JACKSONVILLE, Fla. – The lawyer for the man accused of kidnapping, raping and killing 8-year-old Cherish Perrywinkle is putting more pressure on the district court of appeals asking that he be allowed to withdraw from the case. Public defender Fred Gazaleh's original request was denied by the trial judge.
In a 10-page petition to the appeals court, Gazaleh is essentially saying that if he's forced to defend Donald Smith, any conviction could be thrown out on appeal. Gazaleh doesn't want to represent Smith any more because of a conflict of interest. He says another inmate has come forward claiming to have evidence against Smith for another kidnapping, rape and murder years ago.
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In a petition sent to the appeals court, Gazaleh said the conflict of interest within the public defender's office is something that cannot be ignored. Gazaleh said inmate Randall Deviney, who was convicted of murder in 2008, has information about Smith and another alleged crime. In a neatly handwritten letter, Deviney said he has knowledge about a cold case kidnapping, rape and murder committed by Smith (pictured below). Gazaleh said the appeals court can't afford to ignore this information.
Jacksonville attorney Gene Nichols, who's not associated with the case, said the risk of appeal is real.
"What Mr. Gazaleh is saying is, if we try this case and Smith loses, every issue that we need to appeal, every issue from jury selection to statements in trial -- all of this will go up on appeal, and his position will be 'You should have let us out.'"
The State Attorney's Office said it doesn't stand to gain anything from the information that Deviney claims he has. Prosecutors said they have enough physical evidence and eyewitness testimony to convict Smith of Cherish's murder.
Officials with the SAO have said they think Deviney is perpetrating a fraud on the court to escape a retrial. Nichols explained why he thinks the judge has refused to take Gazaleh off Smith's case.
"What Judge Cooper has said is that the information that came out is from your client, so it's not a conflict of interest," Nichols said.
The judge did grant an indefinite stay, which is being considered by the appeals court, so as of now, there is no trial date for Smith. They are waiting on the appellate court's decision.