‘He Did Not Have A Fair Shot": Death Row Child Killer’s Lawyer Says Publicity ‘Tainted’ 2013 Trial

A Florida man sentenced to death in the 2013 abduction, rape, and murder of a young girl could be given a new trial after the state’s supreme court decided to hear his appeal.

Donald Smith, 64, was convicted in the killing of 8-year-old Cherish Perrywinkle, who was kidnapped at a Jacksonville Walmart in 2013 and later found dead in a creek, the South Florida Sun-Sentinel reported. A jury sent Smith to death row in 2018.

This week, however, the Florida Supreme Court is expected to hear arguments related to Smith’s appeal.

His lawyers, who argued the trial was skewed by public opinion due to heavy pre-trial media coverage, are hoping to secure a new trial for the convicted murderer. 

“The pretrial publicity was so expansive that it saturated the community for years, provided a one-sided and continuous narrative leading to one conclusion at trial, Mr. Smith’s inevitable conviction, and death sentence,” court documents stated.

Cherish Perrywinkle and Donald Smith Photo: Jacksonville Sheriff's Office; AP

Smith’s legal team argued that by denying a change in venue, Judge Mallory Cooper dictated the outcome of the trial from the onset. Smith was “convicted” by the media before the trial got underway seven years ago, his lawyers said.

“The pretrial publicity overwhelmed the case and it skewed it against Mr. Smith,” Richard Kuritz, Smith’s court-appointed attorney, told Oxygen.com. 

“He did not get a fair trial because the jury makeup was already tainted by all of the media coverage,” Kuritz added.

Smith’s legal team noted that change of venue motions are rarely granted in the 4th Judicial Circuit of Florida.

“It just doesn’t happen in my circuit,” Kuritz said. “If you file a motion for change of venue, it just does not happen.” 

Prosecutors, however, insisted that Smith’s lawyers didn’t meet the legal tests for a change of venue. 

“There was over four years between this crime and jury selection,” State Attorney Charmaine Millsaps wrote in a separate court briefing. “Furthermore, Duval County is a large diverse county with hundreds of thousands of eligible jurors of which it is difficult to believe that 12 unbiased jurors, uninfluenced by the publicity and indifferent to, or even totally unaware of, social media posts, could not be found.”

In 2013, Smith befriended Perrywinkle’s mother at a Dollar General. He offered to buy her family cheeseburgers at a Walmart McDonald’s but later snatched the girl. Surveillance footage showed Smith escorting the girl to his parked van, according to the Sun-Sentinel. Periwinkle’s body was later found in a creek, having been raped and strangled.

During Smith’s trial, forensic experts testified he suffered from cocaine addiction and an incurable pedophilic disorder. One psychologist testified the then-accused child-killer was one of the most dangerous sex offenders she’d studied in her professional career. 

“Was he crying and begging for forgiveness? No,” Dr. Heather Holmes said. “Did I ask him about remorse? No. Did I see anything in the moment that suggested remorse? No. There is nothing I saw that indicated remorse.”

Kuritz, who agreed the case is “horrific,” also said the jury was swayed by the trial testimony of a chief medical examiner, who sobbed before the court. 

“The chief medical examiner cried on the witness stand and she’s done thousands of autopsies,” Kuritz added. “I thought that was totally unprofessional.”

The defense lawyer also said several graphic autopsy photographs of Perrywinkle were wrongfully introduced as evidence in the case, further slanting the trial in the state’s favor. 

“He did not have a fair shot,” Kuritz added. 

Prosecutors again pushed back on Smith’s defense, stating the autopsy pictures were “properly admitted."

“[They] were relevant to establish both premeditated murder and sexual battery,” Millsaps wrote.

The case will be heard in court on Wednesday.