Day 2 of evidentiary hearing for Donald Smith as he appeals death sentence for 2013 rape, murder of 8-year-old girl

The man convicted and sentenced to death in the 2013 murder of an 8-year-old Jacksonville girl will be back in court again Wednesday morning for the second day of an evidentiary hearing as he continues to push for a new penalty phase trial.

Donald Smith claims that his counsel was ineffective in his 2018 trial, which ended in his death sentence for the rape and murder of Cherish Perrywinkle.

Smith’s new attorneys Ann Marie Mirialakis and Robert Hope are accusing his former attorneys Julie Schlax and Chuck Fletcher of not representing Smith effectively during the trial, claiming they didn’t remove a juror who may have been biased and didn’t follow proper procedures to select a jury, among other mistakes.

If the judge agrees, Smith could get a new penalty phase.

RELATED: I-TEAM obtains newly-released evidence against Donald Smith | Cherish Perrywinkle: The case that shocked Jacksonville

The evidentiary hearing was postponed in December after one of Smith’s three attorneys suddenly resigned.

Smith was convicted of abducting Cherish in 2013 from a Northside Walmart where he had lured her family with promises of buying Cherish and her sisters clothes. Rayne Perrywinkle, Cherish’s mother, called 911 when she realized Smith had left the store with the 8-year-old, and Smith was arrested on I-95 shortly before the girl’s body was found in a creek.

Focus on jury selection

As they argued for a new penalty phase, Smith’s defense asked Schlax and Fletcher on Tuesday why they didn’t eliminate a juror who first answered no, then yes to whether she could “render a verdict based on only evidence and the law.”

Both agreed they thought she would be a good juror who could be empathetic to Smith due to her background.

The defense also questioned the method Schlax and Fletcher used to select jurors, claiming they didn’t use the “Colorado Method” properly that had effectively led to life sentences in other non-related cases.

Fletcher said the method, in which jurors are selected based on their life-and-death views only, wasn’t required.

It was also revealed in court on Tuesday that Smith wanted the court process to last as long as possible, and Schlax said on the morning of jury selection he came very close to pleading guilty.

At one point during the hearing, the attorneys said Smith thought his case would start a movement for people who were victims of a failed system because he should have been institutionalized before he could commit crimes against Perrywinkle. He also feared being in the general population because of his crimes.

Though the defense is presenting a case that his previous attorneys didn’t do an effective job, the judge will have the final say.

Court will resume at 10 a.m. Wednesday and more witnesses will be called before a decision is made.

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