Filing # 33354162 E-Filed 10/16/2015 04:32:17 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 16-2013-CF-5781-AXXX, DIVISION: CR-D STATE OF FLORIDA, Plaintiff, v. DONALD JAMES SMITH, Defendant. MOTION FOR CHANGE OF VENUE NOW COMES the Defendant, Donald James Smith, by and through undersigned counsel and pursuant to Fla, R. Crim. P, 3.240, and moves this Honorable Court to enter an order la in the above- changing venue from this county to Miami-Dade County in the State of Fl styled cause. In support thereof, the defendant would assert as follows: FACTS The Defendant, Donald Smith, stands accused of First Degree Murder, Capital Sexual Battery, and Kidnapping of a Child. The media coverage of Mr. Smith began on June 22, 2013. Throughout the months we have been able to recover a sample of this coverage. The coverage is grouped into three categories: television reports, newspapers/articles, and blogs. In all of these forums, the coverage has been overwhelmingly negative for Mr. Smith. First, local television networks have reported on all aspects of the case. In a sampling of more than 175 reports, reporters and commentators have discussed everything from breaking news reports on “new evidence” released, to confidential conversations between Mr. Smith and FILED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 10/20/2015 08:20:17 AMhis mother. A summary and assortment of such videos will be provided to the Court and State Attomey’s Office as Exhibit A prior to hearing on this matter. Second, the local news in Jacksonville has written thousands of articles on the case. In the modem Internet age, these articles are easily accessible to the public. For instance, a search of the case on the Florida Times Union website (Jacksonville's newspaper) brings up 1,291 stories, Moreover, every Jacksonville news station has a web page dedicated to the case. On \www.news4jax.com a simple search of “Donald Smith” brings up 165 articles, and on www.actionnewsjax.com the same search brings up 184 articles. In addition to the local news in Duval County, other news outlets across the state have covered this case including Panama City, Tallahassee, Orlando, Tampa and Miami. Additionally, national publications covered the case including such publications as CNN, Fox News, Yahoo! News and The Huffington Post. Furthermore, this case was even covered internationally by MailOnline.com out of the United Kingdom. A summary and assortment of such news articles will be provided to the Court and State Attorney's Office as Exhibit B prior to hearing on this matter. Finally, there are numerous social media sites that call for justice in the case. Specifically, these blog sites call for users to express their opinions on the case, all of which are negative towards Mr. Smith. There are four different Facebook pages with more than 2,894 “likes” and there is a petition to strengthen Florida sex offender laws for Cherish Perrywinkle, which has more than 2,564 commentators, Nearly every poster has fans, or people who support the poster, so this causes exponential distribution of the posts. A summary and assortment of such social media will be provided to the Court and State Attorney's Office as Exhibit C prior to hearing on this matter.The scope of this prejudice and bias, as well as the extent this news reaches the population, can only be measured by what has been reported. There have been seven consistent themes expressly repeated by the local media and public in Jacksonville. 1, Mr. Smith is Guilty The media and the public believe Mr. Smith is guilty. In almost every news report Mr. Smith is discussed as the person who killed Cherish Perrywinkle. Although many reporters couched their negative coverage of Mr. Smith with “alleged murderer,” some have even flat out said he is guilty. For example, while discussing the past civil com ent of Mr. Smith, a reporter said “He would have been kept civilly committed indefinitely, instead of being in a Wal-Mart where he kidnapped Cherish.” Sex Offender Should Have Been Behind Bars, WJHG News (June 24, 2013, 6:39 PM), hi /www.wjhg.com/home/headlines/Sex-Offender-Should-Have-Been- Behind-Bars-212821791 html. News 4 Jax crime expert, Ken Jefferson, announced Mr. Smith’s guilt on multiple occasions: “This incident is all over the map now, it’s gone viral, because of the heinous act by Mr. Smith.” The Abduction and Killing of Cherish Perrywinkle, NEWS 4 JAX (June 30, 2013, 8:07 AM), -—_httpy/Avww.news4jax.com/politics/The-abduction-and-killing-of-Cherish- Perrywinkle/-/1875986/20777420/-/bll0soz/-/index.html; “The way he murdered this child, and then tried to conceal her body, is sickening.” Fvidence Released in Murder Case Against Donald Smith, NEWS 4 JAX (Oct. 28, 2013, 7:25 PM), hitp://www.news4jax.com/news/evidence- released-in-murdet-case-against-donald-smith/-/475880/22680018/-/qn49eqz/-/index.html, With the constant media reports relating to Mr. Smith’s guilt, it’s no wonder adults in Jacksonville began believing Mr. Smith was guilty too. An Action News Jax reporter stated,“Parents want to know why he was allowed back on the streets to prey on children like Cherish again.” State Lawmakers Push for Changes to Sex Offender Regulations, ACTION NEWS JAX (une 25, 2013, 6:26 PM), _http://www.actionnewsjax.com/content/topstories/story/State- lawmakers-push-for-changes-to-sex-offender/RoE6tP_QQEe}2elSDMqdFA.espx. The community has made it known through social media that they believe Mr. Smith is guilty. A Facebook page titled “In Memory of Cherish Perrywinkle” has more than 2,250 “likes” and nearly every post has been “shared” exponentially. A typical post reads as follows, “This Donald Smith scumbag was living with his mother and within view of a middle school;” or “I’m sorry but she raised a monster and she should be ashamed of herself.” See In Memory of Cherish Perrywinkle, FACEBOOK BLOG, = (Mar. 2014,_—'10:30. AM), hitps://www.facebook.com/InMemoryOfCherishPerrywinkle. 2. Character Denigration Mr, Smith is presumed guilty by the media, thus it has made no attempt to protect his character. The media did everything in its power to find and tell its audience anything and everything negative about Mr. Smith’s past, without presenting Mr. Smith’s side of the story. First, television stations interviewed neighbors to find out any information they could about Mr. Smith. News 4 Jax said that neighbors were always “cautious around Smith” and that anytime Smith was in the area they were “on guard.” Organizations React to A Child's Murder, News 4 JAX (June 24, 2014, 11:28 PM), http://www.news4jax.com/news/Organizations-react-to- a-child-s-murder/-/475880/20701 180/-/mOmtxmz/-/index.html. A reporter for First Coast News said, “Neighbors who know Donald Smith call him a smooth talker, and they deseribe him as having an answer for everything... Sadly people in Smith’s neighborhood knew to keep their kids away from him, a warning they wish they could have given to Cherish’s family.” Safety ExpertsOffer Insight into Habits of Sexual Offenders, Fuxst Coast News (June 26, 2013, 4:22 PM), http: archive. firstcoastnews.com/news/local/story.aspx?storyid=317882. One neighbor, Mary Gagliardi, told Action News Jax, “He bought a little stuffed horse and put it right by the driver’s dash. I said to my husband. He’s doing that to attract kids.” Smith's Neighbors Recall Odd Behavior, ACTON News JAX. (June, = -22,,—=2013,, 8:35PM), http: vww.actionnewsjax.com/content/topstories/story/Smiths-neighbors-recall-odd- behavior/xcCOhW VFbE2ckuPPVIsGvw.cspx. The local news networks also interviewed people who knew or had encountered Mr. Smith over the years. News 4 Jax interviewed Mr. Smith’s former cellmate, who talked about Mr. Smith’s deception while in prison, ‘The reporter started the segment by saying, “Smith even conned the cons into thinking he was someone he wasn’t.” He said that Mr. Smith lied to other inmates about his charges and that no one knew whom he really was. Former Inmate Remembers Donald Smith, News 4 Jax (July 5, 2013, 7:02 PM), http://www. news4jax.com/news/Former-inmate-remembers-Donald-Smith/-/475880/20857560/- (/1161imi/-/index.html, Action News Jax interviewed a man who also had kids with Mr. Smith’s ex-wife. The reporter said that something made the man, Hasty, feel uncomfortable leaving his daughter alone with Mr. Smith, “Every time I caught him in the same vicinity as her, I caught him looking at her, and she was only 2 or 3 at the time.” Hasty never let his daughter see Mr. Smith again, Justice for Cherish: Donald Smith’s Past, ACTION NEWS JAx (July 1, 2013, 11:02 PM), hup://archive.firstcoastnews.com/news/local/story.aspx?storyid=317709. After interviewing people who knew Mr, Smith, the news media then made an event out of Mr. Smith’s criminal history. For instance, Action News Jax ran a story “live from WindyHill Elementary Park,” the place of one of Mr. Smith’s alleged sex crimes. The story went on to report all of Mr. Smith’s prior crimes including: siphoning gas, driving a stolen vehicle, grand theft, violation of prob n, high-speed chase in a stolen car, unauthorized use of a sheriff's office insignia, a suspended license and burglary. New Documents Trace Donald Smith's Past to his Teens, ACTION NEWS JAX = (Mar. 6,_—-2014, 9:12, PM), htt :/Iwww.actionnewsjax.com/content/topstories/story/New-documents-track-Donald-Smith-s- inal-past/BNHOxIVXbUwdOSjBTvelitg.cspx. Most of these convictions are more than ten years old, thus they will not even be admitted into evidence. Almost every nightly news report emphasized Mr. Smith’s sex crime convictions in 1977, 1992, and 2009. Id; Donald Smith did not Meet “Sexual Predator” Criteria, NEWS 4 JAx (July 23, 2013, 7:50 PM), _http:/Avww-news4jax.com/news/Donald-Smith-did-not-meet-sexual- predator-criteria/-/475880/21 134736/-/14tleli/-findex.html; Sex Offender Should Have Been Behind Bars, supra page 3. The Abduction and Killing of Cherish Perrywinkle, supra page 3. News 4 Jax ran an entire segment on Mr. Smith’s 2009 conviction for posing as a DCF worker, It interviewed the mother of the alleged victim who said that Donald asked her daughter if she “had hair down there,” and if she was “wearing a bra.” ‘The reporter mentions that when Mr. Smith was asked about this, he said he remembers making the phone calls, but he cannot remember why he had the girl in his phone under favorites. Victim’s Mother Speaks, NEWS 4 JAX (une 25, 2013, 11:24 PM), _http://www-news4jax.com/Vietim-s-mother-speaks/- /475982/20717282/-/m1s119/-/index.html. Once the news media reported Mr. Smith’s criminal history, many segments would have an “expert” on air to help “review” Mr. Smith’s criminal history. For instance, News 4 Jax interviewed former Prosecutor Rick Alexander who said that Mr. Smith developed the ability tobecome a “con artist” based upon his former convictions of writing worthless checks and that Mr. Smith has a “pattern of interest in children,” going all the way back to the 70s. The Abduction and Killing of Cherish Perrywinkle, supra page 3. Alexander told a later program that someone made a major error in not deeming Mr. Smith a sexual predator because there were a lot of red flags in his report. Donald Smith did not meet “Sexual Predator” Criteria, supra page 6. News reports also analyzed Mr. Smith’s alleged behavior during his time in prison. According to the news media, Mr. Smith was always in trouble in jail. He broke rules, and “was sighted nearly a dozen times for possessing drugs and disobeying orders.” Id. First Coast News says he lied to prison officials and his answers changed by the day. New Documents Released on Donald Smith, First Coast. News (July 22, 2013, 10:27 PM), http://www. firstcoastnews.com/story/local/2013/07/22/46 12003/. Moreover, the news media painted Mr. Smith as someone who was not willing to help himself while in jail. It mentioned that Mr. Smith “refused to participate in his own treatment several times” and that “he dectined to be interviewed or attend therapy.” Jd. He explained that he did not want to be treated while he was incarcerated because “this program will never touch the modalities I've been through.” Id, This was mentioned without discussing any legitimate reason Mr, Smith would choose not to participate or make these statements, Even current congressmen have weighed in on Mr. Smith’s past to the media, Representative Janet Atkins said, “From the news reports it looks like he’s been engaged with the laws since the 70’s, so you're looking at 40 years where he has been engaged with some criminal behavior or another, the reports that three felony charges were reduced to misdemeanor charges certainty has me concerned.” Additionally, State Senator Aaron Bean pondered to News 4 Jax whether Donald Smith was properly reviewed under the Jimmy Ryce Act, LawmakersScramble for Answers, News 4 Jax (June 26, 2013, 11:35 PM), http: www news4jax.com/news/Lawmakers-scramble-for-answers/-/475880/20733620/- Ivscr2z/-lindex.himl. 3. Mr. Smith is a Sexual Predator? A sexual predator is defined in Florida as an individual who has committed a sexually violent offense as defined in § 775.21, Fla, Stat. (2013), whereas a sexual offender is someone who may have just engaged in simple sexual misconduct. Until this alleged incident, Mr. Smith has never engaged in or been charged with violent conduct towards a minor. ‘Thus, Mr. Smith ‘was never labeled a sexual predator. Despite these facts, the media has repeatedly labeled Mr. Smith as a sexual predator. See Brandon Jones, Cherish Perrywinkle Laid To Rest As Her Mother, Rayne Perrywinkle Blames Herself, Tae GLOBAL DispatcH = (June —-28,-— 2013, 3:26PM), http://www theglobaldispatch.com/cherish-perrywinkle-laid-to-rest-as-her-mother-rayne- perrywinkle-blames-herself-17423/; (“Smith was a predator who seized the opportunity to snatch the woman’s daughter and kill her.”); Tamara Rush, THE HUFFINGTON PosT (June 28, 2013, 3:26 PM); _ http://www. huffingtonpost.com/2013/06/28/cherish-perrywinkle_n_3516998.htmlRayne Perrywinkle Tries to Regain Custody of Her Daughters, FiRst Coast NewS (Aug. 8, 2013, 6:11 PM), _hitp://beaches.firstcoastnews.com/news/news/121133-rayne-perrywinkle-tries-regain- custody-daughters (“Convicted sexual predator Donald Smith is now facing charges.” ; New Documents Describe Murder Suspect's State of Mind, ACTION NEWS JAX (Dec. 6, 2013, 4:59 PM), http:!/www.actionnewsjax.com/content/topstories/story/New-documents-describe-murder- suspects-apparent/tDeEKRAsyU-AjOYQUMIW_g.cspx (“Convicted sexual predator Donald Smith is now facing charges.”4, Community Exposure The purpose of this section is not to condemn the outpouring of support for Cherish Perrywinkle and her family. Rather, the goal is to show the extent to which Jacksonville as a community is invested in Cherish, leading to bias on behalf of the entire area. From the moment Cherish Perrywinkle was announced missing in June, the news media began documenting the communities’ support. In describing the search for Cherish Perrywinkle, an Action News Jax reporter said, “Nearly all of Jacksonville was looking for Cherish Saturday moming.” Memorial Growing Outside of Highlands Baptist Church, ACTION NEWS JAX (June 22, 2013, 10:57 PM), _http:/Avww.actionnewsjax.com/content/topstories/story/Memorial- growing-outside-of-Highlands-BaptisoT9WC_SwOkG2fhwfCYpblQespx. After Mr. Smith's initial arrest the Perrywinkle family released a statement to Action News Jax thanking the community for its help: “No words can describe how I feel right now. The support from those I don’t even know in Jacksonville is overwhelming.” Family Overwhelmed by Support, ACTION News Jax (une 26, 2013, 5:03 PM), http /www.actionnewsjax.com/content/topstories/story/Cherish-Perrywinkles-family-receives- donations/qoaMZdsma0Ce2iRK9GiFA.cspx. According to another reporter, “the outpouring of support has been constant. I'm told it has only brought this tight knit community closer.” Community in Mourning, ACTION NewS JAX (June 24, 2013, 5:29 PM), hup://www.actionnewsjax.com/content/topstories/story/Witness-saw-Cherishs-family-minutes- before/AXhn_b1 L4kuweqyrx0vMVg.cspx. ‘A News 4 Jax reporter described it best, “When Cherish Perrywinkle was abducted and found dead, the whole community wept. Most didn’t know the 8-year-old girl, but so many wanted to help.” Help for Cherish’s Funeral, News 4 JAX (June 26, 2013, 5:59 PM),hutp://wwww.news4jax.com/news/Help-for-Ch« -fineral/-/475880/20728992/-/dujj4/- ‘index.html, Families that did not even know the Perrywinkles stopped by to bring groceries and fix their air condition unit. Vigil for Murdered 8-Year-Old Girl, ACTION News JAX (June 24, 2013, 2:26 AM), hitp://www.actionnewsjax.com/content/topstories/story/Vigil-for-murdered- Jacksonville-8-year-old/nBAwpg09hUqUdJXa7hnBig.cspx. According to News 4 Jax, there were between eighteen and nineteen hundred people estimated to have signed the guest book at Cherish’s viewing. As one reporter recalled, “While almost 2000 showed up, only about 30 knew her.” Preparing to Say Goodbye, NEWS 4 JAX une 27, 2013, 11:24 PM), ht : www news4jax.com/news/Preparing-to-say-goodbye/- /475880/20752000/-/10miury/-/index.html. At Cherish’s memorial hundreds of people were present at the Highlands Baptist Church where the pews of the church were filled. Karen Feagins, Cherish Perrywinkle Memorial, WGCU News (June 24, 2013), http:/news.wgcu.org/post/cherish-perrywinkle-memorial Additionally, Cherish’s funeral was televised live for all of Jacksonville to see on News 4 Jax. Uncut: Funeral Service for Cherish Perrywinkle, NEWS 4 JAX (June 28, 2013, 5:42 PM), hitp://wwww.news4jax.com/news/uncut-funeral-service-for-cherish-perrywinkle/- /475880/20765136/-/m2he88/-/index. html, ‘The community has not forgotten about Cherish. Nearly eight months after the tragedy, a News 4 Jax reporter said, “Everyone in Jacksonville remembers the kidnapping and murder of 8- year old Cherish Perrywinkle last summer.” RAD Kid Program Teaches Self Defense, NEWS 4 JAX (Feb. 21, 2014, 9:54 AM), hitp://www.news4jax.com/news/RAD-kids-program-teaches-self- defense/-/475880/24599178/-/13wdkSfi-/index.html, 10Cherish is remembered not only in Jacksonville, but also across the State. Recently, Florida State Senator Eleanor Sobel said this on the Senate floor: “We all remember innocent children like Cherish Perrywinkle. Who at the age of 8 was abducted from Wal-Mart, raped, strangled, and her 60 pound body found behind a church.” Legislative Session Begins with Sexual Predator Law, NEWS 4 JAX (Mar. 4, 2014, 8:03 PM), http: Awww news4jax.com/news/Legislative-session-begins-with-sexual-predator-law/- /475880/24804348/-/f4j7ssz/-/index.html. 5. Our System Let us Down Since Mr. Smi "s arrest, the news media has relentlessly told viewers that the criminal justice system failed the community by letting Mr. Smith out of jail. News 4 Jax and Action News Jax interviewed dozens of criminal defense attorneys, prosecutors, FBI agents, etc., who all made this same point, Below are just a few examples: Dale Carson, criminal defense attorney and former FBI agent: “It’s just a failure of the system.” “He should have been designated as a sexual predator.” New Documents Trace Donald Smith's Past to his Teens, supra page 6. Dr. Marcus DeCarvatho, psychiatrist that treats sex offenders: “This is a mental illness. He should not have been released to the public. You can’t rehabilitate someone who is a pedophile and a sociopath.” Smith’s Criminal History, News 4 JAx (June 24, 2013, 6:26 PM), huip://www.news4jax.com/news/Smith-s-criminal-history/-/475880/20698 168/-/60yqi/- Findex. html, Ann Dugger, Justice Coalition: “They don’t need to be in society, they don’t need to be around children, they don’t need to be around their prey.” Lunsford Reacts to Perrywinkle WWMurder, News 4 Jax (June 25, 2013, 5:51 PM), http:/Avww.news4jax.com/news/Lunsford- reacts-to-Perrywinkle-murder/-/475880/20713192/-/2958wkz/-/index.html, Ken Jefferson, News 4 Jax Crime Expert: “The system failed by allowing Smith to be released to the public.” “We need to look at the process where we release those criminals, because chances are, they are going to strike again.” Id. David Rowe, founder of No Peace for Predators: “They like children, You can’t fix that. They need to stop letting these people out of jail. It’s an epidemic. It’s getting worse and worse and worse.” Organizations React to A Child's Murder, supra page 4. It is no wonder the public, and potential jurors also believe Mr. Smith should never have been released from prison. An Action News Jax reporter said, “Donald Smith's run ins with the law over the years highlight the public sentiment that questions why he was running free to begin with.” New Documents Trace Donald Smith's Past to his Teens, supra page 6. A woman from the community highlighted the cities’ frustration when she said, “He should have never been released. Ever. I know, it’s no one’s fault.” JSO Releases Timeline of Events, NEWS 4 JAX (une 25, 2013, 11:28 PM), http:/hvww-news4jax.com/news/JSO-releases-timeline-of-events/- /475880/20717358/-/v6trhqz/-/index.html. Ultimately, this community anger fueled a campaign to change the laws. In almost every interview, memorial, or speaking opportunity, Jacksonville citizens made it clear they wanted sex offender laws changed. See generally Patrick Donges, Hearing On Sex Offenders Law Planned As Momentum Builds for “Cherish’s Law,” WICT News, (Sep. 3, 2013), hup://news.wjct.org/post/hearing-sex-offender-laws-planned-momentum-builds-cherishs-law. At Cherish’s funeral, Cheris ’s pastor said “Let’s not let another guy like this walk free so we lose another one of our babies.” Uncut: Funeral Service for Cherish Perrywinkle, supra page 10. 12A petition was started to pass a law called “Cherish’s Law.” Almost 3,000 individuals signed the petition, Cherish’s Law, CARE 2 PETITION (Mar. 11, 2014 11:46 AM), hip://www.thepetitionsite.com/735/993/920/cherishs-law/. Additionally, residents created a Facebook page dedicated to passing Cherish’s law entitled Justice For Cherish, FACEBOOK BLOG (Mar. 11, 2014, 11:00 AM), https://www.facebook.com/justiceforcherish. The page had over 580 “likes,” and nearly all of the posts to the page were shared, A common post on this page reads, “The monster that killed her should have never been let you of jail! It’s time we rise up in outrage!” Id. Unlike most citizen complaints to Congress, the people of Jacksonville were heard, Florida Representative Adkins of Jacksonville told News 4 Jax “the kidnapping and murder of 8- year-old Cherish Perrywinkle is proof that laws related to sex offender crimes against children need to be discussed and adjusted.” Hearing on Sex Offender Laws, News 4 JAX (Sep. 4, 2013, 8:34 AM), http://www.news4jax.com/news/Eearing-on-sex-offender-laws/-/475880/21771974/- /2wabwel-findex.html, The community was so active in its fight for Cherish that the Florida Senate passed four different bills to better protect children from “alleged offenders like Mr. Smith.” Legislative Session Begins With Sexual Predator Law, supra page 11. At a time when the Florida Legislature agrees on next to nothing, all four bills passed forty to zero, Jacksonville Sheriff John Rutherford was in Tallahassee to support the legislation and he said, “This has been the most bipartisan initiative I have ever seen here in Tallahassee.” Sex Offender Law up for Discussion, News 4 JAX (Mar. 4, 2014, 8:37 AM), http://www.news4jax.com/news/Sex-offender-law-up-for-discussion/-/475880/24792438/- /a93v9d/-/index. html. 13The discussion and ultimate passage of the bill has led to continuous negative conversation about Mr. Smith. Anytime “Cherish’s Law” is mentioned, the media points out that Mr. Smith was the cause of the law. Even after the passage of the bill, Florida Representative Charles McBumey reminded television viewers that this law was “too late” to save Cherish Perrywinkle, Sexually Violent Predators Going Nowhere, WIHG News (Mar. 12, 2014, 7:11 AM), http:/www.wjhg.com/home/headlines/249640001.html., 6. Indoctrination of the State’s Theory The media has slowly been building its case against Donald Smith. Every week, new evidence is leaked that can further “prove” the states theory. Even though the media admits that much of this “evidence” will not make it into Court, it has not stopped the media from reporting vigorously to prove Mr. Smith’s guilt. See New Evidence in Donald Smith Case, NEWS 4 JAX (Dec. 6, 2013, 7:16 PM), http://www-news4jax.com/news/New-evidence-in-Donald-Smith-case/- /475880/23363620/-/kw3yfl/-findex html (Reporter says that he has been told most of the newly released evidence will not be allowed in Court) Beginning with the physical evidence, the media set the scene for viewers. “The details are nauseating, and the pictures, heart breaking.” Evidence Released in Murder Case Against Donald Smith, supra page 3. A reporter for First Coast News showed pictures from inside Mr. Smith’s mom’s van that appeared to be “dark hairs” on the seats. It showed pictures of Mr. Smith, and in the words of the reporter what appear to be “scratches, lacerations and bruises on his legs, arms, and back, and an open wound on his thigh.” The reporter continues saying that the bruises could be consistent with sexual assault, while not mentioning that the bruises could be consistent with a number of other things. Flood of Documents in Cherish Perrywinkle Case 14Offers Graphic Look at the State’s Evidence, First Coast News (Oct. 29, 2013, 2:54 PM), http: archive.firsteoastnews.comi/news/local/story.aspx?storyid=333522, All three major news networks let the viewers know that DNA evidence links Donald Smith to Cherish Perrywinkle and “what that means” for the case. For example, “Investigators found Mr. Smith’s DNA all over Cherish’s body, and the likelihood that it is someone else’s, is 35 quintillion to 1.” Evidence Released in Murder Case Against Donald Smith, supra page 3; Flood of Documents in Cherish Perrywinkle Case Offers Graphic Look at the State's Evidence, supra page 15; New Evidence links Donald Smith to Cherish Perrywinkle, ACTION NEWS JAX (Oct. 28, 2013, 11:00 PM), http://www.actionnewsjax.com/content/topstories/story/New- evidence-links-Donald-Smith-to-Cherish/_8KyrhbWMkaJm_ut8DeSLQ.espx. Next the news media set out to prove that Mr. Smith premeditated this alleged crime. News 4 Jax Crime Expert Ken Jefferson said, “This person’s intention probably by putting the body in water or near water was in hopes the water would wash away some of the evidence that was on her body that he left there after he sexually assaulted her and then murdered her.” Evidence Released in Murder Case Against Donald Smith, supra page 3. One report discussed allegations that Donald Smith went to a homeless park to take pictures three straight days before the kidnapping. At the park, Mr. Smith asked a woman about a lake just miles from where authorities found Cherish Perrywinkle, A local attomey, Eric Friday explained that this was typical behavior for sex offenders like Smith, “When you have a sexual predator like Mr. Smith, they are always looking for their next victim.” The report then discusses evidence that Mr. Smith’s former celimate admitted to helping Smith take the rear seats out of his mother’s van the day before Smith used it “to kidnap Cherish Perrywinkle.” The 18reporter concludes saying, “It’s obvious he was making plans.” New Documents Describe Murder Suspect's State of Mind, supra page 8. Next the news media released Mr. Smith and his mother’s jail conversations- or more accurately, the portions of the conversation that favored the State, Specifically, the media reported that Mr. Smith asked his mother to get him a DS M-4 Book, a book that highlights psychiatric problems. Mr. Smith said he would use that to find out what level he needs to quality for treatment. He stated, “It’s a one-shot deal. I need to know what I have.” New Evidence in Donald Smith Case, supra page 14. The media did touch on Mr. Smith's potential alibi defense, but only to argue that it would fail. Multiple media outlets summarized Mr. Smith’s police interrogation as follows: He told his mom he was going to an alcoholic anonymous meeting in San Marco. He told investigators he was smoking crack with prostitutes. When they asked him why he was soaking wet, he told investigators I sweat a lot when I smoke drugs. Then once the Sergeant said we have you on surveillance with Cherish, and we see her going out of the store and into the van with you, he says oh yea she was with me but got out at a red light and ran away. That is when he asked for that lawyer. Evidence Released in Murder Case Against Donald Smith, supra page 3; see generally Flood of Documents in Cherish Perrywinkle Case Offers Graphic Look at the State’s Evidence, supra page 15. In addition to “new evidence released,” the news media allowed Cherish’s mother Rayne Perrywinkle to make many unsubstantiated claims to the media. Ms. Perrywinkle told News 4 Jax that if it had not been her daughter, it would have been someone else’s child and that “this man was trolling.” Remembering Cherish, News 4 JAX (June 24, 2013, 6:44 PM), hup://wwww.news4jax.com/Remembering-Cherish/-/475982/20699226/-/bddy59z/-/index.html. She told First Coast News, “This monster knew where we lived. He was seen in my neighborhood earlier that week and on my street. He was seen in the Moncrief area two weeks 16before my daughter was taken, that is where my daughters went to school.” Rayne Perrywinkle: “Cherish Would be Here,” First Coast News (Sept. 19, 2013, 1 32 PM), http://archive.firstcoastnews.com/news/local/story.aspx?storyid=328582. In neither of these reports was Ms. Perrywinkle asked to explain her assertions, despite the fact that there was no evidence to support them, 7. Mr. Smith is a Monster and Should be Executed A beautiful little girl was taken from her family and killed. These are powerful facts that would elicit emotion in anyone. The re ction in Jacksonville has been passionate to say the least. An Action News Jax reporter led off a segment on Cherish Perrywinkle by saying, “the 8 year old was stolen from us Friday. She was lured from a local Wal-Mart by a monster.” Police say Donald Smith is responsible. Family Overwhelmed by Support, supra page 9. One segment by Action News Jax began by showing a picture of Donald Smith with the reporter saying in the background “Parents call him the face of pure evil.” The report then switches to a random woman who says: “It makes me mad every time I see his face, because, how could you do that to a child.” State Lawmakers Push for Changes to Sex Offender Regulations, supra page 4. Criminal Defense attorney Dale Carson told Action News Jax, “These are the people that when you lay your head down on your pillow at night, you worry about.” New Documents Trace Donald Smith's Past to his Teens, supra page 6. After hearing this language, along with the alleged facts of the case, coupled by the media’s relentless coverage of Mr. Smith’s criminal history and many unsubstantiated claims about Mr, Smith's character- many people in Jacksonville want Mr. Smith killed, 17Action News Jax interviewed the mother of one of Mr. Smith’s alleged victims, who said, “I wish he was dead. I wish he was dead . . . He's sick. They need to electrocute him.” Victim of Donald Smith Says She was not Notified he was Released From Jail, ACTION NEWS JAX (Sune 23, 2013, 4:29 PM), htp://www.actionnewsjax.com/content/topstories/story/ Victim-of-Donald- Smith-says-she-was-not-notified/IV gilmS7-EmjtF VW8Y10Y g.espx. Ms. Perrywinkle told Action News Jax that she agrees Mr. Smith needs to be killed because it is the only way to keep him from harming a child again. Questions About Donald Smith's Previous Sentence, ACTION NEWS JAX (July, 3, 2013, 8:03 AM), http://www actionnewsjax.com/content/topstories/story/Questions-about-Donald-Smiths- previous-sentence/Ya_YgivkBUyCe2fvot7pag.espx. Moreover, the effect of the media coverage on the public view of Mr. Smith is best evidenced through social media, On the petition site to pass tougher sex offender laws for Cherish, there are over 2,500 signatures in support of this bill. The people who sign the petition online have the ability to write a comment along with their signature. These comments express the bias, prejudice, preconceptions, and wrath of the population, Generally, the comments show a hate for sex offenders! predators, and show how willing the population is to give these criminals the death penalty. For example, “It’s time we stand together as a nation and protect our children. It’s time for there to be a REAL punishment. Not just years in jail. They take a life they lose a life!” Another comment states, “[R]epeat offenders should be dragged through the street and then shot with a .22!” Another commentator posts, “I personally recommend execution. A child never deserves or asks for this. The only cure for a child molester is death.” Cherish's Law, supra page 13. 18Blog sites also show the communities negative opinion towards Mr. Smith, Nearly every poster has fans, or people who support the poster, so this causes exponential distribution of the posts. Many citizens believe that Donald Smith specifically should receive the death penalty, although he has yet to be found guil This creature willing[ly] gave up his humanity, Although entitled to a trial by a jury of his peers, the facts seem fairly straightforward, ‘There are no mitigating circumstances that could or should lessen the severity of his sentence, I'm a liberal to the extreme, but we as a society have the right and the duty to protect our children from monsters like this, There is no redemption for men that commit this sort of crime. Donald James Smith, Charged In Cherish Perrywinkle’s Kidnapping, Murder, Has Long Criminal History, Article with Blog" (Mar. 18, 2014. -12:36. | AM), hup://www-huffingtonpost.com/2013/06/24/donald-james-smith_n_3491034.html, Another poster says, “Florida is known for its executions, Too bad they didn’t execute this monster years ago.” Furthermore, even a poster that is generally against the death penalty, with 2,063 “fans,” stated, “I am not a believer in the death penalty, but I would not lose any sleep if guys like [Donald Smith] received "Another post turns our legal system around, “Given this depraved pig’s track record, he should be considered guilty and have to prove his innocence, then summarily executed if he fails to do so.” Id. Finally, many citizens want personal vengeance upon Mr. Smith; “I’ve never seen a better case for vigilante justice, ever.” That poster has 3,688 “fans.” Another includes the desire to “Bum the savage rapist to death.” This poster has 1,111 “fans.” Some citizens even wish to see a spectacle of his execution, “I wish people like this could be thrown to lions...;” or “(Donald Smith] deservefs] to be skinned alive in the town square and then set on fire.” Id. ARGUMENT ‘An accused in a criminal case has @ Sixth Amendment right to a fair and impartial tril, Singer v. U.S., 380 U.S. 24, 85 (1965). The defendant must be “fairly tried in a public tribunal 19ice, passion, excitement, and tyrannical power,” in order to guarantee this right. Sheppard v. Maxwell, 384 U.S. 333 (1966). Sheppard depicts how extensive pre-trial and trial publicity can deprive a defendant of a fair trial, thus in Sheppard, the Court reverses the conviction for first-degree murder. In the majority opinion J. Clark quotes J. Bell from the Ohio Supreme Court: “Murder and mystery, society, sex and suspense were combined in this ease in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conseious editors catered to the insatiable interest of the American public in the bizarre. * * * In this atmosphere of a ‘Roman holiday’ for the news media, Sam Sheppard stood trial for his life.” Id, at 356. The sensational and prejudicial nature of the coverage only heightened with the addition of State-slanted coverage of statements Mr. Smith had made to his mother, which the State will undoubtedly argue are admissions of guilt. See Skilling v. U.S, __ U.S. _, 130 S.Ct. 2896, 2916 (2010) (“[Ajlthough news stories about Skilling were not kind, they contained no confession or other blatantly prejudicie | information of the type readers or viewers could not reasonably be expected to shut from sight”) (emphasis added); Parker v. Randolph, 442 US. 62, 72 (1979) (plurality opinion) (*[T]he defendant's own confession [is] probably the most probative and damaging evidence that can be admitted against him.”) (internal quotation marks omitted); Rideau v, Louisiana, 373 U.S. 723, 726-27 (1963) (presuming prejudice where public repeatedly exposed to spectacle of defendant's confession); United States v. Thompson, 908 F.2d 648, 650 (10th Cir, 1990)(holding that a media report “containing information concerning a prior plea agreement signed by [the defendant] was highly prejudicial”). 20The Florida Supreme Court has stated that defendant has the burden on a change of venue motion, however, the court is “bound to grant a motion for a change of venue when the evidence presented reflects that the community is so pervasively exposed to the circumstances of the incident that prejudice, bias, and preconceived opinions are the natural result.” Manning v, State, 378 So. 2d 274 (Fla. 1979). A judge may order a change of venue before the case has commenced or after attempting to empanel an impartial jury. /d. Community hostility may be established by inflammatory publicity or great difficulty in selecting a jury. Holsworth v. State, $22 So. 2d 348 (Fla, 1997). Prejudice from a pre- rial publicity is presumed, however, when the publicity is sufficiently prejudice and inflammatory that it pervades the community where the trial is to be held, Murphy v. Florida, 421 U.S. 794 (1975). So dangerous is the effect of pervasive pretrial publicity on a potential juror’s mind that the Supreme Court has found that when the pretrial publicity in one case is so great, the court may disregard prospective jurors’ assurances of impartiality. See generally, Irvin v. Dowd 366 U.S. 717 (1961). Recent venue-change analysis in the United States Supreme Court tums in part on the size of the community around which the publicity swirls and where the accused will stand trial. Large populations in our Nation’s metropolises afford more opportunities to find citizens who have not heard the publicity. Smaller communities risk the opposite. For example, as the Court held in Skilling, 130 S. Ct, at 2915, “more than 4.5 million individuals eligible for jury duty resided in the Houston area. App. 627a. Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to sustain.” Id. Duval County has less than nine hundred thousand people. But the population of the proposed venue, Miami-Dade County, is over 2.5 million, creating a far better opportunity to empanel a fair and impartial jury. aaFinally, the Florida Supreme Court has offered further guidance to courts confronted with a motion for change of venue: We take and make clear . . . that every trial court in considering a motion for change of ‘venue must liberally resolve in favor of the defendant any doubt as to the ability of the State to furnish a defendant a trial by fair and impartial jury, Every reasonable precaution should be taken to preserve to a defendant trial by such a jury and to this end if there is reasonable basis shown for a change of venue a motion therefor properly made should be granted, A change of venue may sometimes inconvenience the State, yet we can see no way in which it can cause any real damage to it. On the other hand, granting a change of venue in a questionable case is certain to eliminate a possible error and to eliminate a costly retrial if it be determined that the venue should have been changed. More important is the fact that real impairment of the right of a defendant to trial by a fair and impartial jury can result from the failure to grant change of venue. Singer v, State, 109 So. 2d 7 (Fla. 1959). In the instant case, the defendant has shown a clear, pervasive, inflammatory and prejudicial coverage of his case by the pretrial publicity. The examples listed in this motion are but a very small sampling of stories and bylines incessantly reported ever since June 22, 2013. It is extremely difficult to keep track of all the prejudicial, false and inadmissible evidence that has been aired, publicized, and spread throughout the public arena. The effects of the negative coverage are best summarized by the themes expressly repeated by the media, The fact that the media purports Mr. Smith’s guilt goes to the fact that the media has been skewed in favor of the in’s side. Mr. Si prosec ’s character being denigrated, and his mislabeling of a “sexual predator”, has shown that the media was used to spread inflammatory stories, not impartial facts. ive communication with the Moreover, the advent of the Internet and its potential for intera public has captured and cultivated already negative and pervasive coverage to an entirely new level. All who have posted on social media, blogs, and websites indicate the size of the community that was exposed to this negative publicity, So much, and so frequent, was the 22exposure of all this negative publicity that it has culminated in changing Florida law. The amount of distracting and irrelevant information that is also reported, since the onset of this case, further distorts the public’s perception of this case, which has engrained in the public a desire to execute Donald J. Smith. This Court has the ability to grant the Change of Venue based on the evidence presented in this case prior to the commencement of the jury selection process. Manning 378 So. 2d 274 at 276. It will be futile to attempt to select a jury in Duval County for the current case. Because of the pervasive, inflammatory, and prejudicial nature of the media this, Court will discover the inevitable, selecting a jury in Duval County is impossible. The jury selection process will come at great expense in both time and cay tal for all parties involved simply to conclude that an impartial jury cannot be found. This honorable Court should grant the motion for a change of venue without the need to search for an impartial jury in Duval County. The defense believes that it has more than carried its burden and therefore wishes to avoid/ reduce the risk of creating any further prejudice via the listing in this pleading of additional examples. In the event that the court does not agree that a sufficient showing has been made, the Defendant requests leave to submit further prejudicial coverage and comments to the Court, Finally, the defense requests that this case be transferred specifically to Miami-Dade County, There are several reasons for this specific request. First, the publicity in the defendant's case has had pervasive effects not only in the immediate community of Jacksonville, but also in the surrounding areas as well. The Defense feels confident in expressing to this court that the same concerns expressed herein as to Mr, Smith's ability to receive a fair trial in this county are also true of all counties in Northeast Florida, Second, Miami-Dade County is sufficiently 23removed geographically to have a real effect on the defendant's ability to obtain an impartial jury. Local coverage there has not been anywhere near what it has been in, or around, Duval County. In fact, relative to its size, Miami-Dade County area was exposed to only a small percentage of all stories from June 22, 2013 to October 16, 2015. Finally, because of its population, Miami- Dade County offers a large and diverse enough jury pool to facilitate the empaneling of a fair and impartial jury in this case. Moreover, Miami-Dade County area would be better able to absorb and deal with intense media attention during the pendency as opposed to smaller communities such as those not requested. CONVENIENCE The court should also consider convenience in granting the motion for a change of venue. Miami-Dade County has a large population in the State of Florida, as such it can handle a case of is will eli this magnitude. inate any logistical issues such as lodging, travel and the court infrastructure or all parties involved. Another factor the court should consider is the significant media attention that this trial will gamer. This raises several issues and potential problems for the court and all parties involved. A larger city will provide more opportunities for sequestration of jurors and lower the probability of improper contact or media interference, Miami-Dade County also has a significant flight activity, which offers an abundant amount of flights and ease of access to not only those situated in Northern Florida, but also those witnesses who may be called to testify from out of state. Additionally, court logistics play a role. This must be considered when selecting a Change of Venue site. Miami-Dade County is no stranger to high profile cases and is fully equipped to handle such a se, 24In the alternative, Miami-Dade County is also close to another county that is far enough geographically and still has many of the same options as the first, Broward County. While Miami-Dade County is preferred by the Defense because of its’ size and logistical capabilities, Broward County serves as a viable back up. CONCLUSIOT For the reasons stated, the Defendant respectfully requests that this honorable court will enter an order changing venue in the above action. Given the unique situation presented by the Defendant's , if it remains in Duval County, his Sixth Amendment right to a trial by a fair and impartial jury will undoubtedly be violated, This court should transfer venue to Miami-Dade County, or in the alternative, to Broward County. CERTIFICATE OF GOOD FAITH Undersigned counsel hereby certifies that this motion for change of venue is made in good faith on the part of counsel. Respectfully submitted, {s/ Julie Agent Schlax Julie Agent Schlax Florida Bar No.: 0093040 200 Fast Forsyth Street Jacksonville, Florida 32202 Counsel for Defendant CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a copy of the foregoing has been furnished to the Office of the State Attorney, Mr. Mark Caliel, via electronic delivery on 16" day of October, 2015 si Julie Agent Schlax Julie Agent Schlax 25