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The Bar Bulletin
Jax Daily Record Monday, Mar. 5, 201806:50 AM EST

They fought for Cherish

Prosecution team talks strategy, mental toll of Donald Smith trial.

By The Bar Bulletin

As they sat around a table, their closeness was evident. 

They had been through a battle. One they had won for Cherish Perrywinkle and those who love her.

A couple of hours earlier, the four members of Cherish’s prosecution team heard the jury’s decision that Donald Smith should receive the death penalty for killing the 8-year-old girl in June 2013.

Each of the four around that table played a role in the trial. 

Assistant State Attorney Mark Caliel and paralegal Brian Hughes had been there from the beginning. 

Caliel was at the scene the morning Cherish’s battered body was found in the water. His own daughter was 13 at the time.

“Not much older than Cherish,” he said.

He developed the strongest relationship with Cherish’s mother, Rayne, whose trust had been destroyed by Smith. But Rayne trusted Caliel, which was important as the two worked together to prepare the grieving mother’s testimony.

Cherish Perrywinkle

Hughes had the foresight early in the case to spend hours editing surveillance tape that the FBI would later use to create the crucial video that used colored arrows to track everyone in the Walmart. First, the arrows showed Cherish, her mother and Smith, then just Cherish and Smith as she followed him into the night, first to his van in the parking lot, then as it left the North Jacksonville store.

Assistant State Attorney Vanessa Wheeler-Sanchez, who joined the office in 2013, was brought on for her gifted writing skills and to help research legal issues. She also prepared and questioned two witnesses during the trial.

State Attorney Melissa Nelson wanted to try the case. She was elected in 2016, returning to the office she had left in 2009 after 12 years as a prosecutor.

Among the witnesses she prepped was Chief Medical Examiner Dr. Valerie Rao, who brought the jury to tears during her gripping testimony about Cherish’s horrible injuries.

Nelson and Caliel gave powerful opening and closing statements, respectively, in both the guilt and penalty phases. 

The case now goes to a Spencer hearing, which is an additional opportunity for the defense to argue against the death penalty before Senior Circuit Judge Mallory Cooper.

For more than an hour, the prosecutors talked strategy, shared how the case has changed them and even kidded one another, such as Nelson playfully mocking Caliel for his practice of wanting evidence premarked in the exact chronological order in which it will be introduced at trial.

Here is an edited version of their discussion:

The evidence in this case was horrific, particularly the photographs. Talk about the strategy behind how much you would show the jury and how you would present that evidence.

Caliel: There was a pretrial motion filed to limit the number of photographs that we could show the jury. They (the defense) didn’t want any of the photographs shown to the jury. (The 1,200 photos were reduced to about 20.) … While we didn’t want to bombard them with things that we didn’t need to show them, unfortunately a part of their role in this case was looking at things they probably would never want to look at. But it was crucial in making sure that they fully understand what happened to this little girl.

What were their reactions?

Caliel: I don’t think there was a dry eye in the jury box. … That was the reason I chose not to show them in the guilt phase closing argument. They didn’t need to see them again. They would remember them for a very long time.

You changed that strategy during closing for the death penalty phase and showed some of them.

Caliel: I did and I was very selective about what I showed them. The injuries to Cherish were devastating all over her body, but in particular, the injuries to her private parts were horrific. Part of the reason why I ended the way I did is all week long all we had heard about was Donald Smith. I needed them to be refocused on why we were really there and that was for that little girl.

Obviously, Rayne feels horribly guilty about what happened. How did you prep her to testify in front of the jury?

Nelson: We had seen in the reactions of some in the community that people blamed her, in part. People criticized her and people judged her. We knew that it would potentially be an issue for the jury. … When you get to know her, she is exactly the type of person of whom he knew he could take advantage. He picked her and targeted her.

What do you mean by that?

Nelson: She had three little children. She was distracted, she was naïve, she was in need and she was vulnerable. He knew that. What he wanted was Cherish. He used Rayne and her naiveté to get what he wanted. It was important for the jury to understand that.

Even though she knew her intuition was telling her things were not normal, her hope was so great that maybe this was going to be a break she needed. 

Caliel: I think the biggest hurdle for Rayne was getting her ready to testify and realizing it wasn’t to defend herself. She had been attacked viciously. She had been through a termination of parental rights case in family court when she lost custody of her surviving two children. … She had been blamed by the system, she had been blamed by the citizens who were just chiming in and didn’t know all the facts. It’s only natural for her to want to try to defend herself. 

I think just getting her ready emotionally to be there for Cherish and making her realize, “This isn’t about you, Rayne. This is about Cherish. You are her voice in that courtroom. You are the person who can tell us how he met you, how he fooled you, what he did.”

How do you think she did?

Caliel: She did fantastic. She did better than I would have expected under the circumstances.

In what ways?

Caliel: Just to be able to hold herself together. We had prepared for a long time. There were good days and there were bad days. There were days when her emotions just boiled up. She couldn’t help herself from breaking down and becoming emotional. 

I think on that day she knew her role was to be a voice for her child. She did everything we could have hoped for. 

Shockingly, the defendant chose not to cross-examine her. I think that goes to show how strong she was and how raw and true her emotions were on the witness stand.

What went into the thought process when you were deciding who was going to question Rayne and who was going to handle other witnesses?

Caliel: Well, especially when we have a trial that we know is going to be lengthy like this, you try to actually schedule in rest. What I mean by that is you know that preparing and putting Rayne through her direct examination is going to be trying and long and take some time.

Then after you handle that extensive witness, let’s turn the reins over to somebody else to handle the next couple of witnesses so that you can recuperate, refocus and be prepared for your witness. Staggering out the workload is extremely helpful. 

Melissa, in your opening statement you told the jurors this case was going to change them. How has it changed each of you?

Nelson: I don’t know that it changed me, but it impacted me personally. As I said in my opening, it’s my and every parent’s worst nightmare, the idea that someone would take your child. … I don’t know that it has changed me as much as reignited my passion for this work.

Caliel: Unfortunately, because of my experience, I understood the message that Melissa was saying because these jurors haven’t been through this. I have dealt with murdered children and I remember them all.

I think all of them go with you throughout the course of your career. You remember the first child case that you handled. They become more impactful because it’s just the innocence that is lost when you lose a child.

Wheeler-Sanchez: This case has profoundly impacted my life. … Something that I thought about just for me personally is what would she (Rayne) have done if a good person with pure intentions had been helping her? What if somebody like us knew her and could help her and point her to the right people who could help provide for her needs or help provide for her family’s needs? She may never have thought to even engage with him.

It’s made me realize that I need to be seeking ways to serve my community outside of what I do as an assistant state attorney. 

Hughes: I’ve looked at a lot of autopsy photos. Just seeing that part of it, you never see them (the victims) alive. I’m able to compartmentalize that separately. 

But, having watched all of that surveillance video of them (the Perrywinkle family) and seeing them alive in what was such a happy time. They thought they had this amazing gift coming and they were so happy about it. Then to see what happened to her really affected me.

My cousin had a child during this case. Whenever I go out with them, I’m so much more hyperaware of where she is and who’s around her than I think I ever was with people before this.

How did you come up with your closing strategy of focusing on three minutes, the amount of time it took for Cherish to die?

Caliel: What was impactful for me when I listened to Dr. Rao’s testimony in deposition was her description of how long it took to actually kill Cherish. You see in movies how Jason Bourne strangled somebody out in 10 seconds on film and it’s quick, it’s done and you move on to the next scene.

Three minutes is just unimaginable. In preparing my closing argument, I took my iPhone, hit the timer and I just let three minutes pass. It was just myself in my office alone. It was uncomfortable just to sit there thinking about this for three minutes.

That’s part of the reason I interjected. I was so uncomfortable with it just on my own that I felt every 30 seconds, I’d just interject and try to guide them to what I wanted them to be thinking about.

That three-minute period of time is an eternity when you just sit there in silence. It had to seem like forever when you’re fighting for your life. I think that was the only way I could demonstrate that to the jury and have them sense the impact and the direction and the horror that she was going through.

Part of the defense testimony dealt with the office not following through on committing Smith under the Jimmy Ryce Act. How did you plan to address that?

Nelson: To recognize that Donald Smith is a system failure. Multiple different people at multiple different times over the years have had a file in front of them with the name Donald Smith on it. Doctors, psychologists, lawyers, therapists. 

Donald Smith has had competent counsel over the years. He understands how the system works. This didn’t come out in front of the jury, but he himself as pro se had been successful on a post-conviction motion – reducing a 15-year Florida state prison sentence on that attempted kidnapping to six years.

Were you concerned the jury would still place blame?

Nelson: They didn’t acknowledge that any of it was mitigating because they had that opportunity to consider it as mitigation. I think it could be troubling to some of them. 

Mark pointed out earlier today that laws were actually changed as a result of this case. Prior to this case, a defendant could not be considered for civil commitment as a result of a county jail sentence. After this case, defendants who meet certain criteria and are flagged as potentially dangerous can be. Before this, they had to go to prison.

For the first time in 4½ years, this case is settled. What does that feel like?

Caliel: The sad thing about it is, and I actually was thinking about it this afternoon after the verdict came in, is I’ve been neglecting my other cases. Unfortunately, this is one of many that we have to turn around and get back into the fight. 

There are a number of tragic cases. … They’re stacked up like boxcars. May, June trials that are important to the victims’ families.

Hughes: One of my other homicide attorneys is starting a trial next week. When the jury went out, I actually came back and mounted the evidence for that case today.

After the end of the trial when you all met with Rayne, what was that meeting like?

Nelson: Emotional.

Caliel: A lot of hugs, a lot of tears. You’re extremely grateful that you could bring some closure to what has been a very difficult time in her life. She was very appreciative.

Do you think she has forgiven herself?

Nelson: I don’t know (she said as tears welled in her eyes). 

Caliel: I think she’s working on it. I don’t know if she’s ever going to forgive herself.

For its closing argument, the prosecution focused on the three minutes it took Donald Smith to kill 8-year-old Cherish Perrywinkle.


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