A well-known football player is shot seven times in the back. Police say an enraged driver cut him down in fury over nothing more than a slight fender bender.
The case against Cardell Hayes might seem insurmountable at first glance, even for the most skilled defense attorney. The 28-year-old New Orleans East man with a criminal record is accused of shooting Will Smith, along with his wife, in front of at least four of the former Saints star’s acquaintances.
Lawyers consulted by The New Orleans Advocate, however, said there may be a strong case to be made for Hayes, who, according to the police, identified himself as the shooter to them at the scene and who appears certain to claim he fired in self-defense.
Much depends on the conclusions of the ongoing police investigation, such as whether Smith ever wielded a gun or made threats against Hayes. But based on the limited information known now, some attorneys give Hayes a fighting chance.
Hayes’ defense team may lean heavily on Louisiana’s version of the stand-your-ground law, a recent variation on the time-honored doctrine of self-defense that became a household phrase after the controversial killing of Florida teenager Trayvon Martin in 2012.
John Fuller, Hayes’ lead defense counsel, has not said his client will claim self-defense in court. But his public proclamations, thus far, have hinted heavily at that strategy.
“My client was not the aggressor in terms of the behavior that happened after the accident,” Fuller said Sunday. “My client is claiming that he’s not guilty, and that’s what we intend to show.”
Fuller and an attorney for Smith’s family, Peter Thomson, held dueling news conferences on Wednesday, sketching out alternate versions of what happened near Sophie Wright Place and Felicity Street shortly before 11:30 p.m. Saturday.
Thomson said a confrontation over a minor, three-car collision had seemingly been defused when Hayes suddenly started shooting, wounding Smith’s wife, Racquel, in both legs, and killing Will Smith with eight shots, including seven to the back.
Thomson said Smith never made threats to Hayes, never reached for the 9 mm gun he had stowed away in his Mercedes SUV and had his back to the killer when the shooting started.
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While stopping short of sketching out a detailed narrative, Fuller said a witness told him Smith had been in possession of a gun, and he has asserted that Hayes and others felt threatened.
Whether Hayes, indeed, felt threatened could carry great weight at a trial. Louisiana law defines justifiable homicide as a killing committed in self-defense by someone “who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm, and that the killing is necessary to save himself from that danger.”
The words “imminent” and “necessary” will be key for jurors seeking to apply the law to the split-second decisions made Saturday night.
To prevail on a self-defense claim, Hayes’ defense team likely will need to demonstrate that Smith declared he had a gun — police found a fully loaded 9 mm handgun in his Mercedes SUV — and that Hayes had reason to believe the retired athlete intended to use it.
The statute in question — La. R.S. 14:20 — includes a “stand-your-ground” provision that says a person “not engaged in unlawful activity and who is in a place where he or she has a right to be” has no duty to retreat before using deadly force.
“Jurors (at Hayes’ trial) will be instructed that they cannot consider whether or not an avenue of retreat was available because Louisiana is a stand-your-ground state,” said Dane Ciolino, a Loyola University law professor. “If a person’s life is in danger, they can meet force with force.”
David Belfield, a New Orleans defense attorney, predicted an Orleans Parish grand jury will not even indict Hayes because he has a demonstrable self-defense claim. He pointed to Hayes’ decision to remain at the scene even after the shooting. “He didn’t try to run or hide,” Belfield said.
The testimony of eyewitnesses will be vital in determining whether Smith threatened Hayes, Belfield said. Prosecutors, if they accept charges against Hayes, may be able to rely on the testimony of Smith’s wife and four more acquaintances who were present, including Smith’s friend and former Saints teammate Pierre Thomas. Hayes, on the other hand, has only one witness known to be in his corner — a passenger in his Hummer who claims Hayes saved his life.
Fuller said police are in possession of a video showing the moments shortly before the shooting, which could also prove critical in showing which parties made threats.
If Smith threatened Hayes, Belfield said, it doesn’t matter whether Hayes fired once or 1,000 times.
“That’s the moment of truth right there,” the lawyer said. “You place me in the position of having a reasonable apprehension for my safety, and I’m either going to be hurt or be killed if I let you get to that gun.”
“Based on the limited information I know,” he added, “I believe the kid (Hayes) did the right thing.”
However, Roger W. Jordan, a defense attorney who formerly prosecuted murder cases under former District Attorney Harry Connick, said many observers appear to have overlooked a provision in Louisiana law that he described as “the aggressor doctrine.” La. R.S. 14:21 says that anyone “who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith.”
Fuller has repeatedly stated his client was not the aggressor in the incident. Prosecutors likely will argue, however, that Hayes followed Smith’s vehicle after an initial traffic incident on Magazine Street, caused a second, bigger collision moments later and then accosted the man.
“Unless you show me something different, Hayes became an aggressor here and did not withdraw from the conflict,” Jordan said.
That was the argument made by Thomson, the Smiths’ attorney, on Wednesday.
“I’m aware of nothing that Will Smith did that would cause this killer to be afraid of his life to the point where he would follow him after the situation has been defused … and then shoot Will Smith in the back eight times,” Thomson said. “There’s nothing, nothing Will Smith could have ever said to cause that.”
Jordan also raised the possibility that Hayes could face first-degree murder charges — and a possible death penalty — in Will Smith’s death, rather than second-degree murder, if prosecutors claim he intentionally shot Smith’s wife. One of the so-called aggravating circumstances required for a capital conviction is “knowingly creat(ing) a risk of death or great bodily harm to more than one person.”
However, Ciolino, the law professor, said he doesn’t believe the shooting of Smith’s wife will complicate matters for Hayes “if he believed Will Smith was going for a gun and that belief was reasonable.” The fact that Smith was shot eight times, he added, “is not inconsistent with the theory that he was reaching for a gun in the glove box.”
“So many times in criminal court, you see defendants making ridiculous, implausible arguments,” Ciolino said. “This is, based on everything that we now know, a case where a self-defense justification is colorable.”
“I don’t know if it’s going to prevail at the end of the day,” he added, “but it’s certainly not frivolous, and Mr. Fuller certainly has much more to work with than most criminal defense lawyers have at most trials.”
Will Smith Memorial Service
When: 2 p.m. to 7 p.m. Friday. Open to the public.
Where: Saints’ indoor practice facility, 5800 Airline Drive, Metairie.
Parking: At the Saints complex, with overflow at Zephyr Field.
Photos and video footage will celebrate Smith’s life both on and off the field. Those wishing to pay their respects will be able to sign traditional and virtual guestbooks, as well as prayer cards. There will be no formal ceremony or funeral service.
‘Stop the Violence’ Second-Line
When: 6 p.m. Friday. Open to the public.
Where: Half Moon Bar & Grill, 1125 St. Mary St.
Musician James “12” Andrews will lead an anti-violence second-line in the area where Will Smith was shot. After meeting at the Half Moon Bar, the marchers will proceed to the corner where Smith was killed, Sophie Wright Place and Felicity Street, then continue to the Ooh Poo Pah Doo Bar in Treme, 1931 Orleans Ave.