Judge retiring, but may stay on for Donald Smith trial

Sex offender's trial set for April 4 in killing of Cherish Perrywinkle

JACKSONVILLE, Fla. - Judge Mallory Cooper is retiring this week, but has asked to stay on to preside over the trial of the man accused of abducting, raping and killing 8-year-old Cherish Perrywinkle in June 2013.

Cooper has reached the mandatory retirement age of 70, but told attorneys at a hearing Tuesday morning she has asked the District Court of Appeals if she could see the trial of Donald Smith to completion. 

Smith's lawyer continued to press to move the trial out Duval County, saying it will be virtually impossible to pick a fair and impartial jury in Jacksonville. Cooper deferred the motion, saying the new judge will try to seat a jury in Jacksonville, a process scheduled to start April 4.

In previous hearings, Attorney Julie Schlax cited how many times Smith has been called a monster or sexual predator, even though he was a registered sexual offender, not predator. Schlax said she believes the community knows too much about the case and that Jacksonville residents have already convicted Smith in their hearts before he's had a trial.

Prosecutor Mark Caliel has acknowledged the pretrial publicity but said he did not believe it would prevent them from finding a fair and impartial jury. He said there are enough people in the city who could be part of the 12-person jury without casting judgment before hearing all of the facts.

The next pretrial hearing in the case is set for Jan. 25.

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