JACKSONVILLE, Fla. – The attorney assigned to defend Donald Smith -- the man charged with the kidnap, rape and murder of 8-year-old Cherish Perrywinkle -- asked to be removed from the case last week, News4Jax has learned.
Public defender Fred Gazaleh's request was denied by a judge, but that decision is expected to be appealed.
Gazaleh argued he can no longer represent Smith because of a conflict within his office resulting from another inmate coming forward claiming to have evidence against Smith. The issue of Smith's representation came up in a hearing last Friday, and another hearing is scheduled for next week.
"In this case, another person who is represented by the Public Defender's Office has come forward with information that is essentially damning to Donald Smith," attorney Randy Reep said.
Reep said attorneys are governed by rules with the Florida Bar that state they must make the judge aware of any conflict with their clients. But according to the State Attorney's Office, Gazaleh's motion to be removed was denied.
"That's the judiciary keeping their calender moving," Reep said. "The state has said that the evidence that's needed that is in conflict isn't needed for the case. That may or may not be factual but the reality is Mr. Gazaleh has a duty to bring that to the court's attention."
Reep said Judge Mallory Cooper can overturn her decision at any time. And the Public Defender's Office is expected to ask the First District Court of Appeal to reverse the decision. But for the time being, Gazaleh remains Smith's attorney.
Smith, who has been awaiting trial more than a year, is scheduled to go on trial in January in the June 2013 killing of Cherish (pictured). Gazaleh has represented Smith since he was charged last year.
"I think it would be extraordinarily complicated and probably unreasonable to see that get done in a year," Reep said of a new attorney taking the case. "Imagine, you've got police internal investigations that went -- as people would say -- a poor handling of it. You have a tremendously deranged mind in Donald Smith. You have a complicated victim, Miss Perrywinkle, who is the mother of the victim."
If Gazaleh had not disclosed the conflict to the judge, he could have been disbarred, so Reep said in this case Gazaleh did exactly what he's legally required to do.