Cherish Perrywinkle and Donald Smith. | News4Jax
Published on December 1, 2023 at 12:03 pm
The attorneys who defended a rapist and murderer at trial must now take the stand to defend their handling of his case.
Donald Smith, 67, will return to court Monday for what is expected to be a multiday hearing on the sufficiency of his legal representation at his 2018 trial.
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Smith was convicted for the 2013 kidnapping, rape and murder of 8-year-old Cherish Perrywinkle, who vanished while shopping with her mother and sisters at a Northside Walmart.
Smith was sentenced to death, but his legal case has not expired. The Florida Supreme Court rejected an automatic appeal of his death sentence, and the U.S. Supreme Court declined to hear an appeal of that decision. But his new attorneys have raised objections in the case, saying his trial attorneys failed to provide adequate representation on several fronts.
Those complaints will be aired at a hearing when Smith’s former court-appointed lawyers, Julie Schlax and Charles Fletcher, will be called to the stand to defend, under oath, their trial performance.
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According to Smith’s claim, his attorneys failed to object when prosecutors played for jurors the panicked 911 call from the missing girl’s mother; failed to object to “digitally altered” surveillance footage highlighting Smith’s movements at the Walmart; and failed to adequately inform Smith of the consequences when he instructed them not to cross-examine the child’s mother.
The motion says the attorneys also failed in allowing a “biased” juror to be seated and a mental health expert to testify that Smith was “the most dangerous pedophile she had ever met.”
Challenges like this are not unusual in death penalty cases, which are subject to years of complicated appeals. But it does present a unique spectacle, in which a defendant is pitted against his former legal team, while those lawyers unite with the case’s original prosecutors to argue that their defense strategy was sound.
The original judge, Senior Circuit Judge Mallory Cooper, now retired, will preside over the hearing, which will begin at 10 am.
