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Tampa Bay Times

In Gov. DeSantis vs. Warren, who really neglected their duty? | Column

By Ellen Podgor,

Former State Attorney Andrew Warren speaks during a news conference on Jan. 20, 2023 in Tampa. A federal judge ruled Friday that Florida Gov. Ron DeSantis violated the First Amendment and the Florida Constitution by removing Warren, an elected state prosecutor, but that the federal courts lack the power to reinstate him. (Chris Urso/Tampa Bay Times via AP) [ CHRIS URSO | AP ]

A neutral non-political federal district court judge loudly and clearly told Gov. Ron DeSantis on Friday that his suspension of twice-elected Hillsborough County prosecutor Andrew Warren violated not only the First Amendment but also the Florida Constitution.

In a 59-page “order on the merits,” the judge held that DeSantis’ suspension of Florida’s 13th Judicial Circuit’s state attorney was not only wrong, but that “any reasonable investigation would have confirmed this.”

DeSantis’ bold move in suspending Warren through an executive order was premised on claims that Warren’s “blanket non-prosecution policies show(ed) both a ‘neglect of duty’ and ‘incompetence.’” With the curtain now up and the real facts examined, one has to question who really neglected their duty here and where claims of incompetence should lie.

The court’s order noted that Warren “was an extraordinarily well-qualified prosecutor.” He trained his office well, seeking to “treat like cases alike and to provide guidance to the 130 prosecutors, many of whom had limited experience.” It is obvious that Warren was clearly following American Bar Association Standards for Criminal Justice that say a prosecutor “should exercise sound discretion and independent judgment in the performance of the prosecution function.” These standards advise prosecutors “to develop general policies to guide the exercise of prosecutorial discretion, and standard operating procedures for the office. The objectives of such policies and procedures should be to achieve fair, efficient, and effective enforcement of the criminal law within the prosecutor’s jurisdiction.” Warren did exactly this.

The judge’s order states that there was “not a hint of misconduct by Warren.” And it turns out “that there were no blanket non-prosecution policies,” and even if there were, that was “not the sole basis of the suspension.” According to the judge, “(t)he assertion that Mr. Warren neglected his duty or was incompetent is incorrect.” The judge even went so far to say that “(t)his factual issue is not close.”

The same cannot be held for the governor’s office, which failed to investigate their allegations prior to the suspension. But investigating the facts was unimportant as this was all a media show by DeSantis. The judge in his order confirmed that “the controlling motivations for the suspension” were to “bring ... down a reform prosecutor — a prosecutor whose performance did not match the governor’s law-and-order agenda.” It provided the governor with “free media coverage generated by the suspension at 2.4 million (dollars) in 14 days,” a calculation provided by the governor’s office.

And this political ploy was at the cost of the many constituents who clearly approved of Warren’s work, as he ran and won a second term by about 45,000 votes.

The governor removed a prosecutor who was not only doing his job, but doing it well. As the judge noted, “running a state attorney’s office is the state attorney’s job, not the governor’s.” The bottom line is that “(a) governor cannot properly suspend a state attorney based on policy differences.”

Unfortunately, the judge in finding all these facts also believed that the U.S. Constitution tied his hands in providing a remedy to the man who was improperly suspended from his job while faithfully serving his constituency. But the judge sent out a strong message to DeSantis: “If the facts matter, the governor can simply rescind the suspension.”

So do it, governor. Facts and law do matter. Or should. And as the judge stated, if the governor “does not do so, it will be doubly clear that the alleged non-prosecution policies were not the real motivation for the suspension.”

Ellen S. Podgor is a professor of law at Stetson University College of Law who teaches in the areas of criminal law and white collar crime.

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