Criminal defense attorney discusses strategy before Aiden Fucci’s murder trial

Trial of teen accused of killing 13-year-old St. Johns County schoolmate Tristyn Bailey scheduled to begin Monday

For now, jury selection is still scheduled to begin Monday in the murder trial of Aiden Fucci, the teen accused of killing 13-year-old Tristyn Bailey.

Circuit Judge Lee Smith on Wednesday denied a motion filed earlier in the day by Fucci’s defense attorney, asking for a delay of his trial and saying she is appealing the judge’s order for a six-member jury to the Fifth District Court of Appeal.

It centers around the judge’s decision last month to grant the state’s motion for a six-member jury and reject Fucci’s defense attorney’s motion for a 12-member jury.

In the motion for continuance, Rosemarie Peoples, Fucci’s lawyer states the Fifth DCA has requested a response from the attorney general in 20 days, with a deadline of Feb. 20, and allowed an additional 10 days for the defendant to file a reply, according to the motion for continuance.

The petition for writ filed Tuesday with the Fifth DCA backs up the defense argument that Fucci has a right to a 12-person jury because this is a capital first-degree murder trial.

During a pretrial hearing Wednesday afternoon, Fucci’s lawyer argued the issue is going to be taken up by the Fifth DCA, so the stay should be granted.

The state noted the Fifth DCA did not issue what’s called a “show cause” order, which would have halted the trial.

The defense lawyer acknowledged it was a mistake by her not to file that writ as an emergency.

The judge said that for the Fifth DCA to accept the writ as an emergency, it would have to certify a conflict with existing law. That would land the argument before the Florida Supreme Court, which would mean an extensive delay in the trial. The judge said that was unacceptable.

Smith and attorneys for both sides stated case law supporting their arguments.

The state’s motion was written based on Walling v. State, which says the defendant was not entitled to a 12-person jury because he was a juvenile.

The defense references State v. Pool, which says a 12-person jury is required for a first-degree murder trial unless waived by the defense and a 12-person jury is required even when the prosecution waived the death penalty.

“The court in Pool sided with a defense because they said that it’s not up to the prosecutor or the trial judge to determine who gets a 12-person jury,” criminal defense attorney Lee Lockett, who is not affiliated with the case, told News4JAX. “The challenge, though, that the defense is going to have on appeal, I suspect, is that Walling is more on point because it dealt with a juvenile case versus these other cases that the defense is bringing forth, which I think have good merit to them. But this is something that the appellate judge is going to have to sort out.”

Smith said there is no harm that would prevent the court from having the trial. But the defense said that having a six-person jury departs from law requirements and that the harm to their client cannot be remedied on appeal.

The judge said that he wants proposed jury instructions submitted by 5 p.m. Friday and that jury selection is slated to start Monday.

On Thursday, News4JAX spoke with defense attorneys not affiliated with the case about the strategy before the trial. They said, if this were their case, they would be filing an emergency writ.

If a higher court finds that Fucci is entitled to a 12-person jury, it could delay the trial for many months.

“There’s not much that they can do without a higher court order requiring that the trial be stayed pending the appeal,” Lockett said.

Lockett said there’s still time for the defense to file an emergency writ.

Fucci, now 16, is charged with first-degree murder in the death of Bailey, his 13-year-old schoolmate. She was found stabbed to death on Mother’s Day 2021 in Durbin Crossing, less than a half-mile from Fucci’s home in the neighborhood where Bailey also lived. Fucci was arrested in the early morning hours of the next day.

He is being tried as an adult, although he was 14 at the time of his arrest. If convicted, he could spend the rest of his life in prison. As a juvenile when the offense occurred, he is not eligible for the death penalty. He has been in the Duval County jail because St. Johns County’s jail does not have a juvenile wing.

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