Alec Baldwin charged with involuntary manslaughter for "Rust" shooting

[Barrister]

Also the specific sequence seen on TV is often not how it plays out. Usually people go into interview rooms because they are willing to have a conversation with police. Most defendants who plan to say nothing make their desire for a lawyer known immediately upon entering custody, the overly dramatic scene of the Detective sitting you down in an interview room and you proclaiming "LAWYER" is not often mechanically how it goes down. Non-custodial situations if the person doesn't plan to speak they don't even go to the police station, they just decline the invitation and make it known they won't talk to the police without an attorney present.

One of my favourite transcripts say the police go through the Accused's rights, the Accused say "my lawyer told me not to say anything", the cop saying "that's good advice"... then me realizing the transcript went on for another 20 pages...

[crazy canuck]

Also the specific sequence seen on TV is often not how it plays out. Usually people go into interview rooms because they are willing to have a conversation with police. Most defendants who plan to say nothing make their desire for a lawyer known immediately upon entering custody, the overly dramatic scene of the Detective sitting you down in an interview room and you proclaiming "LAWYER" is not often mechanically how it goes down. Non-custodial situations if the person doesn't plan to speak they don't even go to the police station, they just decline the invitation and make it known they won't talk to the police without an attorney present.

One of my favourite transcripts say the police go through the Accused's rights, the Accused say "my lawyer told me not to say anything", the cop saying "that's good advice"... then me realizing the transcript went on for another 20 pages...

 

[The Brain]

Some cops like the sound of their own voice.

[Josquius]

Also worth mentioning when you make phone calls in holding or jail, if it's a discussion with a lawyer it is privileged, anyone else is not, lots of guys have been caught up admitting to crimes on jail phones.

Never seen that one on TV 

[PDH]

Good thing so many here have done hard time.  When my ponzi scheme finally goes tits up I will know what to do when interrogated.

[Sheilbh]

One of my favourite transcripts say the police go through the Accused's rights, the Accused say "my lawyer told me not to say anything", the cop saying "that's good advice"... then me realizing the transcript went on for another 20 pages...

[OttoVonBismarck]

Good thing so many here have done hard time.  When my ponzi scheme finally goes tits up I will know what to do when interrogated.

I have been arrested but only for very minor things--it does help clarify the difference between "holding", "jail" and "prison" though.

[OttoVonBismarck]

Haven't been following it closely but read some updates today.

- District Atty. Mary Carmack-Altwies hired a woman named Andrea Reeb as the special prosecutor, with a salary of $156,000.

- Andrea Reeb, a Republican, was simultaneously running for office in the NM State Legislature--which she won, and was sworn in January 1st. Baldwin's team has filed a motion to have her removed from her special prosecutor role, as the New Mexico constitution (like most of the 50 states and the Federal constitution) do not allow someone to serve in multiple branches at once--in this case she would be in both the executive and legislative branches at the same time.

- Carmack-Altwies had previously requested $635,500 in additional funding for this prosecution, I believe the ordinary budget for entire office was only around $300,000 prior to this.

- Baldwin's legal team is undoubtedly far more expensive:

Lead Counsel is Luke Nikas - a partner at Quinn Emanuel & Sullivan, a prestigious New York based "white shoe" firm that regularly is in the top 5 of rankings on litigation teams

Alex Spiro - also a partner at Quinn Emmanuel, he has most famously represented Elon Musk in a number of matters, and advised him on his takeover of twitter

John Bash - Former U.S. Attorney (Trump appointee) in Texas, clerked for the U.S. Supreme Court (Scalia) and U.S. Court of Appeals for DC (Kavanaugh.) He spent five years as an Assistant in the Solicitor Generals office

[The Brain]

represented Elon Musk in a number of matters, and advised him on his takeover of twitter

It's the good advice that you just didn't take.

[OttoVonBismarck]

Probably the last data dump we'll see on the case anytime soon, but doing some reading today I am ready to conclude the Santa Fe District attorney may not be very good.

If anyone has interest in the case, there is a 40ish minute podcast by two former prosecutors (called, unorginally, "The Prosecutors") who analyze criminal cases in the news--they do a review of the Baldwin case and it's pretty interesting especially if you aren't a lawyer:

https://www.stitcher.com/show/the-prosecutors-legal-briefs/episode/33-alec-baldwin-and-involuntary-manslaughter-211253411

There's a few interesting things that came up in that podcast:

1. The DA actually announced that she planned to charge Baldwin in advance of charging him, which both said they have never personally seen in their careers.

2. They read the press release where that announcement was made, and note that it actually contains several "errors of fact" and "errors of law" concerning very basic criminal law. They both say the press release is weird and uncharacteristic of the sort of press releases they have really seen District Attorneys put out basically anywhere else. It is half justification, half "explainer", and several elements of the "explainer" part are not really well formed and contain some inaccuracies.

3. They note that there are two main charges, one which is basically Involuntary Manslaughter, and "Involuntary Manslaughter in the Condition of a Lawful Act", with a firearms enhancement. They go over both.

3a - The most serious charge is "Involuntary Manslaughter in the Condition of a Lawful Act" with the firearms enhancement--because with the firearms enhancement, it actually carries a statutory mandatory five year sentence, otherwise it carries the same sentencing range the other involuntary manslaughter charge (which is 'up to' 18 months.)

The phrasing of these laws can be a little confusing--under New Mexico law you commit manslaughter if you unintentionally kill someone while doing something that is illegal, but where the underlying crime is only a misdemeanor. You also commit manslaughter if you are doing something that is lawful, but in a manner where you basically have "reckless disregard" for safety and it results in a person dying. Without the firearms enhancement the two laws are very similar with similar punishments, but the firearms enhancement can be applied to the lawful act one, but cannot be applied to the regular involuntary manslaughter charge.

"The Prosecutors" point out a very obvious problem with this charge--the statute requires they prove Baldwin committed, essentially criminal negligence, which is a higher level of reckless disregard for safety than civil negligence. Looking at existing case law, the types of firearm behaviors that rise to this recklessness standard are really egregiously crazy bad behavior, and the likelihood of meeting this standard for Baldwin is close to zero. Without that, there is no real way to sustain this charge, and they think this charge has basically no chance of being met.

3b - The other involuntary manslaughter charge on the face of it, seems like it could be met. A simple reading of the Statute, and a 1970s New Mexico appellate court case, clarify that to meet the definition of "an unlawful act", simple negligence suffices. This means essentially civil negligence, so really if they can demonstrate Baldwin had negligence to the much lighter standard, and it lead to the death, he would be guilty of involuntary manslaughter. While still not an automatic slam dunk, they think there's at least a reasonable chance you could win that. Additionally, the press release mentions the phrase "created a culture of disregard for safety", that alludes to Baldwin's quasi-managerial role as a named producer (which we've already discussed but neither here nor there.) For simple civil negligence, that can hold water.

However, big red flag--they found another case in the 2000s from the New Mexico Supreme Court that basically overrules the 1970s case, and actually says that for negligence to sustain a conviction for a crime, it has to be to the standard of criminal negligence, which is essentially a "reckless disregard", and also has to be direct negligence by the person, or if indirect they had to be very closely involved. Simply saying "well he was the boss", would not be enough.

The Podcasters openly wonder if the prosecutor is unaware of this case, and they even say that while "misakes like this do happen", they want to assume a New Mexico prosecutor would be aware if she was relying on overturned law from the 1970s before charging on it. If not, this could be embarrassing. They also say they haven't done an extremely comprehensive study of the matter, but could not find any obvious later case that overruled the Supreme Court case from the 2000s.

Now there's some additional details that I think are important to bring it all together--that's all the things the podcasters covered.

It has come out today, that the "Firearms Enhancement" stipulation in the more serious charge, was written into New Mexico law in 2022--after Hutchins was killed. This means the prosecutors have actually charged Baldwin with a criminal act that was not on the books at the time the alleged crime occurred. That's essentially a constitutional no no in the United States. The fact that the prosecution did that, makes me wonder if they are in fact, incompetent enough to also be unaware the meat of their other involuntary manslaughter charge rests on a 1970s appellate court view of involuntary manslaughter law in New Mexico that hasn't been valid law for about 20 years because it was overturned.

Worse still, another crime podcaster is the one who broke this news--and reported it to the DA. They responded "we'll have to look into it and are researching the matter." That does...not sound promising, in terms of whether or not this prosecutor is very good at their job.

This all comes together to make me think this local District Attorney is not particularly competent, and may have "poor intentions." It was immediately noted when this all started, she is an elected Democrat. Many would assume that would mean she wouldn't abuse her office to "go after" a prominent political liberal. However, the woman she chose for Special Prosecutor was running for the State legislature at the time she was hired, as a Republican.

Looking into Reeb's background, she has 25 years working as a prosecutor, and I don't see any immediate signs from her very limited campaign literature that she's an outright crazy wing of the party member. She has a lot of boilerplate right wing positions on her campaign website, but most are presented in their "more reasonable" form. I also couldn't find any prominent cases of her saying or doing crazy things in social media or the local news. None of this is to say she isn't a crazy Trumper, but if she is, she isn't loud about it--and most of that sort who run for office are loud about it. It would seem she was probably hired because she is a competent and experience prosecutor. But it raises the question again, of the competence of the District Attorney to hire someone last year, whom she knew could win her campaign (and did), and not realize that it's a legal problem to have a Special Prosecutor who is also in the State legislature. Maybe I just overestimate the degree of familiarity a District Attorney has with the basics of their State constitution.

I don't know if Carmack-Altwies's intentions are political, but it doesn't seem like they are grounded in prudence as a prosecutor or a civil servant.

[Jacob]

Interesting. Thanks for the write up.

[grumbler]

Agree that that was a good write, so thanks, OvB, for that.

I am still waiting for someone to explain what they thought Baldwin should have done to avoid "being negligent."  The Prosecutors podcast mention some silly stuff in passing, like pointing the gun at the ground and pulling the trigger (not as something they recommend, just as something they herd), but that's obviously total bullshit as it is as likely to cycle the live gun into firing position as to fire the live round, and firing the gun indoors like that creates the situation where he is negligent because he risked causing a dangerous ricochet.

Should he have opened the gun and looked at the rounds to see if they were dummies?  That does no good because the dummies, by design, look like real rounds.

Should he have unloaded the gun and shaken each round to hear if there is a BB in it?  How is he going to hear a BB on a noisy set?  And then he could not replace the dummy rounds because the armorer must do that.

Baldwin simply was not qualified to determine whether the gun contained a live round, and the people who were qualified to do that assured him that the gun was not loaded with anything that could go off.

[OttoVonBismarck]

Yeah, I agree 100%. Something the podcast mentioned that I found helpful was when the male podcaster mentioned that typically for a criminal negligence claim where you have to show "reckless disregard", it also has to be in the context of the situation that person is in. He points out that the way NASCAR drivers drive, for example, would not only meet this standard if you did on the highway--but probably would meet standards of even more serious crimes. But on the speedway? There is no criminal negligence. It is an auto race, a constructed, controlled, artificial environment where the participants are all aware they are part of something with a different set of rules than the general public might be familiar with out and about.

That does not mean a NASCAR driver would be indemnified against any possible liability for any action--there are things they could do on the track that could result in criminal charges or civil liability, but it isn't going to be the same exact things as you'd see for an "ordinary" driver. This is again, because various road safety laws are not in effect on a NASCAR track, and there are probably additionally various State regulations on operating racecar tracks which apply, these are going to be different than "driving rules" me or you follow.

Likewise, so many pundits on this case are retreating into the world of law enforcement, military, or hobbyist gun training which focuses on the standard NRA-promulgated rules of gun safety. Some of those rules are very important for not only private hobbyist use, but basic gun safety training in the police and military. But those are also rules that assume primarily live ammunition and the use of a firearm for sporting or defense purposes.

This is a world that makes use of guns as props, never as real weapons. There is no self defense or sporting use of guns in Hollywood, they are part of a movie production. In that world, they use things like dummy bullets that look real for the camera, but are filled with BBs and are inert. In theory yes, you can shake them to know they're dummy rounds. But so much of the commentary is "Baldwin should have checked his gun." Checked it for what? Again, this isn't the gun range, if he checked the gun he would see loaded gun, loaded with bullets that to a non-expert eye look exactly like live ammunition, that check has no meaningful purpose. This isn't checking a gun at the range to make sure it's empty before you mess with it. I also think they conflate different situations in Hollywood. This was a framing shot where he was not intended to fire the prop, he was intended to be filmed holding the loaded gun. The expectation, and this is what the experts on set told him, is the gun was loaded with inert dummy rounds. If he was doing a scene where he was firing a blank (a round with powder, but paper/wax wadding in stead of a bullet), checking the gun makes more sense--blanks can became fatal if there are obstructions in the barrel, so in theory it can be useful to check the gun before firing a blank. This wasn't that. Checking the gun in this situation, adds no meaningful safety and would not have prevented the tragedy. Baldwin would have seen six realistic looking bullets. As a non-arms expert he would have no way of recognizing that one of them was real and the other 5 were dummy rounds.

[Barrister]

I remember running a dangerous driving causing death trial in Carmacks, Yukon.  Flat, level piece of road, vehicle goes into the ditch, rear passenger is killed.

I rely on a BC Court of Appeal case with nearly identical facts.  In that case it was a flat, level piece of road where the vehicle crosses the centre line.  Accused convicted of dangerous causing death.

Anyways at trial my judge refuses to convict, refuses to follow the BCCA decision.  We appeal.

Six months later the Supreme Court overturns the BC Court of Appeal decision.  Says that you need a marked departure from the norm in order to make out the charge of dangerous causing death.

Typically, in order to make out the marked departure, you either need a series of negligent acts, or a single act that is so grotesquely beyond the pale that it can not be called a mere mistake.

(the case was R v Beatty [2008] 1 S.C.R. 49 if curious)

[OttoVonBismarck]

The prosecution has dropped the firearms enhancement (which was, again, almost certainly an unconstitutional ex post facto charge), and made a snide remark while doing it:

In a statement, Heather Brewer, a spokeswoman for the district attorney, said the prosecution had dropped the firearm enhancement to "avoid further litigious distractions by Mr. Baldwin and his attorneys."

"The prosecution's priority is securing justice, not securing billable hours for big-city attorneys," Ms. Brewer said on Monday.

Note this enhancement is what carried a potential 5 year mandatory sentence, the remaining charges would be most likely 18 months (or fewer) if they obtained a conviction, major defeat for the prosecution.