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New evidence could change the course of the Will Smith murder trial

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For three months defense attorneys in New Orleans have portrayed the shooting of former Saints defensive end Will Smith as an act of self defense by Cardell Hayes. New witness testimony and the 911 tapes from the incident presented by the prosecution changed the narrative.

The New Orleans criminal court on 2700 Tulane Avenue one day during the Will Smith murder case hearings.
Tyler R. Tynes/SB Nation

NEW ORLEANS -- For nearly 60 days since the shooting death of former Saints defensive end Will Smith, the defense had offered that the case against Cardell Hayes was laughable. Last Friday, the prosecution could do nothing but beam and bust jokes at a mahogany table on the right side of Courtroom 8.

Leading up to last week's pre-trial hearings, the defense had originally said there were six witnesses who would corroborate that Hayes acted in self-defense. They still haven't materialized. Details of the shooting and investigation spread citywide and began a public trial benefiting the defense.

The defense team of John Fuller and Jay Daniels previously brought in questionable witnesses (private investigator David Olasky -- who hasn't surfaced in months), dabbled in hearsay to benefit an audience of city-goers and destroyed media accounts of an angelic victim.

Outwardly, the prosecution appeared to be scrambling. During a preliminary hearing in April, the district attorneys stalled for almost five hours while waiting for a grand jury running simultaneously to provide an indictment. In May, the FBI made an inquiry into the defense's allegations of misconduct in the New Orleans Police Department's investigation.

It was Friday's pre-trial hearing and another to reduce the bond for Hayes where the prosecution changed the course the case had been on for the last two months.

The prosecution used a day of hearings to suppress statements made by Hayes to the police following his arrest -- identifications of key witnesses and evidence seized without a warrant -- to get a glimpse into how litigators would eventually handle the trial.

A bond reduction hearing for Hayes was reduced to a 45-minute argument and an appearance of what would become an unimportant witness.

The pre-trial hearing presented new evidence by three key witnesses, two of whom haven't been seen yet in this case. The first was rookie New Orleans Police officer Christopher McGaw, a medium-built white man with blond hair and glasses who acted as a bystander the night of the shooting.

McGaw finished the police academy in December 2015. On April 9, he was out on a date, blocks from an automobile crash in the Lower Garden District before Smith was shot. Originally, McGaw wasn't going to move from his position. He was on a date, out to get drinks with "a lovely young woman" as he put it.

That's when he heard what sounded like an auto accident and jawing by a few men. But if this was just another street scuffle, it wasn't worth his time.

"The initial part of the argument sounded like two people yelling accusations at each other," he said.

Then, McGaw testified, there was a shift in pitch and tone. A small disagreement transformed into a heated discussion. That's when he says he made a move.

"It steadily became more inarticulate and more desperate ... I thought to myself, this is not going to resolve itself and it's not going to be good," he said.

McGaw, unarmed, called 911. He jogged down Sophie Wright Place and says he saw a gun brandished. Startled, he ducked. McGaw hid behind a car and still pieced together the incident with an operator until a staccato of gunfire rang throughout the corridor. Pop. Pop. Pop. Pop. Pop. Then there was a pause. Then more shells.

After that testimony, Jason Napoli, an assistant district attorney, played the 911 tapes from the night. The audio, capturing everything leading up to the shots, allowed the gallery to listen to what Hayes rendered as Smith's final words before his dying moments.

"He's got a gun. I'm gonna go get my gun," Smith said as relayed by Hayes in the 911 call.

Prior to that, Hayes had issued a warning, building upon a narrative the defense has molded that he "feared for his life" before the shooting.

"I got out the car, the gun was in my hand," a man police identified as Hayes said over the 911 audio. Afterwards, McGaw came to Hayes' position and asked him what happened. Hayes, perhaps not knowing the gravity of what transpired said, "What was I supposed to do?"

And there it was in the open. Smith's final words. Hayes leaving his vehicle, gun in hand. And instantly, Fuller's account was unraveling. In the cross-examination, Fuller tried to emphasize that Smith was going for his gun, given the way Smith's body was positioned in his vehicle at the time of death.

McGaw, one of the first people with eyes of the incident, maintained to Fuller that Smith didn't have a chance to make it to his concealed weapon in the glovebox of his Mercedes-Benz G-Wagon.

"I checked his pulse and saw a grouping of shots on his back and upper left shoulder. I made no effort of examining his body beyond that," McGaw said. "At that point, I can't help him. He was already beginning to get cold."

* * *

As more information and evidence was presented about the night Smith was killed, how Hayes left his car with a revolver and more, the prosecution was barely finished.

Amanda Williams -- a 5'7 white police officer, the first responding officer who arrested Hayes -- also testified again in court. She corroborated that Hayes wasn't intoxicated and didn't use profanity the night he was arrested. He complied with all requests. It was the third witness from Napoli and his colleague, assistant district attorney Laura Rodrigue, that continued the onslaught.

Detective Tindell Murdock, a black man who has worked for the New Orleans Police Department for 16 years, approached the witness stand. Murdock had been in homicide for five years. His job currently is to assist the investigation.

At approximately 4:43 a.m. the morning of April 10, hours after Hayes shot Smith, Murdock was sitting across from the shooter in Interview Room 2 at police headquarters. Hayes was to give a statement and basic information about what happened, but insisted on having a lawyer after being Mirandized.

Murdock and others ceased their preliminary probing. However, Hayes, who can be seen on a taped recording, is distraught. He blurted out a statement to police. Hayes claimed Smith hit him three times while Hayes was holding a revolver. "Three to four" people surrounded him, too. Allegedly, Smith said to Hayes, "What you doing with that gun, boy?"

That's allegedly when Smith, having already attacked Hayes, went to retrieve his weapon. Hayes, recalling the incident to Murdock, wailed for the opposite. Racquel Smith, who was also shot that night, allegedly motioned for Smith to get away from the car, pleading with him not to get the weapon.

The fever pitch was seconds away.

"Please don't do this, bruh, please, please don't do this bruh," Hayes can be heard saying.

Forty seconds to a minute later, both Smiths were shot and one was dead. And Hayes sat in Interview Room 2, on camera, pouring out his soul, his head cemented to the table in front of him. Detectives checked on his condition. But it was too late. Hayes had cracked.

"I've never been interrogated like this, I've never shot nobody," Hayes said.

The prosecution didn't buy it. Napoli attacked. He suggested when Hayes gets out of a car with a firearm the situation immediately escalated. He was the first to produce a weapon. Smith didn't get that chance. He was dead before he got to the door of his vehicle.

"Is there any law that says Cardell Hayes gets to have a firearm but Will Smith doesn't get to have a firearm?" the prosecutor asked.

Hayes, on tape, couldn't comprehend the complexity of the situation that occurred just hours ago.

"How can I have my life taken away from me for nothing?" Hayes can be seen saying.

"That's the word he used to describe this situation right? 'Nothing?'" Napoli prodded at Murdock as he finished his testimony.

Murdock, ready to leave the stand, looked around the courtroom, scanned the tape once more, and gently nodded in agreement.

"That's correct," the detective said.

* * *

Cardell Hayes' defense lawyer John Fuller
Tyler R. Tynes

A hearing to suppress what the prosecution detailed for hours before Judge Camille Buras was denied. Buras also denied a motion to lower Hayes' current $1.75 million bail.

Realistically, the defense's chronicle, which could still lead to gaining a justifiable homicide not guilty verdict from a jury under Louisiana's Stand Your Ground law, has become more difficult to obtain. That was the clearest assessment in a week where this case sped light years ahead.

"The defense has stated from the beginning they feel very comfortable in that defense. I don’t think it was shut down," Donald "Chick" Foret, a criminal defense lawyer and legal analyst in the New Orleans metropolitan area, told SB Nation.

"The self-defense theory was not closed, but certainly there are facts that came out that may make it more difficult for them to sell to a jury," Foret said.

The air in the court room, after being denied everything, had been sucked out. Fuller stayed after the hearing for nearly an hour processing all that had transpired. He said he wasn't surprised by anything that he heard, the testimony, the denial for bond reduction or the prosecution showing their hand.

Fuller believes that self-defense is still an argument that can be made. He's never denied that his client acted on that night. In fact, he became incensed with the different ways reporters asked him about the shooting.

"You are playing semantics if you are asking me if I’m gonna say Cardell didn’t shoot the person. Hell no. I’ve never said he didn’t," Fuller said. "I may not have given you the golden language that you wanted, but I always consistently said he was not the aggressor and legally not guilty."

Hayes getting out of his car with a weapon doesn't change that. His justification wasn't breaking down.

"Not if you know why he exited with his gun," Fuller said when asked if that detail hurts his argument. "But you gotta wait for trial for that."

Napoli and Rodrigue were the victors on Friday. Fuller, a man known for his brash tone and suave appearance, turned quiet and sheepish by time the hearings concluded. Napoli took his victory lap.

"We have heard over and over that Fuller said his client is not guilty and after we see some evidence, it's become a '50-50 case,'" Napoli said, jabbing at Fuller's statements in bond reduction about how the case has shifted.

"This isn't a 50-50 case," he said. "This is a straightforward case ... We had a fender bender and ended up with a woman shot twice and Will Smith shot seven times in his back. There is no bigger threat to the community (than Cardell Hayes)."

This time, there weren't any lawyers sprinting to the courtroom with indictment documents. Litigators didn't yell thoughts about subterfuge or hearsay. The theatrics of the suit are long gone. Two months of grandstanding were shattered.

The courtroom, full of supporters, sprayed into the hallway at day's close, defeated. Hayes, who'd shook his russet face in defiance for majority of the prosecution's testimony, was hauled up and supervised back to his cell. This time, he's further from freedom than he had ever been.