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After 19 days, Will Smith's shooter indicted following courtroom theatrics

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The first hearing in the shooting death of the former New Orleans Saint was anything but routine.

New Orleans Saints OTA Photo by Sean Gardner/Getty Images

NEW ORLEANS -- The courthouse on 2700 Tulane Avenue has had its circus moments, to be sure. A month ago, a defendant punched a sheriff and escaped from the courthouse. In May 2015, another man facing a 10-20 year sentence for gun possession just slipped out of court and never returned.

Thursday proved to be no different. Cardell Hayes, the man who shot former Saints defensive end Will Smith and his wife, Racquel, faced a preliminary hearing to determine if there is enough evidence to proceed to trial.

The shooting death has gripped the city, dominating news coverage and local conversations. More than an hour before the 10 a.m. start time, dozens of New Orleanians flooded the small confines of the courthouse and packed shoulder-to-shoulder into the three rows of allotted space for observers.

Among them were coaches from Warren Easton High School, where Hayes played football a decade ago. Big Freedia, the "Queen of Bounce" who recently appeared in a Beyoncé video and pled guilty to her own federal theft charges, sat with Hayes' family and friends in the court of Magistrate Judge Harry Cantrell.

Twenty minutes past the scheduled start time, the man they'd come to support hadn't even entered the courtroom. Women passed notes on paper asking "where's Cardell?" before the people in the stands were eventually removed 10 minutes later by a court clerk and sheriffs, for an undisclosed reason, leaving only legal pundits and media before the court.

"Fuck this," one woman cried out in disgust. "You should kick the media out, too."

People came for what was supposed to be a routine preliminary hearing. They were there to hear witness testimony and a decision on whether there was probable cause to bring Hayes to trial.

At 10:45 a.m., Hayes' defense attorney John Fuller entered the room after the hearing was delayed. As one of the city's most notable criminal defense lawyers, Fuller's bravado is unparalleled. He stood, unbothered, in a custom grey pinstriped suit, wearing cuff links the size of oysters. One look around the courtroom and Fuller smirked. Judge Cantrell entered the room 10 minutes later.

It's been 19 days since Smith was left slumped over in the driver's seat of his Mercedes sports utility vehicle after the shooting in the Lower Garden District. Only five minutes into the first step of a long judicial process, the courtroom was already in shambles.

* * *

Earlier Thursday morning, Hayes had been taken from his cell to the district attorney's office without notice to Fuller. Fuller was tied up with other cases, and a grand jury in Hayes' case, rumored for weeks to have issued an indictment before the hearing, was meeting in secret. Fuller had initially requested that Hayes be allowed to testify in front of the grand jury on April 21 -- a meeting that never happened -- in what would have been an odd move for the defense. Prosecutors usually dictate the proceedings in front of a grand jury. The defense is not allowed to cross-examine, object, call their own witnesses or even speak to jurors during the closed-door convening.

Instead, the district attorney's office scheduled the grand jury hearing for 9 a.m. and the preliminary hearing for 10 a.m. on the same day, officially rendering the hearing a secondary procedural given that witnesses, Hayes and the DA -- everyone except Fuller -- would be present for the grand jury. A grand jury indictment would've negated the need for a preliminary hearing.

Fuller, luckily, was able to prevent Hayes from testifying before the grand jury without his attorney present, their conflict the reason for the initial delay. It was a crucial save. Once Fuller was given the floor to begin, his first order of business was questioning the state's ethics in slating both hearings for that morning.

Most of the 23 witnesses involved had been subpoenaed for the grand jury hearing, leaving both teams short on witnesses for the preliminary hearing. The prosecution declined to call any, further proof that the hearing was supposed to be a secondary affair played out before a crowd while the real judicial work was done in private. So, the defense seized on its captive audience.

"That’s a violation of the law. I’ma call it what it is," Fuller said, claiming the state wanted to get the grand jury done before the hearing to "jam an indictment down our throats."

Cantrell heard the objections, but denied Fuller. The hearing went on as scheduled. If Fuller had an ethics complaint, Cantrell told him to take it elsewhere.

Hayes entered the courtroom at 11:15 a.m. His demeanor was the same as Fuller had described for weeks to anyone who would listen: calm, nonchalant even, as if he hadn't shot a man dead weeks ago and wasn't facing the most crucial moment of his life.

With his client seated, Fuller took his first jab at the prosecution. Since they didn't have witnesses prepared, lacked probable cause and planned to stall for an indictment, he argued that Hayes should walk free.

Fuller was smug, in the same way as an intelligent athlete mocks an opponent who can’t stop them on a corner fade route. His knowledge of the law had already stymied his opponents and it was clear that he didn't plan to stint on the rhetoric.

Cantrell was already distressed minutes into the hearing. He had to take another 45-minute recess to decide if he would let a high-profile defendant walk free on a grey area of the law.

* * *

Tyler R. Tynes

Defense attorney John Fuller.

As Cantrell reviewed if he'd release Hayes, family members and friends bombarded the defendant with shows of love. They waved to him. Hayes blew kisses back to familiar faces and appeared jocular.

Fuller sat next to him, trading small talk with Hayes and the gallery while intermittently brandishing his purple handkerchief, a match to his tie, to mop up the sheen he'd worked up casually explaining the appellate law to a DA and judge in such a way that they questioned their own knowledge.

At noon, Cantrell returned from the recess to tell the waiting crowd that Hayes wasn't going to be released. The judge explained that the state didn't need to call a witness and that Hayes' arrest at the scene constituted probable cause.

Losing the first round, Fuller shrugged, but continued his calculated onslaught against the prosecution once it was time to call witnesses. From the first reports of the case, which has grabbed hold of New Orleans, Fuller has sought to carve out a narrative that benefits Hayes in a case that will undoubtedly be tried in public perception. And the prosecution tried to stall.

His first witness, EMS worker Sherry Pierre, who responded the night of the incident, maintained that Hayes was tranquil when she saw him. He didn't even curse.

Fuller asked her if she smelled or detected alcohol on Smith or his wife. A swift objection came from Mark Burton, an Orleans Parish prosecutor. This was a part of Fuller’s long game: to lay seeds for Fuller's version of events -- that Hayes acted in defense, not out of malicious rage -- a narrative that was impossible to prove in this venue.

The objection was sustained, thus beginning a long afternoon of legal maneuvering that was destined to go nowhere, with Fuller introducing speculation while the prosecution stalled to give the four-person grand jury time to indict.

When prosecutor Burton cross-examined, it took only four questions for Fuller to grow incensed and object on the grounds of redundancy. Cantrell overruled the objection three times before sustaining. Burton didn't ask any additional questions and glided back to his desk.

And so came the second witness. Fuller called Amanda Williams: the 5'7, petite white NOPD officer who arrested Hayes had been uniformed during the response and was wearing a body camera. Like every other witness, she agreed that Hayes was unperturbed at the crime scene. He didn’t try to evade the police and he responded to every question asked of him in a polite manner. Fuller, again, feigned weariness of the formalities and struck again.

Fuller asked Williams if Smith’s appearance in the vehicle seemed like he was reaching for a gun.

Objection.

Williams said she didn’t observe the inside of Smith’s vehicle. Then Fuller upped his ante. He asked Williams if former NOPD captain, William Ceravolo, went into the car for any reason.

Objection. Sustained. Fuller re-phrased the question. Williams said she didn’t know.

"So, maybe he did and maybe he didn’t. You just don’t know," Fuller offered.

It was nearly 1 p.m. and after more than three hours, the indictment the prosecution had stalled for was nowhere in sight.

Fuller called up his final witness -- his closer. David Olasky, a thin, white man, described as a private investigator hired by the defense, testified that he'd interviewed six witnesses at the scene and referred to them as Witness 1 through Witness 6 in order to evade pre-trial hearing rules, which prevent releasing the identity of another witness.

As Olasky was questioned by Jay Daniels, another member of the defense team, he described Witness 1 as a woman who arrived at the scene after the shooting. Burton tried to object on the grounds of hearsay but misspoke, calling Daniels "Mr. Carter," which earned him sour looks from the defense.

Over Burton's strenuous objections that Olasky's testimony amounted to hearsay paid for by the defense, Olasky recounted that Witness 1 saw ex-police captain Ceravolo take a gun from Smith’s vehicle, and that Smith’s position in the driver’s seat made it appear he was reaching for something.

"The driver’s side door of the Mercedes was open. She could see a man slumped in the driver’s seat, and later on she saw another man come and take a gun from the Mercedes," Olasky said.

Olasky's testimony opened room for the argument that Hayes felt threatened enough to invoke Louisiana’s "Stand-Your-Ground" stipulations, the same provision that allowed George Zimmerman to walk free after killing Trayvon Martin in Florida.

The defense’s plans were running in unison. The original allusion from Fuller earlier in the month that a toxicology report would show more about Smith’s character, the linking of Ceravolo -- who had dinner with Smith prior to his death -- to Smith after the killing. It was all there.

Shocked courtroom attendees' jaws dropped open at Olasky's testimony and some mouthed "oh my God" to one another.

Then, at 1:11 p.m., the entire day shifted from calamity to anarchy. The prosecution's Hail Mary came written on beige stationary.

In the middle of Olasky’s testimony, Assistant District Attorney Christopher Bowman sprinted into the courtroom through the side doors, brandishing a sheaf of paperwork above his head.

"Your honor, an indictment has returned," Bowman panted.

Hayes was hit with four counts: aggravated criminal damage, aggravated assault with a firearm, attempted second-degree murder for shooting Smith’s wife and second-degree murder on Smith, a sentence that carries a term of life in prison without parole.

Fuller and Daniels urged Judge Cantrell to continue the pre-trial probe, stating that the state already got what they wanted. The defense wanted something else. They wanted their version of the truth to be understood by the public. They wanted New Orleans to know that Hayes wasn’t the villain being painted in the media and Smith wasn’t the angel the city held in high regard.

"This building is supposed to be about justice, judge," Fuller called out. Cantrell needed yet another break but Fuller pushed on. "This boy was arrested 19 days ago, this is the fastest indictment ever ... I wonder what (the state) is trying to hide. It’s subterfuge that the state of Louisiana did this."

Burton, seizing his moment, attacked like a shark smelling blood in the water.

"First of all, judge, Hayes is not a boy," Burton said. "An indictment has been returned ... that case is now in the hands of another section (of the court)."

With the indictment issued, the case moves to a different judge. What happened was obvious. The prosecution never cared to approach the hearing seriously, they just wanted to keep Hayes behind bars. A preliminary hearing -- where the prosecution would normally call witnesses -- was treated as a sideshow.

Fuller used it as an impromptu press conference. Burton waited out for his prayer to be answered. Both sides manipulated the judicial process, neither focusing on establishing or showing a lack of probable cause.

The defense’s momentum had collapsed in a matter of minutes. Fuller plopped down in his padded high chair, irate, re-positioning his suit jacket and wiping his mouth with that handkerchief.

At that moment Hayes sat emotionless, stunned even, at what had just occurred. The defendant, swung his body toward his supporters and his calm demeanor turned to distress.

"It’s crazy, man," he said.

The Magistrate court fell quiet. Cantrell escaped for his recess away from the madness. Supporters spilled into the auxiliary hallway where a scuffle broke out between two women. Sheriffs said it came out of frustration, the relationship both women had to Hayes was uncertain and they were booked on municipal battery charges.

Cantrell suspended the probable cause hearing and Hayes' bail was increased from $1 million to $1.75 million before releasing the furor upstairs to Criminal District Judge Camille Buras. The defense pled not-guilty to all charges.

This had never been a hearing. Neither side sought to establish probable cause and the actual proceedings were rendered moot because of the indictment. It was theater from the start and the curtain had finally, blessedly been lowered for the day.

Past 2 p.m., outside the court room, Hayes sat in disbelief. The 305-pound, 6'4 former football player slumped over, his beard pushed into his chest. It was all over. Hayes was going back to jail.