JACKSONVILLE, Fla. – On the day before Donald Smith is to be sentenced in the 2013 kidnap, rape and murder of 8-year-old Cherish Perrywinkle, his lawyers filed a motion seeking a new penalty phase, based on an interview State Attorney Melissa Nelson did with News4Jax reporter Jenese Harris.
In a sit-down interview on March 29, Nelson told Harris that the case took an emotional toll on her and fellow prosecutor Mark Caliel, because they both have daughters.
READ: Prosecutors describe emotional impact of Cherish Perrywinkle case
Nelson called the case the “worst of the worst,” so it was important to send a message that the highest level of the office was behind Smith’s prosecution.
Smith’s lawyers argue in the court filing that inviting a jury, or a judge, to send a message with a verdict or sentence violated Smith’s right to a fair trial and sentencing hearing.
COURT DOCUMENTS: Amended motion for new trial | Motion for new penalty phase
"With all due respect I don't think Judge (Mallory) Cooper needed to see that interview to know that the facts of this case is truly one of the worst of the worst," said legal analyst Randy Reep, an attorney not affiliated with the case. "It has been said by many people at many times. If there was a reason to have a death penalty, Donald Smith is that reason."
On Tuesday, Smith’s lawyers also refiled an amended motion for a new trial. The first motion was denied.
Defense attorney Charles Fletcher says Smith should get a new trial for 12 reasons, including Caliel's closing arguments, in which he said of Cherish, “From the grave, she's crying out to you: 'Donald Smith raped me.'"
In the motion, Fletcher claims, "Crying out from the grave" is inflammatory.
Reep said he disagrees with Fletcher, because Caliel wasn't asking the jury to be in Cherish's shoes.
"I don't think they are out of line in the way they navigated it, but it's awfully close to the borders in when you can imply the golden rule," Reep said. "When you are asking a jury, by their emotions, to do things they wouldn't necessarily do on the facts."
The new motions are expected to be addressed by the judge before Wednesday's hearing, during which she will sentence Smith to either life in prison or death. You can watch that hearing live on News4Jax.com
Jurors unanimously recommended the death penalty for Smith, 61, in February after finding him guilty of first-degree murder, sexual battery and kidnapping charges.