how to prosecute is absolute in our system of criminal justice.” Barnett v. Antonacci, 122 So. 3d 400, 405 (Fla. 4th DCA 2013). Judges have been directly instructed to stand down. Trial court judges have been directed, in no uncertain terms, that they “are not to interfere with the free exercise of the discretionary powers”. State v. Cain, 381 So. 2d 1361, 1367 (Fla. 1980).
Almost no matter how weak or ill-advised the prosecutor’s case, Florida attorneys and judges have been trained to bend over backwards to accommodate it. Pre-trial motions to dismiss should be granted “sparingly”. The state attorney was entitled to “the most favorable construction” of the evidence which would be examined for “any evidence” upon which a jury could find guilt. State v. Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000). This is not the same, we’ve learned, as evidence that would be sufficient to sustain a conviction. Florida judges are not even permitted to make factual determinations nor consider the weight of the evidence. State v. Fetherolf, 388 So. 2d 38, 39 (Fla. 5th DCA 1980). The State cannot be bothered, we’ve been told, to specifically allege the facts upon which it relies. Kalogeropolous, 758 So. 2d at 112. Our judges have been trained to defer to the State even when they doubt the case will survive judgment of acquittal. State v. Paleveda, 745 So. 2d 1026, 1027 (Fla. 2d DCA 1999).
This legal view was born in an interpretation of Florida’s separation of powers concept. Acting in Florida, we understand that “[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided” in the Constitution. Art. II § 3, Fla. Const. Florida appellate courts have explained to us that, in permitting unfettered State case control, they have applied a “strict separation of powers doctrine.” Fla. House of Reps. v. Crist, 999 So. 2d 601, 611 (Fla. 2008) (quoting Bush v. Schiavo, 885 So. 2d 321, 329 (Fla. 2004)).
Each circuit has an elected state attorney who serves as the circuit’s chief prosecutor. Fla. Const. art. V, § 17. As legal operatives, we were fed the notion that Florida’s
“strict” separation of powers doctrine enabled the growth of “sole”, “absolute” and “unfettered” state attorney discretion. It was the voters, we were told, that served as the check on this level of power. Each state attorney answers to his or her voters. Each state attorney is an elector of the territorial jurisdiction of his or her circuit. Article V, section 17 begins by allowing each State Attorney to be elected and serve a term of four years.
But, is the state attorney really the executive actor enforcing the criminal laws in this state? Florida’s governor serves as the state’s chief executive officer. There are provisions for, under certain circumstances, the governor assigning a state attorney from another circuit or, under certain circumstances, removing a state attorney altogether.
Prior to our legal generation’s time, the Supreme Court of Florida recognized that those provisions contained limitations and that those limitations were in place to prevent the governor from frustrating the will of a given Circuit’s voters. Finch v. Fitzpatrick, 254 So. 2d 203, 205 (Fla. 1971). A Florida state attorney is not, as we understood, an employee of, or supervised by, the Florida Governor.
The Florida Constitution allows for the governor to remove the elected State Attorney for “malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony.” Fla. Const. art. IV, § 7(a). What you will notice is missing in that language is “a difference in policy perspective”. Separately, section 27.14, Florida Statutes, allows the governor to assign a state attorney from a different circuit for one year when a given state attorney is disqualified or when the governor determines that the ends of justice would be best served. Ayala v. Scott, 224 So. 3d 755, 757 (Fla. 2017).
When the governor removes or re-assigns a prosecutor due to a pedestrian set of policy differences, we need to recognize a new reality. All the decades of deference, all the fealty to the notion of a circuit-elected state attorney whose case disposition discretion was unquestionable, was a lie.
The truth is that there exists a supreme prosecutor in Tallahassee who really, at the end of the day, possesses the case disposition power. The discretion of your prosecutor was not, it turns out, absolute. It is the governor who, as Florida’s chief executive officer, is vested with the “supreme executive power” and is charged with the duty to “take care that the laws be faithfully executed.” Florida’s unique constitutional state attorney system found in Article V, § 17, is, after all, simply superfluous.
We need to, after recent events and developments, understand prosecution dynamics in a different system. This is a system similar to the one we know in federal court. Despite the niceties of local elections envisioned in Article V, § 17, Florida’s system should be viewed as a “federal style” prosecution system in which the power runs from the top down. Florida’s governor, if he or she encounters policy differences, or for any proffered reason, can simply remove or re-assign the elected prosecutor.
Judges should, considering this revelation, re-examine the current view of “sole”, “absolute” and “unfettered” prosecutorial discretion. Florida’s motion to dismiss framework should be, considering shifting power dynamics, re-addressed. Members reading this article should make new and revised arguments. We are working in a fresh reality. We should present an updated set of legal arguments and seek judicial interpretations that account for our present-day experience.
