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Cardell Hayes’ retrial for killing of Saints’ Will Smith postponed to April

Cardell Hayes' second trial for the killing of former Saints star Will Smith was postponed to...
Cardell Hayes' second trial for the killing of former Saints star Will Smith was postponed to April 4, a judge ruled Wednesday (Oct. 6).(Orleans Parish Sheriff's Office)
Published: Oct. 6, 2021 at 12:13 PM CDT
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NEW ORLEANS (WVUE) - Cardell Hayes’ second trial for the killing of former Saints star Will Smith was postponed to next spring, and an Orleans Parish prosecutor said Wednesday (Oct. 6) that the state intends to seek a change of venue over concerns of pretrial publicity for the case.

Criminal District Court Judge Camille Buras scheduled Hayes’ retrial to start April 4, after defense attorney John Fuller and prosecutor Matthew Derbes asked for a joint continuance to a date at least six months out because of what they described as heavy caseloads until the spring.

Hayes’ trial had been scheduled to begin Oct. 18, when it would have been the first major jury trial in Orleans Parish since court operations were largely shut down in March 2020 by the coronavirus pandemic.

More unusual was the mention by Derbes that a change of venue would be requested in the next couple of weeks by District Attorney Jason Williams’ office. Concerns that pretrial publicity could affect a jury’s perception of a case or defendant usually are raised by defense counsel, if at all.

Derbes told Buras there were “too many question marks” regarding the makeup of what would have been the first major jury pool selected from Orleans Parish in more than 18 months, citing disruption to mail service and lives in the wake of Hurricane Ida.

“The last thing anyone wants is to try this case a third time,” Derbes said.

How Buras would rule on such a request, if filed with her court, remains to be seen.

The judge halted Wednesday’s hearing to retrieve jury panel data from Hayes’ first trial in 2016. She pointed out to the attorneys that an acceptable jury had been seated then having called 76 of 89 available pooled jurors, and with only 57 of them being questioned in voir dire before the group and its alternates were empaneled. That jury was only sequestered once the weeklong trial began.

Buras said the court’s deputy judicial administrator already told her that a pool of 112 potential jurors would have been available over the dates of Oct. 18-19.

Legal requirements must be met for a change of venue to be granted. Attorneys must demonstrate that in attempting to seat a jury, the pool was so tainted by bias that a fair trial would be impossible. Hayes’ first trial already demonstrated that was not the case in Orleans Parish, even when pretrial publicity was heightened five years ago.

According to the Louisiana Code of Criminal Procedure, “A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

“In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

The District Attorney’s office did not immediately respond to questions from Fox 8.

Hayes, 34, originally was charged with second-degree murder and attempted murder, but was convicted on lesser charges of manslaughter and attempted manslaughter in December 2016. At his first trial, Hayes admitted shooting the former Saints defensive end and Smith’s wife Racquel during a heated traffic dispute eight months earlier in the Lower Garden District. The ex-NFL star died April 9 after being shot seven times in the back and once in the side.

Hayes, a tow-truck driver from New Orleans East, contended that the homicide was justifiable. Hayes testified that Smith, 34, shot at him first, but no other witness or forensic evidence was produced to support that claim.

A split jury ultimately found Hayes guilty of the lesser offenses manslaughter and attempted manslaughter by votes of 10-2, at a time when Louisiana law required only 10 jurors to agree on a verdict in major felony cases. In April 2017, Buras sentenced Hayes to serve 25 years in state prison.

A subsequent U.S. Supreme Court decision allowed for the verdicts against Hayes to be vacated for not being unanimous. Williams’ office announced last month that Hayes would be tried a second time, with Derbes assigned to the case.

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