Juror No. 12 couldn’t stop the train.
He sat at the far corner of a long table in the attic of the Orleans Parish courthouse, banging his fists in a rage.
One by one, the undecided jurors in the room were lining up to find Cardell Hayes guilty in the killing of Will Smith, a hero from the New Orleans Saints' epic Super Bowl win in 2010.
"This is insanity! You said to the judge you would uphold the law! What I'm hearing from you guys is you have doubt. Nobody here knows exactly what happened. That's doubt!" he recalled arguing.
“At one point I stood up on my chair,” he said. “I got put down pretty quickly.”
At 25, he was the youngest person on the panel of eight women and four men chosen to cast judgment in a trial that had gripped New Orleans like no other in recent memory.
But because Louisiana allows split jury verdicts, Juror No. 12’s judgment wouldn’t matter in the end.
Only 10 of 12 votes were needed for a conviction, and once it became clear that he and the jury foreperson were set on acquittal, the rest of the group tried to find a consensus without them.
Those 10 jurors would go on convict Hayes of manslaughter in Smith’s killing and attempted manslaughter for a shot that struck Smith’s wife, Racquel, in both legs.
By the time Juror No. 12 launched into his tirade that Sunday night in December 2016, the majority was already homing in on an outcome unique to Louisiana justice. Oregon, the only other state to allow split verdicts, does not permit them in murder trials.
In any other state, the same trial likely would have ended hung, jurors on both sides of the verdict said, because the two holdouts said they were firm in their view that the evidence fell short.
That could have meant a retrial for Hayes, or perhaps an offer from prosecutors to plead guilty in exchange for an agreed-upon sentence.
Instead, Hayes’ conviction meant a sentence of 20 to 60 years, thanks to a “firearms enhancement” that prosecutors invoked before trial, triggering the 20-year minimum.
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Judge Camille Buras later handed Hayes a 25-year prison term. With good time, he will be due for release in 2037, when he is 50.
The accounts of four people on the Hayes jury reflect what some academic studies have shown: When consensus is optional, the nature of deliberations themselves — and the decisions that result — can change significantly.
A tragic showdown
Hayes killed Smith late on a mild Saturday night in April 2016, pumping eight shots into the Saints star after a violent car crash and shouting match in the Lower Garden District. Hayes placed his .45 caliber handgun on the hood of his Hummer, howled a curse and waited for the police.
He would break down sobbing hours later when they told him who he’d killed.
A New Orleans native, Hayes is a 300-pound bear of a man who played offensive lineman on a local semi-professional football squad and admired Smith’s skills. Smith, 34, was an NFL star from New York who stayed in New Orleans with his wife and three children after a knee injury ended his playing career.
Then 28, Hayes claimed he had fired in fear for his life. But when the trial cranked up eight months later, the city seemed poised for payback from the man who had snatched away the one-time captain of the Saints defense.
A parade of Saints luminaries turned out during the weeklong trial to show support for Smith, his injured widow, and a conviction.
Sean Payton and Drew Brees squeezed into packed courtroom benches. Deuce McAllister, the former Saints running back, testified as a character witness for his slain teammate.
But if the city saw the case as a slam dunk, jurors were not so sure as they began deliberating.
Smith had been drunk — three times the legal limit — before the showdown. Video suggested that Smith had bumped his Mercedes into the rear of Hayes’ Hummer and driven off without checking for damage.
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Hayes testified he was just trying to track Smith’s license plate when he crashed into the back of the Mercedes.
Things went south from there. Smith and his male passenger, Richard Hernandez, leaped out and charged up to Hayes’ Hummer, and witnesses said Hernandez had ripped off his shirt and was spoiling for a fight.
As the jurors settled into their seats around the table upstairs, Hayes leaned back in his chair at the defense table, stared up at the courtroom ceiling and shut his eyes.
Interactive graphic by DAN SWENSON | THE ADVOCATE
Getting to a verdict
Within the first hour, while nibbling on Popeyes chicken, the jurors found some common ground.
They dispensed quickly with a charge of aggravated criminal damage to property, agreeing there wasn’t enough evidence that Hayes intentionally rammed Smith’s Mercedes.
That decision led to a bigger one: Unanimous agreement that Hayes was not guilty of murder.
"We did a straw poll. Not one juror in that room was willing to convict him of murder," said Juror No. 6, Laura Lee Fincannon, a marketing specialist.
“The charges seemed really hyped up to us," said Juror No. 3, a college English instructor who asked not to be named. "Murder, nobody thought that was possible."
It wasn’t clear at that point Hayes would be convicted of anything, said the four jurors who spoke with The Advocate.
Juror No. 12, who declined to be identified by name, and the foreperson, Laury Bourgeois, made it clear they didn’t see enough evidence to convict Hayes of any crime.
Yet Fincannon, 57, and the other juror felt just as strongly that Hayes had to pay a price.
The Advocate’s review of nearly 1,000 trial verdicts found that in at least some parishes, the split verdict system can have the effect of marginalizing black jurors.
The right of a defendant to be judged by “a jury of one’s peers” is a bedrock concept in American justice, dating to ancient English common law.
Both Hayes and Smith were black, as is about 60 percent of Orleans Parish. So, too, were five of the 12 jurors on the panel — an average makeup for an Orleans jury.
But while the newspaper’s research shows that black jurors are more likely to dissent with a majority verdict than white ones, that wasn’t the case here, jurors said.
"A couple of black folks were hell-bent that he was going to pay: 'He had a gun. He is not walking on this,'” Fincannon said. "It was a principled issue, that he was responsible, he contributed."
That left two jurors on either side and eight “in the middle,” Fincannon said.
The views of the two jurors who favored acquittal — both of them white social workers familiar with the New Orleans justice system — were respected by the others, all four jurors said. And easily enough ignored.
"It was very clear from the outset that people who were voting not guilty were not going to change their minds,” said Juror No. 3, the college instructor. She spoke to The Advocate on condition of anonymity, saying she suffered panic attacks after the trial, fearing she’d be outed as a juror.
“We knew that we only needed 10 jurors to convict,” she said, “so we set out for that goal rather than the full 12.”
National studies show that in the 48 states where unanimity is required, a hung jury with one or two holdouts is the exception rather than the rule. In about 6 of 10 hung juries, the bloc of dissenters has more than two people in it.
But in Louisiana, trials ending with one or two holdouts are commonplace, in part because those votes don’t get in the way of a result.
An Advocate analysis of nearly 1,000 trials across the state found that about 40 percent ended with such divided verdicts.
Several academic studies — mostly based on mock jury experiments — have found key differences between jurors who deliberate when unanimity is required versus those operating under split-verdict rules.
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Not surprisingly, jurors needing unanimity deadlocked more often. They also exchanged more information and recalled more testimony, some of the research showed.
Juries operating under split-verdict rules were more likely to be “verdict-driven” rather than “evidence-driven," one study found. They took straw polls earlier. Factions formed. Discussions were less thorough, more combative.
Juries operating under split-verdict rules also were more apt to return guilty verdicts on the top charge — and less likely to register satisfaction in the process.
“There’s this whole idea that a jury should speak with one voice. When you have a nonunanimous verdict, many of them walk away feeling like they did not succeed. They did produce a verdict, but they don’t feel as good about it,” said Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts.
Juror No. 3, the 34-year-old college instructor who ultimately voted to convict Hayes of manslaughter, acknowledged that the split-verdict law allowed them to simply set aside the views of two jurors.
"If it had had to be unanimous, I think the flaws within the system, the opinions of those who work within it, would have mattered more than they did," she said of the two holdouts.
A typical jury
Bourgeois, the forewoman, couldn’t bring herself to convict.
The 63-year-old insisted Will Smith's culpability — driving drunk, probably speeding, bumping Hayes' SUV and driving off — factored into her vote.
So did the actions of Hernandez, Smith’s passenger.
"There's an element of contribution you just can't ignore," she said. "The place it really got murky for me was all the gun stuff and the Hernandez stuff. There was really no way to tell clearly what happened there."
Bourgeois knew both the district attorney and the judge in the Hayes trial personally, having worked years earlier in the Orleans DA’s office as a victim advocate.
She made it on anyway as Juror No. 8. More important than race, she said, were other themes that struck her from the front row of the jury box, she said.
"For me to sit on a jury and look at our community, the economic issues, celebrity issues, power issues, criminal-justice issues — that all was playing out in front of me. It was overwhelming," said Bourgeois, who divides her time living in the U.S. and France.
Ultimately, she said her vote was based on the evidence.
“It was real clear we did not have the whole picture,” she said. “As far as I was concerned, not guilty was easy for me.”
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Some jurors stood up beside the table and recreated the scene of the crash and shooting.
Murder was out, but they weren’t ready to acquit Hayes, either.
Fincannon said she was the first to broach a manslaughter conviction.
She kept thinking about manslaughter during the trial. It seemed to fit the scenario, she said, but she didn’t know it was an option until Buras read the jury instructions.
“I thought it was murder or walk. All of us were surprised,” she said. “The only thing that had been discussed up until that point was murder.”
Under Louisiana law, murder requires a “specific intent to kill or inflict great bodily harm.”
Manslaughter is a killing committed “in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.”
To Fincannon, "(Murder) is not what it was,” she said, adding that she thought Will Smith “brought a lot of it on himself."
While disappointed in Hayes’ conduct, jurors were dismayed at how prosecutors had portrayed the killing as an execution, and they didn’t appreciate the publicity surrounding the trial.
“One thing we talked about was just how much the city wants to protect Will Smith, alive or dead, and how we had to square that with the truth,” said the college instructor.
An Orleans Parish jury found Cardell Hayes guilty of manslaughter on Sunday for pumping eight bullets into former New Orleans Saints defensive…
Hayes had maintained on the witness stand that he heard but didn't fire the first shot — the one that struck Racquel Smith — before he began to shoot at her husband. No other gun turned up, though, and Fincannon said Hayes' claim made little sense.
She has a theory: Hayes first fired the bullet that hit Racquel Smith accidentally after seeing Will Smith turn for his car, where police later found a holstered gun; then, Hayes reacted to his own shot.
"I believe he was scared. ... It was a heated moment. He hears the gun go off, not realizing he's the one that did it. Now he needs to protect himself," Fincannon said.
‘I’m going to vote guilty’
The jurors returned to the courtroom nearly four hours into deliberations, asking Buras to re-read several jury instructions, including the definition of manslaughter.
Then they filed back up 26 carpeted steps, past boxes of old case files and a framed quotation by Learned Hand, an esteemed 19th-century jurist.
"Justice is the tolerable accommodation of the conflicting interests of society," it read.
Though jurors aren’t supposed to weigh punishment, they often do. This group began to talk about how many years Hayes might serve for manslaughter, unaware of the 20-year minimum that prosecutors had installed.
"I stood up in that room and said, 'I hope you know, he's still going to get 20 or 30 years.' I heard people say, 'No way,' he's going to get a couple years,'" Juror No. 12 said.
They speculated that Hayes might get five to 10 years.
"We talked about that a lot, because we were worried that they were going to go for the maximum sentence. And we didn't want that to happen," said the college instructor who voted guilty.
They went around the table, taking a straw poll after 9 p.m. The vote this time was 9-2 to convict Hayes of manslaughter and attempted manslaughter.
One juror, a young man, abstained. Hearing the votes, he flashed a look of despair, knowing he was the last one on the fence. Eventually, he came around.
"He said, 'I'm going to vote guilty.’ He just didn't want (Hayes) to have to pay a steep price for it," Fincannon said.
The man asked for more time to be certain. It was nearing 10:30 p.m., more than five hours into deliberations.
The jurors had been sequestered for a week, relieved of their phones and holed up at night in hotel rooms stripped of TVs. Their bags were packed. A few had grown restless.
"He came back and said, 'No, I'm sure.'" Fincannon recalled. "But you can tell he was sick-hearted about it."
The two jurors in the minority “would argue, but toward the end, they just sort of realized it was going to happen,” the college instructor said. They weren’t happy about it.”
‘It sickened me’
Bourgeois said she had cried every morning and night during the trial.
"It broke my heart to watch” the last dissenter change his vote, she said. Later, she sent a letter to the judge, urging leniency for Hayes, who stood in a dark suit as the jury returned with the verdict.
The judge polled each juror, asking whether they agreed with the verdict. Juror No. 12 kept shaking his head.
The college instructor said she got home "afraid that people would find out who I was." She drank heavily through the holidays, she said.
Had Cardell Hayes killed Will Smith in practically any other state, he would not have been found guilty.
She was trapped by the law, she lamented, compelled to convict Hayes while having no say over his punishment.
"The right to a trial by a jury of one's peers is something I take seriously," she said. "But I feel sick to my core that I participated in a system which unjustly punishes black men, and that is a guilt that I will live with for the rest of my life. I would still vote the same, based on the evidence I saw. But I will never be happy about it."
To Fincannon, convicting Hayes of murder was out of the question, but so was setting him free. She too had hoped the judge would go easy on Hayes.
"You have a young man, who has a child, who is on trial for his life. Will (Smith), on the other hand, is X-times the legal limit and a violent drunk," she said.
"I came home, and I cried. It sickened me. There was nothing good coming from this."