The discovery of a loaded gun in NFL star Will Smith’s SUV changes everything. The legal dynamic of the case now turns from a “road rage” murder to, potentially, a “stand-your-ground” self-defense resulting in a “not guilty” verdict.
Initially, it looked like the New Orleans Saints football player was gunned down in a fit of anger by another motorist, Cordell Hayes, following a traffic accident. But first impressions are often misleading or erroneous. The defendant, who is charged with second-degree murder, will likely argue that Smith threatened to grab his gun from the backseat and kill him. Is a verbal threat enough under the law? It could be, depending on the other surrounding circumstances. If, for example, the defendant saw Smith’s gun, and Smith said, “I have a gun” while making an overt act to grab the weapon, then the accused could be justified in shooting first in self-defense.
The “stand-your-ground” law in Louisiana helps the defendant immeasurably. It means Hayes did not have a legal duty to retreat. He was under no obligation to run away or otherwise avoid a deadly confrontation. Under the law, Hayes is allowed to stand there and defend himself. Moreover, you don’t have to wait to be shot first, before you pull your own gun and fire.
The critical question is this: was the defendant reasonably in fear of imminent serious bodily injury or death? Surely, he will say yes. And it is a subjective standard of reasonableness in a court of law. The jurors will be asked to put themselves in the shoes of the accused at the moment he made his decision to fire his weapon. If they think he made the right decision, then he would be acquitted of the murder charge.
The most important evidence may prove to be one of the surveillance videotapes. It could either undermine or support the defendant’s argument of self-defense. One tape shows an unnamed witness say he heard this: “Get out of here or I have a gun. And he goes, ‘F--- y’all, I got one too.’ And he grabs the gun and then he shoots him in the back. He’s dead.” Upon close examination, it sounds like Smith is the one who initiates a threat with the words, “Get out of here or I have a gun.” If so, that certainly helps the defendant. It corroborates his claim that he was threatened by Smith. But it could cut both ways. It also sounds like Hayes may have acted precipitously and with vengeance. Not good if you are claiming self-defense.
Smith was shot in the right torso and the back, according to the police report. It never looks good when you shoot someone in the back, for obvious reasons. However, it could help Hayes if he claims Smith turned and reached over to the back seat of his SUV to retrieve his gun.
Expect the defense to hire a forensic expert who will, in front of the jury, use a mannequin and dowels to show the trajectory of the bullets as consistent with Smith turning his back to reach for a weapon.
The prosecution will probably counter that testimony with their own expert who will spin a different story –that Smith was turning away from the shooter in a defensive posture to avoid being hit. At this point, it becomes a battle of the experts. Often, they neutralize one another.
Another surveillance video depicts the car crash that preceded the deadly confrontation. It shows Smith’s SUV rear-ending the Hummer being driven by Hayes. Smith then pulls around and drives off, fleeing the scene which is against the law. Armed with this tape, the defense attorney will claim that his client is the real victim here –the victim of a “hit and run”. But once again, the prosecutor will present a counter argument –that those preceding events angered Hayes, prompted him to give chase and then shoot Smith in violent retaliation. In other words, a fatal act of “road rage”. This argument is bolstered by the coroner’s report that said Smith was shot a total of 8 times, 7 of which were in the back. Is this evidence of intense anger or fearful self-defense? The former seems more likely, and it may be the biggest legal obstacle for the defense.
There were other people in Smith’s vehicle who were eyewitnesses to the confrontation. While their observations may help answer the question of whether this was murder or self-defense, their credibility will be attacked vigorously by the defense. Those witnesses include Smith’s wife, Racquel, who was also shot but survived. If they testify that Smith never threatened Hayes (as one might expect them to say), they will be challenged on cross-examination as biased in favor of the deceased.
Thus, the more reliable witness could be the unnamed person who saw and heard the deadly encounter and any other uninvolved witnesses. Jurors tend to give more credence to third parties who have no connection to either the shooter or the alleged victim. On the other hand, the unnamed individual may turn out to be a nefarious character and a lousy witness. At this point, we simply don’t know.
The existence of a loaded gun in Smith’s vehicle transforms this shooting into a “road rage” murder versus a “stand-your-ground” case of self-defense. It is reminiscent of the Trayvon Martin trial in Florida. It, too, seemed in the beginning like an easy case for the prosecution to prove. But in the end, the jury believed that George Zimmerman genuinely felt in fear of imminent serious bodily injury or death. Florida law permitted him to stand-his ground, and the shooting was determined to be justifiable self-defense. On the charge of second-degree murder, the verdict was “not guilty”. You may see the same outcome in the tragic death of Will Smith.
Gregg Jarrett is a Fox News Anchor and former defense attorney.