JACKSONVILLE, Fla. – During prosecution testimony Wednesday on the second day of an evidentiary hearing for convicted child killer Donald Smith, a forensic psychologist called a 2006 Department of Children and Families evaluation of Smith “a mistake.”
Smith was convicted of abducting Cherish Perrywinkle 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.
Smith was convicted and sentenced to death in 2018 for the rape and murder of Perrywinkle. But now he wants a new penalty phase trial, claiming that his counsel was ineffective in 2018.
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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 penalty phase, meaning a jury would once again be called on to decide whether to recommend the death penalty for Smith.
The defense rested Tuesday afternoon, and Wednesday, the prosecution called witnesses to argue against Smith’s claims.
State Attorney Melissa Nelson herself called the forensic psychologist who was retained by Schlax in 2018, questioning an evaluation done by the Department of Children and Families in 2006 that found Smith did not meet the criteria for civil commitment.
The forensic psychologist, Dr. Heather Holmes, said the conclusion shocked her.
“To be frank I was absolutely gobsmacked that the text of the report and the person you’re describing is different than the conclusionary statement,” Holmes said. “The descriptions of Mr. Smith were accurate -- exactly what I had noticed and seen and found -- but yet with all of that information, he found him to not meet criteria. So yes, I was very surprised by the conclusion of that.”
Holmes agreed with Nelson that the evaluation was a failure by DCF.
“To see that something like this could have been preventable and that this was a mistake, in my opinion, on the Department of Children and Families was abhorrent,” Holmes said. “I was absolutely shocked.”
Holmes testified that Smith never showed remorse for what he did to Perrywinkle -- and blamed her for what happened.
“What he said was he had no idea why he did this, but he did say he was very angry that this little girl followed him and got in the van because he’s a convicted sex offender,” Holmes said. “He was mad at her for putting him in that position.”
The prosecution rested around 12 p.m. Wednesday and the judge asked both sides to submit written closing arguments.
Focus on jury selection
As they argued for a new penalty phase, Smith’s defense asked Schlax and Fletcher on Tuesday why they didn’t eliminate a juror who first answered no, then yes to whether she could “render a verdict based on only evidence and the law.”
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.
At one point during the hearing, the attorneys said Smith thought his case would start a movement for people who were victims of a failed system because he should have been institutionalized before he could commit crimes against Perrywinkle. He also feared being in the general population because of his crimes.
Though the defense is presenting a case that his previous attorneys didn’t do an effective job, the judge will have the final say.