He walked slowly across the court, looking at the vacant seat between the 14 rows of benches, then at the table. The constant clanging of shackles interrupted the eight-minute silence before the judge entered to pronounce his fate. His feet seemed unable to stop jumping.
“Donald Smith,” District Judge Mallory Cooper said Wednesday morning, “you not only forfeited your right to live among us, but your right to live.”
At times during sentencing hearings, Cooper’s voice cracked with emotion.
“May God have mercy on your soul,” Cooper said nearly five years before the state’s trial of Donald James Smith, 61, for the murder of Janice Perrywinkle, 8.
Smith, who had been motionless and expressionless during previous trials, was on his way to death row in Florida.
About five years ago, Smith lured the little girl away from her mom with the promise of a cheeseburger at a Walmart on Jacksonville’s West Side. Smith was released from prison just 21 days after raping Janice in 2013 and then strangling her. Then he threw her body on the riverbed. Smith, who has been labeled a sex offender since the 1970s, will be held on death row along with 51 other Duval County inmates.
“I want him to be burned in hell,” said Cherish’s mother, Rayne Perrywinkle.
In the first year after her daughter’s death, Perry Winkle said she could not attend a routine court hearing because she thought she would scream at the sight of Smith. On the day Sherish died, Smith befriended Perry Winkle and their three daughters at a dollar grocery store. He lured them into his van and promised to buy them food and clothing at Walmart. Looking at him now, Perry Winkle said she was stunned.
“It was like I was watching something that wasn’t even real,” Perry Winkle said. “But he is real.”
A jury found Smith guilty of kidnapping, rape and murder in 15 minutes in February. A week later, they heard more testimony to determine whether he should be executed or spend the rest of his life in prison. Each of them chose to be executed. The new constitutional requirement requires unanimous consent.
As she did at her sentencing hearing, Perry Winkle looked directly at her child’s killer on Wednesday. He turned to leave first. “Every time I look at him and we make eye contact, the first thing he does is look away. But I don’t think that’s wrong.”
The defense essentially admitted Smith’s guilt at the trial. They didn’t call witnesses — Smith wasn’t even allowed to cross-examine Jeresh’s mother — and didn’t provide closing statements. Penalty stages and leniency are the focus of lawyers. Julie Schlax and Charles Fletcher believe brain scans show Smith is missing large areas of his brain, making him dangerous because he can’t control his impulses, sexual inhibitions and lack of empathy. They also argue that just before he killed Cherry, Smith tried to get mental health help through the so-called Baker Act, but was denied.
In the end, it wasn’t enough to convince the jury, which weighed these mitigating factors against aggravating factors such as Smith’s criminal history; the murder was related to another crime; and that Cherish’s death was an attempt to conceal the crimes of kidnapping and rape; The actions were particularly heinous, callous and orchestrated; and Cherish was under 12.