Donald Smith is a “failure by the criminal justice system”, according to defense expert

Jacksonville, FL — Donald Smith was no stranger to the legal system before he kidnapped, raped, and murdered 8-year-old Cherish Perrywinkle in 2013. And now, both his defense and the prosecution are trying to show that history bolsters their side, as a jury hears testimony on whether Smith should face the death penalty.

Criminal defense attorney and former prosecutor Michael Bossen was the expert witness for the defense who walked the jury through Smith’s extensive record, with the signs of trouble starting in the 1970s.

FULL COVERAGE: The trial of Donald Smith

More than four decades ago, Smith was designated as a “mentally disordered sex offender” after pleading guilty to committing a lewd and lascivious act in the presence of a minor- masturbating in front of a 5-year-old and 8-year-old. Bossen says Smith served some time in a treatment facility, then violated his probation and was sent to Florida State Prison for five years.

In 1991, Smith pleaded guilty to a burglary and grand theft charge. While Bossen says Smith could have faced up to 15 years for the burglary, he was only ultimately sentenced to four months. Bossen says it’s not uncommon to see a shorter sentence in this situation, even with a prior felony on the defendant. He says plea deals are common in the criminal court system overall.

“Would you agree with me to say it’s impossible for any prosecutor to look in to the future and see who may commit murder,” Assistant State Attorney Mark Caliel asked during cross examination.

“Absolutely,” Bossen said.

One of the victims connected to Smith's next case- from 1993- actually testified as the state's first and only witness in this penalty phase, telling the jury how she escaped his attempted kidnapping when she was 13 years old, and eventually helped bring him in to custody by getting his license plate and identifying him through a photo array. For the attempted kidnapping alone, Bossen says Smith could have faced up to life in prison, because this was in habitual/repeat offender court. The case also involved a charge of showing obscene material to a minor, where he approached two other victims and showed them pornography to try to lure them. Smith was originally sentenced to 15 years, but that was vacated when he appealed based on a claim against his attorney. The sentence he ultimately served was six years.

Smith then served five months in jail for the attempted purchase of cocaine.

Civil commitment proceedings were initiated on Smith by the State of Florida in connection to a case in 1999. Under Florida’s Jimmy Ryce Act- which was signed in to law in 1999- prisoners with certain sexually-related convictions are assessed after serving their criminal sentence, to determine if they are likely to reoffend. If that determination is made, they’re committed to a secure facility in Arcadia to undergo intensive treatment, until they’re determined to no longer be a risk. Smith was released from commitment in 2002, by agreeing to a treatment program that included receiving shots of a drug to suppress his sex drive and actively participating in other treatment activities. By 2003, he started refusing to take the shots and participate in the program.

A 2004 property crimes case could have landed Smith in prison for decades, according to Bossen, but he instead got a four year sentence. Bossen says, based on Smith’s prior record and this case being a repeat offender case, he has “some concern” about how it was disposed, but he also admits to not knowing the full context of what the State was considering at the time.

Smith was evaluated again for civil commitment in 2006, but the Florida Department of Children and Families determined he didn’t meet the criteria.

“I wondered if it was a typo at the end, that said he did not meet criteria. Because if this person with these characteristics that has been described as dangerous, as a pedophile, as only able to contain his drug addiction in a controlled setting, is not meeting criteria because he’s considered armed and dangerous as a sexual predator, I don’t know who would be,” said Dr. Heather Holmes, who also testified for the defense as a forensic psychologist with an expertise in sex offender evaluation and treatment within the incarceration setting.

In 2012, Smith was accused of impersonating a Florida Department of Children and Families employee, child abuse, and extortion. Smith ultimately pleaded to attempted impersonation of a state employee and attempted child abuse- two misdemeanor charges. Bossen says, because these charges were pleaded down, Smith was not eligible to be reexamined for civil commitment.

Smith was ultimately released just weeks before he killed Cherish. In the days leading up to the murder, he actually tried to get himself committed under the Baker Act, which allows for voluntary or involuntary commitment of someone believed to be an immediate harm to themselves or others.

“He certainly was not stable and felt that he was not safe. He reported being unable to get off crack cocaine, being unable to sleep, and having homicidal thoughts,” Holmes said.

Despite that, Smith was turned away.

For the defense, this lengthy history shows Smith is incapable of controlling his impulses, even if he knows there are criminal punishments attached. They say he was clearly trying to get help by attempting to Baker Act himself, with the report indicating he wanted to get in to a residential treatment program.

The state puts a different fault on Smith though.

“You have an opinion that he is of the most dangerous sex offenders you have ever evaluated?” State Attorney Melissa Nelson asked Holmes.

“Yes, he is,” she responded.

And they’re questioning the overall system as well.

“In reviewing his entire criminal history, would you agree with me that- knowing what we know now, as we sit here today in this courtroom- that this was a failure by the criminal justice system? Mr. Smith was a failure of the criminal justice system?” Caliel asked.

“Mr. Smith was able to somehow… and you hear it all the time, people for different reasons fall through the cracks, which I don’t really understand the origin of that phrase, but I digress. Yes, Mr. Smith was a failure through the criminal justice system, I agree,” Bossen responded.

Defense Attorney Julie Schlax built on that further, asking Bossen specifically about how the criminal justice system handles people with mental illness. He says it’s a big problem, and only getting bigger.

“There’s nowhere to treat them, there’s nowhere to house them, you can’t give them free passes because they commit heinous crimes, but at the same time, if they’re deemed sick, it’s just kind of nobody really knows what to do with them. You can punish them, but when they get out, they’re still going to be sick,” Bossen said.

Holmes says someone like Smith specifically appears to stabilize in an institutional setting, noting that he did not appear unstable when they met while he was serving time.

WOKV and Action News Jax continue to follow all of the developments in the trial proceedings.