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  • Jim Ferraro

Refusing to Give Up Hope

In the aftermath of the appellate decision, the Castillos and I had a limited period of time in which to decide whether we would try to get this case to the Florida Supreme Court.

Doing so wouldn’t be easy, as the process is discretionary, and the court takes very few of these types of cases. It would require filing a petition for review known as a writ of certiorari. The chances of the Florida Supreme Court taking our case were somewhere between one in 75 and one in a 100. With odds like that, we had to give some serious thought to letting the case go.

If the case went forward, it wouldn’t require any further testimony from the Castillos, but it would require extra time and money, lots of patience, and even more pressure and emotional stress on the family.

These are never easy decisions. We knew in our heart of hearts we were right. Having invested so much time, money, and emotion in the matter already, we had to decide if it made sense to take the shot. Personally, I was not prepared to stop until we had breathed our last breath. But at the end of the day, this wasn’t about me.

• • •

In a case like this, a victory at the state Supreme Court is very difficult. For that matter, winning any case at the state Supreme Court is tough. In essence, an ultimate victory is a two step process that requires two wins.

The first step requires the filing of the writ of certiorari which is nothing more than a request to the court asking them to simply hear our case let alone rule in our favor.

The second step in the process (if you are lucky enough to get past the first step), is to file a brief on the merits of the case.

The filing of the writ, receipt of the oppositions response, and the time burned waiting for a ruling at step one takes up to a year or longer. If successful at this level, there are still no guarantees of ultimate victory other than the simple right to argue the facts and the law of your case to the state Supreme Court.

If the court grants your writ, then, and only then, do you get to step two. At step two, you are basically starting over, as if pleading your case for the first time, whereby you have to reeducate another court and try to convince them to overturn the Third District Court of Appeals and reinstate the verdict rendered by the jury. Just like the writ, which is rarely granted, your likelihood of success on the merits is also limited.

The low level of success in getting a writ of certiorari granted in a case as complicated as ours is compounded by a 10-page limit in which to get in all your facts and law to compel the court to hear your case. If the writ is granted, then you get to brief the case on the merits subject to a fifty page limit. Imagine, 50 pages to pack in the entire six-week trial that involved over 500 banker’s boxes of evidence and the testimony of dozens of witnesses that testified at trial.

The decision whether to proceed or not was going to be very difficult.

I was getting very concerned for the Castillos. It had already been a long six years since Donna Castillo had first showed up at my office. The family had suffered through the stress and pressure that comes with preparing for a trial, including but not limited to, testifying, cross-examination and the related personal attacks.

That, being followed by the exhilarating high of winning the six-week trial including two full days of roller-coaster jury deliberations. The family then endured the pain and embarrassment of the jury verdict being taken away by the Third District Court of Appeals. At this point serious consideration had to be given to not putting this family through any more pain.

I could feel the agony that the family had been through, vividly living through the birth of Johnny, to the high of the victory, to now the new low of the appellate court taking back all we had fought for. Even though the odds were heavily stacked against us, I was not ready to quit. However, I had to give great consideration of the possible toll it could have on the Castillos.

After much soul-searching and extensive conversations with the Castillos, the decision was made to proceed with the writ of certiorari. Neither I nor the Castillos was prepared to give up the hope that Johnny would have the option of having the financial means to get the proper schooling and assistance that his life required.

We filed our writ, received responses from the defendants, and now we could only hope and pray that we would beat the overwhelming odds against us. I was mentally preparing myself for how I would break the agonizing news to the Castillos in the extremely likely event of an adverse decision from the court.

After many months of waiting we finally received the decision on our writ. Lo and behold, almost a year later, the state Supreme Court decided to take the case as one of great public importance. The court considered our case to have great public importance because it involved if, how, and when science is admitted by trial court judges in Florida.

We won step one!

In my next post, I write about the Supreme Court briefing process we undertook.

This post has been adapted from my book, Blindsided, where I provide a blow-by-blow account of this groundbreaking case, from its beginnings to its verdict and appeals.


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