As the lawyers for Will Smith’s family and Cardell Hayes, who shot and killed Will Smith on April 9, engage in dueling press conferences aimed at selling sharply conflicting narratives to the potential jury pool, it’s now clear why the lawyers are saying the things they’ve said.
Louisiana has a “stand your ground” law. Passed a year after Florida became in 2005 the first state to remove the duty of retreat before using deadly force when faced with deadly force, the comments from John Fuller, who represents Hayes, have been directed at showing that Hayes committed a “justifiable homicide” within the confines of the Louisiana law. And the comments from Peter Thomson, who represents Will Smith’s family, have been directed at showing that Hayes did not have justification.
Under Louisiana law, “A homicide is justifiable . . . [w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” And here’s the key, as it relates to the decision of Cardell Hayes to shoot Will Smith: “A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.”
That’s why Fuller claims that a witness saw Will Smith with a gun. It’s also why Thomson has insisted that Smith’s gun never left his vehicle.
Ultimately, the question of whether Hayes was justified in the use of deadly force turns on who the aggressor was. Here’s the relevant Louisiana law: “A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.”
That’s precisely why Fuller ended his Sunday press conference with this line: “I can tell you that my client was not the aggressor in terms of the behavior that happened after the accident.” It’s also why Thomson suggested that the dispute over Hayes ramming his Hummer into the back of Smith’s Mercedes SUV had become resolved before Hayes fired his first shot. This wrinkle apparently is aimed at proving that even if Smith was the aggressor, he withdrew from the conflict before Hayes decided to start shooting.
Speaking of proof, the prosecution likely will have an obligation to disprove the “stand your ground” defense beyond a reasonable doubt, making it even harder to obtain a murder conviction — especially if the contents of a cell phone video from before the shooting in any way undermine the notion that Hayes was the clear aggressor.
Regardless of how it plays out, it should now be clear that Hayes has a very viable defense, even though he reportedly shot Smith seven times in the back. It could be so viable that Hayes is ultimately not even indicted. In 2012, for example, a Louisiana grand jury decided that 21-year-old Byron Thomas should not be prosecuted for killing 15-year-old Jamonta Miles, a passenger in a vehicle that was driving away from Thomas.