How Cherish Perrywinkle's killer could still avoid the death penalty

Jury recommends death for Donald Smith, but judge has final say

JACKSONVILLE, Fla. – Jurors reached a unanimous decision Thursday that Donald Smith should die for the abduction, rape and murder of 8-year-old Cherish Perrywinkle. But Circuit Judge Mallory Cooper will have the last word.

Judge Cooper won't hand down a sentence until Smith, 61, receives another opportunity to present evidence in what's called a Spencer hearing. Smith's hearing is set to take place March 28.

“The judge can always review the law as it applies in the case and determine whether or not there was legally sufficient aggravating factors to impose the death penalty," said Assistant State Attorney Mark Caliel, who prosecuted the case alongside State Attorney Melissa Nelson.

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Caliel said the state anticipates it too will present information that prosecutors chose not to introduce during the penalty phase of the high-profile trial. Specifically, he said Cherish's mother, Rayne Perrywinkle, will deliver victim impact statements in the case.

The Spencer hearing, which takes its name from the 1993 case of Spencer vs. Florida, is held so the defendant has a chance to have his voice heard when faced with a potential death sentence. It allows both sides to present additional evidence that did not come up at trial.

UNCUT: Judge Cooper reads jury's sentencing recommendation

Caliel declined to speculate on whether Judge Cooper could deviate from the jury's recommendation.

But John Tanner, former State Attorney for Florida's 7th Judicial Circuit, said it's highly unusual for a judge to go against the jury's wishes in these case. During his 16 years holding that office, he said, prosecutors secured upward of 20 death penalties. Not once did a judge overrule a jury.

Tanner noted there are extenuating circumstances where a judge might revisit a death sentence. For instance, it could happen if a judge found that mitigating, or even exculpatory, information was withheld at trial. Or, in cases with one aggravating factor, a judge could conclude the evidence is too thin.

"It would be rare," he said. "Not unheard of and not necessarily unjust, but judges have a lot of authority and discretion still. But it would be extremely rare."