ST. AUGUSTINE, Fla. – Circuit Judge Lee Smith on Wednesday denied a motion filed earlier in the day by the lawyer representing Aiden Fucci, the teen accused of killing Tristyn Bailey, asking for a delay of his murder trial and saying she is appealing the judge’s order for a six-member jury to the Fifth District Court of Appeal.
The motion for continuance of the jury trial was filed Wednesday morning — just hours prior to what was set to be Fucci’s final court hearing before the trial, which was scheduled to begin Monday.
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.
“This motion is made in good faith with no fault to Aiden Fucci, he had no control on the timing of the motions filed by the State, the defense team moves to continue this case pending the ruling of the Fifth District Court of Appeal,” the court document reads.
During Wednesday afternoon’s pretrial hearing, which lasted 11 minutes, 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. She still can, but it is unclear whether she will.
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 said there is no harm to Fucci by going to trial next week. The judge said that he wants proposed jury instructions submitted by 5 p.m. Friday and that jury selection is set to begin Monday.
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.
Fucci 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’s been in the Duval County jail because St. Johns County’s jail does not have a juvenile wing.
The defense also expressed concerns during Wednesday’s hearing that the number of preemptory challenges, or ways to object to jurors, would be reduced with a six-person jury.
The judge said that’s not true. He said Fucci is still entitled to 10 preemptory challenges because he’s facing life in prison.