78 potential jurors remaining open to death penalty if Donald Smith is convicted

Jury pool down to 80 in high-profile child abduction, murder case

JACKSONVILLE, Fla. – Out of 300 potential jurors in the kidnapping, sexual battery and first-degree murder trial of Donald Smith, the 80 people remaining on Thursday filled out another questionnaire and answered questions in court.

At the end of the day, two more jury candidates were dismissed.

Prospective jurors were told they would see and hear explicit evidence in the death of Cherish Perrywinkle, who was abducted, raped and murdered in June 2013.

"You will see autopsy photos of what happened to her, how she was killed and sexually assaulted," Assistant State Attorney Mark Caliel said.

That bought one woman to tears, saying, "I don't think I can do this." Several others raised their hands when asked if they would have a problem being exposed to the evidence.

"Both of my daughters were molested," one woman said. "I was molested when I was young and I don't know that I can do this."

Both prosecutors and defense attorneys emphasized to the jury candidates that Smith is considered innocent until proven guilty.

"We want you to be as certain as possible that you come into this courtroom with an open mind that you can be fair to the state of Florida and to Donald Smith," Caliel said. 

"Can you presume, can you truly presume that he is innocent? (Can you) give him that constitutional right?" defense attorney Charles Fletcher said.

In addition to the trial, if Smith is convicted, the jurors would also hear the penalty phase to determine if he should be sentenced to death. All of the 78 potential jurors remaining in the pool said they would be able to sentence him to death if they though it was appropriate.

Caliel's last request Thursday of the potential jurors: Describe the death penalty in one word. Their answers included "complicated," "sad" and "serious."

The potential jurors range in age from 20s to 70s. Some know each other as relatives, attend the same church or work together.

RELATED: Cherish Perrywinkle: The case that shocked Jacksonville | Donald Smith trial: 5 things to know about the high-profile case

Many people who did not make it to the final pool of 80 people had admitted to court officials that they had already made up their minds about Smith.

On Wednesday, one potential juror said that he already believed Smith was guilty and that “he should be killed. I wish someone would shank him in prison.” The juror admitted that he could not give Smith a fair trial, saying, “This man has wasted a lot of people's time," and that he would only choose death for Smith.

Another man told the court that he'd watched the case from the beginning and believed Smith was guilty. When a prosecutor pointed out that Smith has a right to a fair trial, the man said, “I can be fair.” He was not moved on to the next round of consideration for the jury.

The defense has been concerned for some time that an impartial jury of 12 members, plus alternates, can't be found in Duval County, where media coverage of the shocking crime has been extensive.

Circuit Judge Mallory Cooper said the court would try to seat a jury here before she would consider moving the trial. She said she is expecting jury selection to continue through Friday.

If Smith is convicted of murder, kidnapping and sexual battery, prosecutors are expected to seek the death penalty for him.

That fact has played a role for some jurors who cited their religious beliefs that are opposed to the death penalty. One woman, who was dismissed from the jury pool, said during her interview, “God gives life, only God can take a life.”

Gene Nichols, an attorney not affiliated with the case, said religion can play a critical role in jury selection and a trial. 

"Many people bring faith into a courtroom, but when it is all said and done, you need to follow the law," Nichols said. "Does your faith preclude you from following the law? If their faith precludes them, then that’s when the judge is going to have to keep them off the jury."

Once a jury is picked, the trial is expected to last three to four days, with another three to four days for the penalty phase. It’s uncertain if the penalty phase will start immediately. In Duval County, there’s usually a one- to two-week wait.

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