JACKSONVILLE, Fla. – The man accused of killing 8-year-old Cherish Perrywinkle in June 2013 was back in court Tuesday morning as his attorneys argued that the death penalty should be taken off the table.
Florida lawmakers are working to revamp the state's death penalty law following last month's Supreme Court decision that ruled sections of the law unconstitutional.
The defense argued Tuesday that under that ruling, the court does not currently have the authority to impose death. Smith's attorneys requested a maximum penalty of life in prison when his trial begins. It is slated for April 4.
The State Attorney's Office argued that "the death penalty is not dead in the state of Florida" and said it did not want Smith's trial to being April 4 if state lawmakers have not settled the death penalty issue.
Judge Mallory Cooper declined to rule on the defense's motion Tuesday.
In addition to the death penalty motion, Smith's attorneys want the trial moved out of Duval County. Their concern is that come trial time, finding a fair and impartial jury will be difficult.
The judge also decided Tuesday that 72 hours of taped conversations requested by the media will be reviewed by the court before she decides whether to release them.
Most of those conversations are between Smith and convicted killer Randall Deviney, who got to know each other while Deviney was awaiting a retrial in the 2008 murder of Delores Futrell. He was convicted and sentenced to death again.
Deviney said he would give the prosecution information about Smith committing another rape and murder years before the Cherish case, if they’d let him plead guilty to the Futrell murder and get a 20-year sentence.
The prosecution has entered those conversations into trial evidence. The defense is trying to keep them from being released to the media.
Smith's next pretrial hearing will be March 8. Final pretrial hearings are set for March 31.
Police said Smith befriended Cherish's mother at a Northside store, took them to a Walmart, then walked out with the girl after saying he was going to buy hamburgers at a McDonald's.
The girl's body was found behind a church the next morning.
The case has dragged on for nearly three years, and is now one of many death penalty cases on hold.
The Supreme Court said Florida's process was flawed because it allows judges to make findings of fact, even when juries haven’t. That's why Smith's lawyers are working to have the possibility of death thrown out.
"It is the defense lawyer's responsibility to argue every constitutional issue that comes with the penalty of death," said attorney Gene Nichols, who is not involved in Smith's case.
Right now, Florida lawmakers are drafting a new law that would change the problems as outlined by the Supreme Court. They are considering a death penalty law that would require 12-member juries to vote a minimum of 10-2 in favor.
Attorney Rhonda Peoples-Waters, who is not connected with the case, said it's likely that would not be an issue in Smith's case.
"This is hardly one of the cases where if the jurors go back to deliberate, they’re going to be divided," she said. "If they find a child rape occurred, I believe the jury would very easily find by a vote of 10-2 that he’s eligible for the death penalty."
But until the Legislature decides how to proceed, Nichols said many death penalty cases, including Smith's, are on hold.
"Now, Donald Smith doesn't want it to be on hold because he'd like to have a ruling at this point in time, while we are in this window of an unconstitutional rule," said Nichols.
Nichols said that as far as the change of venue motion is concerned, in most cases, the judge will make that decision once the state begins the process of trying to seat a jury.
Cherish's mother was in court Tuesday but declined to comment, saying her attorney advised her that it could affect whether there’s a change of venue in the trial.