NEW ORLEANS - New Orleans prosecutors say that they're ready to retry Cardell Hayes, the man who shot and killed former Saints star Will Smith, but his defense attorney said he will push to postpone the Oct. 18 trial date.
Assistant District Attorney Matthew Derbes said at a pre-trial hearing Tuesday that the state is ready to retry Hayes — and that he could once again face a murder charge.
Hayes was convicted at trial in 2016 of manslaughter and attempted manslaughter for shooting Smith and wounding his wife during a confrontation on a Lower Garden District street. However, his convictions were thrown out by the U.S. Supreme Court in January because they were returned by a non-unanimous jury. He’s been free on $225,000 bail since March.
Hayes, a tow-truck driver, shot Smith after the two men argued over a collision between their SUVs on the night of April 9, 2016. Hayes claimed he shot in self-defense, but Smith's wife Racquel said she thought the standoff had been defused when Hayes suddenly shot her husband in the back.
If Hayes' trial goes ahead as planned, it would be the first jury trial in Orleans Parish Criminal District Court since the COVID-19 pandemic began.
However, defense attorney John Fuller told the judge that he will move to push back the date so he can focus on incarcerated clients who’ve been waiting for their day in court.
The fallout from Hurricane Ida could also delay the trial. Criminal Court Judge Camille Buras said that the Oct. 18 date depends on how many prospective jurors respond to mailed notices to appear for jury selection. That could be complicated by post-Hurricane Ida troubles with mail delivery, she said.
“I don’t want to start a trial with only 50 jurors downstairs,” said Buras, referring to the location of the jury lounge. “I just don’t think that serves anyone’s purpose. That venire has to be large enough of a representative pool of this community.”
Buras set an Oct. 6 hearing to decide whether the trial will go forward as planned.
Along with the uncertainty over the trial date, it’s unclear what charges Hayes will face. He was charged with murder and attempted murder, but convicted of the lesser charges on a 10-2 vote at his first trial.
Defense attorneys say that for defendants like Hayes, the split vote should count as an acquittal on the murder charge, so he should only be eligible for a maximum charge of manslaughter at his retrial.
However, Derbes said the Orleans Parish District Attorney’s Office is waiting on the state Supreme Court to rule on a similar case in Iberia Parish before it decides how to proceed against Hayes.
A similar case involves Ronald Gasser, the motorist who shot and killed former NFL player Joe McKnight during an alleged road-rage dispute.
Prosecutors in Jefferson Parish argue that the split vote against Gasser at his initial trial rendered the verdict a legal nullity, so they can proceed with another murder trial without violating his protections against double jeopardy.
Separately, Buras referenced a video that another person posted to social media last week, which showed Hayes evacuated to a resident’s house in Slidell for Hurricane Ida.
Hayes informed the court’s pretrial services division that he would evacuate from the New Orleans East residence where he’s been on home confinement since posting bail. However, the video appeared to come perilously close to violating the judge’s ban on posting on social media about the case.
“The court cautions you, Mr. Hayes,” Buras said. “Sometimes we can’t control what other people do, but if that’s somebody you are with, that’s something they should certainly know is a prohibition.”