10 years after Cherish Perrywinkle was kidnapped and murdered, her killer’s death case returns to the Duval County courtroom.
JACKSONVILLE, Florida — Nearly 10 years after an 8-year-old girl was kidnapped from a Jacksonville Walmart, raped and murdered, the case against her killer is back in the Duval County courtroom. On Monday, a judge agreed to hold a hearing on Donald Smith’s claims following a guilty verdict that his original trial lawyers were ineffective.
Cherish Perrywinkle would be 19 years old if she were alive. The man who took her life in 2013, 67-year-old Smith, did not appear in court. However, post-sentence attorneys told Senior Circuit Judge Mallory Cooper that a hearing was necessary.
“The defendants have the right to a trial,” Smith’s attorney, Ann Marie Mirialakis, who presided over the death penalty trial in 2018, told Cooper. “You are entitled to something more than a licensed lawyer sitting at a desk.”
Mirialakis said Smith’s lawyers failed for various reasons, including the fact that they chose not to cross-examine Cherish Perrywinkle’s mother immediately after prosecutors played her panicked 911 call. This meant they missed their chance to challenge Rein Perrywinkle’s credibility, including alleged “previous false affidavits”.
However, Sheila Loizos, director of the state’s attorney’s office’s legal department, argued that the decision was made by Smith. He ordered his attorneys not to interrogate Reine Perrywinkle; they just followed his instructions.
“Donald Smith was convicted based on videotape and DNA evidence, not whether a rather minor witness was cross-examined at his request,” Loizos said. She called the evidence against Smith “insurmountable”.
“There was a video of a child being taken out of a store,” she said. “The DNA evidence was [found on the child’s various body parts]The testimony of one witness “pales in comparison with this evidence of guilt.”
Loisos continued: “The accused is entitled to a fair trial, not a perfect trial. Donald Smith got a fair trial.”
Smith’s lawyer after the verdict, Mariter Taveras-Zon, also criticized Smith’s trial lawyers for calling forensic psychologist Dr. Heather Holmes as their first punishment stage witness in Smith’s trial. Not only did Holmes not present any mitigating evidence, Taveras-Zon said her participation in the trial “opened the door to an avalanche of other aggravating evidence,” including Smith’s previous sex crimes.
During cross-examination by State Attorney Melissa Nelson Holmes, called Smith a “mentally ill sex offender” from when he was a teenager and said that after evaluating Smith three times, she was unable to find mitigating evidence in his favor.
“Did you testify that, based on your assessment and your review of history, there is nothing that could mitigate it?” Nelson asked. “True,” said Holmes.
Not only did Holmes not help, Taveras-Zon said she made a “seemingly biased claim that [Smith] was the most dangerous pedophile she had ever met.”
Loizos dismissed this claim, stating that Holmes’ testimony was the key to his punishment phase strategy.
“They were supposed to put on Dr. Holmes to show that the state had failed by releasing him from prison and not keeping him in custody. [the] Jimmy Rice [Act]”.
“It was an incredibly brutal crime,” Loizos continued. “There was a lot of evidence. The only possible mitigation was to show that Donald Smith was a terrible person and that “the state is to blame” for his being at large. He should have been put in jail, and the state is to blame for this “mistake.”
Monday’s status hearing was to determine whether a later full hearing on evidence, including sworn testimony from Smith’s lawyers, should be held. Judge Cooper agreed that a hearing was necessary and scheduled it for December 4th. This hearing is expected to last at least a day.
Smith is currently being held at the Union Correctional Facility in Rayford, Florida.