JACKSONVILLE, Fla. – The man convicted and sentenced to death in the 2013 murder of an 8-year-old Jacksonville girl was back in court Tuesday morning for an evidentiary hearing as he continues to push for a new trial.
Donald Smith claims that his counsel was ineffective in his 2018 trial, which ended in his conviction for the rape and murder of Cherish Perrywinkle.
Smith’s new attorneys Ann Marie Mirialakis and Robert Hope are accusing his former attorneys Julie Schlax and Chuck Fletcher of not representing Smith effectively during the trial, claiming they didn’t remove a juror who may have been biased and didn’t follow proper procedures to select a jury, among other mistakes.
If the judge agrees, Smith could get a new trial.
The evidentiary hearing was postponed in December after one of Smith’s three attorneys suddenly resigned.
Smith was convicted of abducting Cherish in 2013 from a Northside Walmart where he had lured her family with promises of buying Cherish and her sisters clothes. Rayne Perrywinkle, Cherish’s mother, called 911 when she realized Smith had left the store with the 8-year-old, and Smith was arrested on I-95 shortly before the girl’s body was found in a creek.
According to the motion, Juror 13 was asked if she could “render a verdict based on only evidence and the law”. First, the juror answered “no” and then “yes.”
On Tuesday, the defense asked Schlax and Fletcher why they didn’t eliminate the juror. Both agreed they thought she would be a good juror who could be empathetic to Smith due to her background.
The defense also questioned the method Schlax and Fletcher used to select jurors, claiming they didn’t use the “Colorado Method” properly that had effectively led to life sentences in other non-related cases.
Fletcher said the method, in which jurors are selected based on their life-and-death views only, wasn’t required.
It was also revealed in court on Tuesday that Smith wanted the court process to last as long as possible and Schlax said on the morning of jury selection he came very close to pleading guilty.
Though the defense is presenting a case that his previous attorneys didn’t do an effective job, the judge will have the final say. More witnesses will be called on Wednesday before a decision is made.
At one point during the trial, the attorneys said Smith thought his case would start a movement for people who were victims of a failed system because he should’ve been institutionalized before he could commit crimes against Perrywinkle. He also feared being in the general population because of his crimes.
Court will resume at 10 a.m. on Wednesday.
Belkis Plata, a Jacksonville attorney unaffiliated with the case, was working as a public defender when the Amber Alert for Cherish went out.
“I think everyone was so hopeful that the police would find this little girl and that she would be returned to her family alive and well,” she said. “And it did not happen that way. The tragedy of what happened to her, I think, is what has stuck with people all of these years, knowing what that little girl went through. People want to see justice.”
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During the evidentiary hearings, Smith’s attorneys will call witnesses to the stand and present physical evidence to the judge.
Plata said a decision from Tuesday’s hearing could take days or even months. She also said the lengthy appeals process can be painful for the victim’s family.
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“A lot of people think that a jury verdict is final. And that brings finality to the case. And that’s just not the case at all, especially not in these types of cases and death penalty cases, the appeals process is extremely long,” she said. “I think the community as a whole felt that loss and stands by the mom in hoping that someday she’ll be able to get closure and really try to move past this.”