Donald Smith's lawyers argue to have trial moved

Sex offender's trial set for April 4 in killing of Cherish Perrywinkle

JACKSONVILLE, Fla. – The lawyer for the man accused of abducting, raping and killing 8-year-old Cherish Perrywinkle in June 2013 told a judge Thursday it will be virtually impossible to pick a fair and impartial jury in Jacksonville.

The trial of Donald Smith is scheduled to begin on April 4.

Attorney Julie Schlax cited how many times Smith has been called a monster or sexual predator, even though he was a registered sexual offender, not predator.

"The media has been at every single court date to report on what has happened, and we can anticipate that these themes and this publicity will only increase," she said.

Schlax said she believes the community knows too much about the case and that Jacksonville residents have already convicted Smith in their hearts before he's had a trial.

Schlax suggested that the trial be moved to Miami, Tampa or somewhere else in the state, or that the 12 jurors should be picked in another area and then brought to Jacksonville for the trial. Both options are expensive.

Prosecutor Mark Caliel acknowledged the pretrial publicity but said he did not believe it would prevent them from finding a fair and impartial jury. He said there are enough people in the city who could be part of the 12-person jury without casting judgment before hearing all of the facts.

"Even in the most horrific and most notorious cases, it is possible through diligent jury selection to obtain a fair and impartial jury in the jurisdiction where the crime occurred, in the community where the crime occurred," Caliel said.

Caliel said that Miami-Dade is a different demographic not similar to Jacksonville and it would be a huge burden for the jurors and their families if the jurors are sequestered for two to three weeks in another city. 

Judge Mallory Cooper took the defense motion under consideration and said she would issue a ruling later. Smith is due back in court for another hearing Nov. 17.

Lawyer Gene Nichols, who's not involved in the case, said he thinks it's a smart move for the defense attorney to request a change of venue, but he's not sure the judge will allow it.

"The problem with these, the difficulty with these, is you really just don't know until you pick a jury. You don't know until you get into the jury room and you're asking jurors questions and the jurors continue to tell you over and over again 'I know too much about this case, and I don't think I can be fair and impartial,'" Nichols said. "If they have already made a decision in their heads and can't set it aside, then the jury cannot be fair. But if you can find a jury that -- even if they have heard about the case -- can still set aside preconceived opinions or does not have preconceived opinions, then you can pick a fair jury."

Rayne Perrywinkle, the victim's mother, attended Thursday's hearing. She was emotional and prosecutors asked her not to give interviews.

Perrywinkle has previously said she wants Smith to face the death penalty. Last month, she said she's eager to get the court proceedings over and done with after Smith's trial date has been pushed back four times.

Smith, whom prosecutors said befriended Perrywinkle's family at a Northside Walmart before abducting her, was a convicted sex offender who was released from jail just three weeks before Cherish's murder.

The last time a murder trial was moved out of Duval County because of pretrial publicity was in 1999. Josh Phillips was tried and convicted in Polk County for the 1998 murder of 8-year-old Maddie Clifton. 

The defense attorney for Michael Dunn asked for a change of venue in the 2012 loud music murder trial. Dunn, charged with killing 17-year-old Jordan Davis, felt he would not get a fair jury in Duval County because of pretrial publicity. The judge denied the request and kept the trial in Jacksonville. The first trial ended with a hung jury on the murder charge, but at his retrial, a second jury convicted Dunn of first-degree murder.

In 2013, a Glynn County, Georgia, judge granted a defense motion to move the murder trial for 18-year-old De'Marquise Elkins from Brunswick to Atlanta due to pretrial publicity. Elkins was convicted of shooting and killing toddler Antonio Santiago and wounding his mother while she walked the baby in a stroller. Elkins' mother was also convicted during the same trial for tampering with evidence.

The crime

On June 21, 2013, Cherish disappeared from a Walmart store on Jacksonville's Northside.

The 8-year-old (pictured) had been driven to the store with her mother and two younger sisters by a man her mother had met at another store. Police said Smith approached Cherish's mother while she and her daughters were shopping and offered to help them.

Rayne Perrywinkle told police that Smith said he had a gift card to Walmart and would buy the children clothes if they traveled together to the store. He was a stranger to the family, but she accepted the ride.

Police said that while inside the store on Lem Turner Road, Smith told Cherish's mom he would take the girl to the McDonald's at the front of the store to buy her food.

Police said surveillance video shows Smith leading the 8-year-old out of the store and driving away in his van.

Cherish's body was found less than a day later in a marshy area near the Trout River. A woman reported seeing Smith's van, the subject of an Amber Alert, near where Cherish's body was discovered.