Legal jockeying in Will Smith killing continues in advance of hearing; video footage request denied _lowres

Advocate staff photo by MATTHEW HINTON--Former NOPD Capt Billy Ceravolo, right, and former Saints player Pierre Thomas become emotional by a projection of former Saints player Will Smith, #91, and Smith's wife Racquel Smith during a visitation at the Saints Indoor Training Facility in Metairie, La. Friday, April 15, 2016.

Legal jockeying resumed Friday over the murder case against Cardell Hayes in the killing of former Saints lineman Will Smith, with allegations of judge-shopping from both sides for a preliminary hearing scheduled for next week.

Meanwhile, an attorney for Billy Ceravolo, a former New Orleans Police Department captain who had dinner with Smith the night he was killed, requested and was denied a subpoena for video footage from the Windsor Court Hotel.

The attorney, Tanya Picou Faia, wants to show that Ceravolo, a close friend of the slain athlete and his wife, Racquel, was nowhere near the scene when gunfire erupted on a Lower Garden District street.

Orleans Parish Magistrate Judge Harry Cantrell rejected the subpoena, saying any such video evidence amounted to pretrial discovery to which Faia wasn’t entitled.

Ceravolo, who acknowledges showing up at the scene following the shooting, hasn’t been charged with any crime, though Hayes’ attorney has suggested there was foul play by a former NOPD officer following the killing at Sophie Wright Place.

Police Superintendent Michael Harrison pulled Ceravolo’s badge as a reserve officer pending an investigation into Ceravolo’s actions following his friend’s killing. But Faia, who declined to specify what Ceravolo did there, said that’s the extent of it.

“The best I can equate it to is a time out,” Faia said of Harrison’s action. “To the best of my knowledge, (Ceravolo) is under no criminal investigation, nor has he been disciplined. He has not been interviewed by anyone” from the NOPD’s Public Integrity Bureau.

Smith was shot eight times, seven in the back, about 11:30 p.m. April 9 after what witnesses described as a volatile argument involving several people following a three-vehicle collision.

Hayes’ lead attorney, John Fuller, has suggested the police investigation was tainted and he asked Mayor Mitch Landrieu and Harrison to recuse the NOPD from the investigation. The city has declined, and the State Police refused to take over the probe.

Though Fuller has never explicitly admitted that his client killed Smith and shot his wife, he appears to be setting up a self-defense claim. He has described his client as “legally not guilty” and said Hayes was not the aggressor that night.

The question on Friday, as the 6-foot-4-inch Hayes stood towering over other offenders in Magistrate Court, was whether Cantrell should preside over a preliminary hearing scheduled for Thursday at which Ceravolo and former Saints running back Pierre Thomas have been subpoenaed to testify.

Both men were with Smith and his wife, dining late at a Magazine Street restaurant, before the crash that precipitated the gunfire 10 blocks away. And both Ceravolo and Thomas were seen at the scene following the shooting. A source said Ceravolo’s name appears on a police sign-in sheet at the scene.

Magistrate Commissioner Brigid Collins set bail for Hayes at $1 million shortly after his arrest, but Hayes’ attorneys asked Cantrell — who is elected, not appointed like Collins — to preside over the preliminary hearing.

Assistant District Attorney Abigail MacDonald said Hayes’ defense team had rigged the system to secure Cantrell for a hearing to determine whether there is probable cause to hold Hayes on the murder count. She said Fuller and Hayes’ other attorney, Jay Daniels, waited two days to request a preliminary hearing, until Cantrell was on the bench.

“Why didn’t they ask for it on the first appearance? Why didn’t they ask for it when they went back the next day?” she asked. “Because they were forum-shopping.”

Daniels said it was District Attorney Leon Cannizzaro’s office that was forum-shopping, and Fuller said political pressure “has been coming from folks who will remain unnamed” to have Collins, a former prosecutor and private attorney who only recently was appointed a magistrate commissioner, to preside over the preliminary hearing.

“I find it disingenuous that there’s a suggestion we are forum-shopping. That’s ridiculous, judge,” he told Cantrell.

Cantrell ruled that he would conduct the preliminary hearing, citing the case of New York real estate heir and accused murderer Robert Durst, who appeared in the same courtroom for a similar hearing before Cantrell at the request of prosecutors.

“I’m going to maintain jurisdiction over this case up until indictment,” Cantrell said.

The hearing, scheduled for Thursday morning, would be canceled should Cannizzaro’s office secure an indictment against Hayes from a grand jury in the next week, as many expect.

Grand jury proceedings are held in secret. Fuller said this week he has asked Cannizzaro to allow Hayes to testify before any grand jury.

A spokesman for Cannizzaro’s office declined to comment on the case, citing office policy.

Follow John Simerman on Twitter, @johnsimerman.