NEW ORLEANS (WGNO) — The defense in the Will Smith murder case filed for a preliminary examination Tuesday. That hearing will be held on April 28 at 10 a.m. in front of Judge Harry Cantrell, the elected magistrate for Orleans Parish. Over the last 24 hours, we’ve seen a lot of events come out confirming Cardell Hayes’ version of events, and it raises some questions. Here’s everything you need to know at this stage of the game.
One of the quirks of Louisiana law is that although Cardell Hayes has been arrested, he has not actually been charged with a crime. In most states when you’ve been arrested the District Attorney files charges against you that day or next morning. In Louisiana, there’s about a 60-day window for the DA to decide whether they want to file charges to investigate and determine what charges are appropriate for this case.
Even though Cardell Hayes was arrested for second-degree murder, the DA may ultimately decide that this is a crime of passion, in which the perpetrator commits the act against someone because of sudden strong impulse such as rage rather than as a premeditated crime. If found guilty he will be charged with manslaughter.
While this is going on, the defense team has no access to discovery. What’s going to happen is Cardell Hayes’ lawyer has one chance to prove self-defense, and that is to do a preliminary examination, and thoroughly examine the evidence. During the preliminary examination, the state has to put up one witness who is usually the lead investigator in the case, to say what they did regarding the investigation. They’re allowed to communicate hearsay, they’re allowed to speculate to a certain extent, the rules of evidence are very lax in a preliminary hearing, legal analyst, Craig Mordock explained to us.
Judge Cantrell has to make a decision whether they have probably cause to hold Cardell Hayes, keeping him in jail and with the bond. In the alternative, Hayes is charged with second-degree murder, which is punishable by life without parole. In cases where there is life without parole, there has to be an indictment.
In the next 2 weeks, the DA will put a large portion of the case in front of a grand jury; that means if a grand jury returns an indictment, then Hayes’ lawyer, John Fuller, would lose the right to a preliminary examination.
What this means
Mordock said it is much easier to win a case in which you’ve had a preliminary examination. If you don’t have one, then the first time the defense hears a large portion of the State’s case is at trial, and that leaves very little time to discredit a witness.
There are two types of grand juries: there’s an accusatory grand jury where it’s running all the time. For an example, there’s been an arrest and the police and the DA knows who did it, and then an indictment is issued.
The other is an investigatory grand jury, where the State wants to take more time. They may or may not know whether or not a crime has occurred, and they’re using a grand jury to issue subpoenas, get documents, and collect evidence to determine whether a crime has occurred and whether they can get an indictment.
Legal analyst, Craig Mordock shed some light on this situation. “On this case, based on the murky facts of the case I would say that this is going to be a hybrid type situation,” said Mordock. “If Will Smith had a gun a self-defense case gets a lot more believable.”
In this case, 911 calls, witness statements on how the two behaved are going to be very determination of whether a self-defense claim is viable.
“I do expect given the circumstances and the track record of Orleans Parish District Attorney’s Office, that there will be an indictment and if Cardell Hayes wants to raise his self-defense claims it’ll be at a trial in front of 12 citizens,” remarked Mordock.
Game changers:
Was there a second Gun? A fully loaded, 9-millimeter handgun was found in Will Smith’s car. The question is: did Will Smith intend to use it? Did Cardell Hayes believe he was threatened?
“We only know that one gun was recovered from the scene, what happened to that second gun? That is an absolute game changer in this case. If there is a second gun and we haven’t found out about it by now there are going to be a lot of questions that people will want answered,” said Mordock. “In terms of how the investigation took place, who was on the scene for NOPD, who had access to that crime scene? It could honestly be a New Orleans O.J type situation.”
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