NEW ORLEANS – Richard Hernandez says he is 5-foot-8, although that’s probably stretching it. The 28-year-old boat operator doesn’t look like much of a fighter but in Orleans Criminal District Court here Wednesday he was described as “very aggressive,” “wild” and “ridiculous” – all while being openly mocked by prosecution and defense alike.
He barely knew Will Smith, the ex-New Orleans Saint who was gunned down after a traffic accident, turned argument, turned senseless killing last April. Their daughters played youth basketball together and their wives were friends. Hernandez’s work takes him on month-long trips, so he’s rarely around.
Yet he’s emerging as one of the centerpieces in the defense of Cardell Hayes, who is facing second-degree murder charges in the killing of Smith, plus additional charges for the shooting of Smith’s wife, Racquel. Hayes is claiming self-defense, that he was threatened and felt unsafe, and thus acted appropriately in a chaotic and escalating incident.
Listen to defense attorney John Fuller and the one spreading chaos and escalating fears was Hernandez, who was riding shotgun in Smith’s Mercedes SUV that night when Hayes slammed into Smith and all hell broke out.
Hernandez charged out of the car, and soon took his shirt off because he said he was ready to fight Hayes’ companion, Kevin O’Neal. Later, a witness described him charging up to Hayes not long before Hayes opened fire. Another witness said he saw Hernandez throw a punch. And then after the shooting, with Racquel wounded in the legs, Will killed via seven bullets in the back, Hernandez curiously fled in a taxi, leaving his wife and everyone else behind.
“Your husband ran and left you with an armed gunman?” Fuller asked Hernandez’s wife, Rebecca Dooley.
There was no answer for that or much of Hernandez’s behavior, which the defense seized on. It may still be a tough sell that one guy running around shirtless and sort of trying to get into a fight is enough reason for Hayes, who stands 6-foot-6 and weighs over 300 pounds, to grow so fearful he gunned down two other people.
In a trial, though, you take what you are given, and Hernandez is such a gift to the defense even the prosecution blasted his foolishness.
Making matters more demeaning was that throughout the day, as a parade of eyewitnesses, some tied directly to the Smiths, some just New Orleans residents who were present for the incident, referred to Hernandez as “the white guy without a shirt on” or “the little white guy.”
Hernandez claimed he left the scene in that taxi because “I was scared” and he feared for his life.
“You weren’t fearing for your life when you took your shirt off,” Fuller said loudly when cross-examining Hernandez. “Tell me what it was that made you take your [expletive] shirt off?” Fuller continued, letting a profanity slip out in either exasperation or on purpose and for effect. Judge Camille Buras said nothing as the courtroom gasped and giggled.
“I believed that there was a fight about to happen,” Hernandez said.
No fight actually occurred, no physical contact between any of the men. No one could figure out why in a conflict of three giants, a far smaller one was apparently looking to escalate what was a loud verbal argument to at least a fistfight. While Hernandez never directly squared up with that massive Hayes, he did with O’Neal who is thinner, but tall and only slightly less sizeable. What was removing his black polo going to do to help?
“For one thing,” witness Stephen Cacioppo testified about what he saw out the side window of his house as everyone was arguing, “I thought the white guy was gonna get …”
Cacioppo, who is white, didn’t get to finish because the courtroom here broke into laughter. The implication was obvious.
“He wasn’t going to make it,” Cacioppo said later. “I couldn’t see him winning the fight.”
No one could, even the prosecution. Assistant district attorney Laura Rodrigue attempted to minimize the role of Hernandez and downplayed his ability to scare anyone by noting that his petite wife, decked out in a black dress, was able to pull him from this supposed near-fight. She then mocked him by acting out a guy running to and then away from conflict. There were more laughs.
The state needs to make Hernandez such a joke that the jury doesn’t see him as a legitimate threat. It was Hayes, after all, who did the shooting.
“When you take your shirt off, does that mean, ‘Let’s take out our guns and kill one another?’ ” prosecutor Jason Napoli asked Hernandez, reminding the jury of the obvious.
“Does it mean you shoot an unarmed man in the back seven times?”
“Who was the only person to pull out a fully loaded .45-caliber handgun?”
The defense’s position, however, is that Hayes felt threatened and was being swarmed by not just the Will Smith, the former NFL defensive lineman, but an erratic, taunting Hernandez. It’s easy to dismiss him now, they say, but in the moment, who knows what someone acting crazy might do?
Hernandez did himself no favors on the witness stand.
On Tuesday, Racquel Smith testified she had to step in front of Will Smith and calm him down while he argued with Hayes. On Wednesday, former Saint Pierre Thomas said he was about to try to stop the would-be fight between Hernandez and O’Neal after he witnessed Hernandez throw a punch that missed. Meanwhile, Hernandez’s wife said she had to pull her husband away from the would-be fight and get him to settle down.
Hernandez, however, defiantly claimed he and Smith were calm throughout.
“So, why did your wives have to try to calm down the shirtless Mr. Hernandez and Mr. Smith if y’all were already calm?” Fuller, the defense attorney asked.
“Who is telling the truth, you or your wife?” Fuller said at a different point.
Later, Fuller went for the throat and asked Thomas, “Did you ever consider that if not for the actions of Richard Hernandez, Racquel Smith might have her husband and Mrs. Hayes might have her son?” The prosecution immediately shouted an objection. Judge Buras agreed, striking it from the record.
The jury still heard it, though.
This is a complicated case. It is likely to hinge on whether the jury believes Hayes was justified in escalating the incident with a firearm when no one else was presently armed. He needs to reach the standards of Louisiana’s stand your ground law. At some point, it seems, the defense needs to show that Will Smith was not just headed back to his car to get his own gun, but had threatened to use it on Hayes.
That said, on a day when the prosecution covered a great deal of ground, the last thing they needed were the biggest moments coming from the least of their witnesses.
The last thing the state needed were the sequestered jurors dozing off to sleep contemplating the actions of Richard Hernandez rather than those of Cardell Hayes.