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Death penalty still possible for Donald Smith
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Death penalty still possible for Donald Smith

Death penalty still possible for Donald Smith
Photo Credit: Stephanie Brown

Death penalty still possible for Donald Smith

The road to trial for Donald Smith moves forward, and the death penalty is still on the table.

Smith’s Public Defender, Fred Gazaleh, argued several motions in court today. Many of those argued the death penalty is unconstitutional and inappropriate recourse in this trial.  He told the judge the death penalty is cruel and unusual punishment, unreliable, arbitrary and more.  Assistant State Attorney Mark Caliel responded to each claim saying the Florida Supreme Court has found otherwise.

Judge Mallory Cooper did not rule on any of these specific motions, meaning the State will continue to seek the death penalty against Smith.

Smith is charged with abducting 8-year-old Cherish Perrywinkle from a Northside Walmart, sexually battering her and killing her. He has pled not guilty.

The victim and the crime scene itself also came in to question today, with Gazaleh arguing many of those photos should not be shown because they will just inflame the jury. Caliel says there are some “horrific” photos of the victim’s injuries that he has every intention of using in order to paint a picture of what police say happened that night.  Cooper set a hearing shortly before the trial to look through each of the photos in question and rule individually which should be allowed in court.

A lot of debate also centered on pre-trial media exposure for the potential jury pool. Gazaleh says he realizes it will be difficult to find a pool of jurors with no prior knowledge of this case but says he wants to try as much as possible. With that in mind, he asked the judge if each potential juror could be individually screened, rather than having some questions answered in front of a large group of jurors- which is current protocol. While Caliel agreed that the amount of pre-trial press could be concerning, he did not favor an entirely individual screening.  Cooper left the issue saying they will figure out the right balance.  She says there might be a good system worked out before this trial- other high profile cases including Marissa Alexander’s new trial and Michael Dunn’s murder trial will take place ahead of Smith’s.

Cooper set the next pre-trial hearing for February 12. Jury selection is currently scheduled to begin May 12th.

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