Attorneys argue about sealing evidence

Donald Smith appears in court in killing of Cherish Perrywinkle

By Kent Justice - Anchor/reporter

JACKSONVILLE, Fla. - The man accused of kidnapping and killing 8-year-old Cherish Perrywinkle appeared in court Thursday as his lawyers seek to seal discovery materials, such as 911 calls and surveillance video from the media.

Attorneys for Channel 4 and the Florida Times-Union argued to make the evidence public record prior to the trial.

Smith's appearance was a surprise to at least one of the attorneys present. His lawyer is an assistant public defender who filed a motion for protective order.

Fred Gazaleh wants eight kinds of discovery materials sealed from the news media, including witness information, crime scene photos and any photos with Smith in them. Additionally, he wants to seal phone calls and statements, including 911 recordings, statements from Smith to law enforcement, jail phone calls and visits.

The lawyer also wants to seal the surveillance video from the Walmart store where police said Smith led Cherish away and eventually to her death by his hand.

The argument is that all the information being available to the public through the media would take away Smith's right to a fair trial.

"We're balancing his right to a fair trial against the public's access to its courts to know what's going on in criminal courts," Channel 4 attorney Ed Birk said. "And the best way to know what's going on is to have full access."

The judge listened to nearly an hour of discussion, which at times included the state's prosecutor on the case, Mark Caliel.

Birk said Smith's lawyer didn't provide any proof that his case is in jeopardy if the discovery material is produced under Florida's Sunshine Law. Birk argues the judge should dismiss the motion.

"I understand the Internet has changed things, dissemination of information is different than it was 10 years ago, but that doesn't change the legal standards. And legal standards still have to be met," Birk said. "There are many things that can be done other than sealing public records to protect that man's right to a fair trial."

Judge Mallory Cooper said she will take her time in considering what to do. Smith's next pretrial hearing is Sept. 4. Cooper said she may have an order by then.

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