Almost certainly: prosecutorial tactics!
Sometimes prosecutors, reach beyond a count for which
there is solid evidence to charge a more serious offense for which a conviction
at trial would be, at best, speculative. This conduct often succeeds in producing
a guilty plea to a lesser offense.
In the Rust movie shooting, we can be pretty sure that
the guilty plea to the petty misdemeanor of negligent handling of a firearm taken
by Assistant Director Dave Halls was the result of negotiations in which Halls
was told he would otherwise be charged with the felony of involuntary
manslaughter. This is the charge that will be made against Alec Baldwin.
Some facts
There is always a danger in commenting on a prosecution,
especially at this early stage, of getting some facts wrong. The media sometime
make mistakes. Here, Santa Fe County
District Attorney Mary Carmack-Altwies may well be aware of important
evidence that hasn’t become public.
With these caveats, let me survey a few facts as they so far appear. One thing that seems clear is that the
evidence against Halls on a manslaughter charge is considerably stronger than
that against Baldwin. Halls admits that he examined at least some of the rounds
in the pistol’s chamber. There are conflicting reports as to whether he did
this in concert with the film’s armorer Hannah Gutierrez-Reed or whether
whatever examination she undertook was separate. Baldwin made no such examination, neither
being required to do so by established protocol, nor requested to do so by armorer,
director, nor assistant director.
A blank and a live round are strikingly different in appearance. The blank has no projectile or bullet. Instead it is flat at its forward end, with the powder held in by wadding or the metal of the shell is crimped, opening to permit exit of the hot gasses upon firing. A dummy round is a very different matter. You usually have to look at the base of the round to distnguish the two. The dummy has either an obvious void or a less obvious dimple where the primer should be. That there was a non-blank round should never have gotten by Halls. That there was a live round, not a dummy, should certainly not have been missed by Gutierrez-Reed. That is a key part of her job, for which she should have been trained in detail.
Apparently the company had ordered no live rounds. It was the armorer's responsibiility to check that there were none on locaton.
Someone on the set called out “cold gun,” either Gutierrez-Reed or Halls when or before Halls handed Baldwin the pistol. On the technical vocabulary of movie armorers, surely known to Gutierrez-Reed, the pistol was “hot” even if only blanks were chambered -- in that it had a real barrel, not a solid prop-type barrel. Therefore, even the firing of a blank would propel potentially dangerous hot gasses and perhaps wadding from this pistol’s barrel.
Depending on the requirements of the script, the chamber of a pistol may be empty, contain blanks, or contain dummies that will not fire. A common film practice is to tell actors not to open the pistol or otherwise be involved with its mechanism unless and until instructed to do so. An actor may well not know how to open or close the chamber or how to evaluate its contents, especially to distinguish live rounds from dummies.
Prosecutorial practice: the plea deal with Halls
It is not necessarily improper for a prosecutor to bring a
felony charge against one suspect after agreeing to a minor misdemeanor plea
from another who could have been felony charged. It is standard procedure to
use plea agreements to get testimony against other suspects, working up the ladder, for example, from the street seller
to his boss, to that boss’s supplier, and then, with luck, to the wholesale
importer.
This is not, however, a drug or an organized crime case. Baldwin is not a higher up in any sort of
criminal conspiracy or enterprise. There is almost no way he could be more culpable
than Halls, but he is a lot more famous. The national news is little interested
in Halls or Gutierrez-Reed. Having decided that Baldwin should be prosecuted, the
prosecutor must have known that the success of the the whole Rust prosecution would universally
be judged by whether Baldwin is convicted. In that light, making a deal with
Halls to procure his testimony against Baldwin must have seemed attractive.
Halls’s testimony might displace the “cold gun” announcement from
the immediate transfer of the pistol to Baldwin, thereby, perhaps weakening the
confidence Baldwin should have placed in it.
It is also possible that Halls could say something relevant
to the issue whether Baldwin accidentally pulled the trigger or the pistol
went off as a result of his drawing it out of its holster. The cause of the
pistol’s firing is not going to be an easy issue for the prosecution because,
although they may have an expert prepared to say that the pistol could not have fired
without a trigger pull, the expert’s examination broke the pistol, precluding its
testing by a defense expert. Juries tend to be skeptical of one side’s expert when
the other side’s expert is precluded from making an appropriate examination.
The level of expertise of an expert who breaks a pistol might also be a topic
of jury discussion.
The prosecution’s goal
I am pretty sure that the prosecution will agree to let Baldwin
plead to negligent handling. In fact, I strongly suspect that the whole point
of the manslaughter charge is to procure the misdemeanor plea. Many prosecutors
would not be comfortable with the possibility of failure in the one and only
nationally publicized case of their careers. But even the prosecution for
negligent handling of a firearm might fail! Therein lies the attraction of
charging a felony and increasing for Baldwin the risk of a career ending incarceration.
The manslaughter charge is leverage.
Is this ethical? It is not enough to make it ethical that the
prosecutor be confident that the defendant will ultimately bargain and plead guilty
to a charge on which he is in fact guilty. Justice requires of a public
prosecutor more than “no harm no foul.” It is ethically impermissible to tender
to the court a charge intended and expected to be bargained away unless the
prosecutor both believes that the defendant is guilty of that charge and that
it can be proven beyond a reasonable doubt by admissible evidence.
It is conceivable, by dint of evidence of which I am unaware,
that the District Attorney meets
this standard. I doubt it, however, for reasons that I will next explain.
The statute
Manslaughter is the unlawful killing of a human being without
malice.
* * *
B. Involuntary manslaughter consists of manslaughter committed in
the commission of an unlawful act not amounting to felony, or in the commission
of a lawful act which might produce death in an unlawful manner or without due
caution and circumspection. NM Stat § 30-2-3
The prosecution
has announced that Baldwin will be charged with two counts and that these two
counts will be alternative. (What "alternative" should mean is that if one
count is met, the other cannot be. The jury will be instructed they may convict
on one, the other, or neither, but not both. Whether the prosecution may have a different definition in mind is unclear.)
Without due caution and circumspection
The natural
charge for the prosecution to consider in this case is “the commission of a
lawful act which might produce death . . . without due caution and circumspection.” Making a film is not an unlawful act. Using a
pistol in making a film, even a loaded pistol, is, at least on its face, in no
conflict with the criminal code of New Mexico.
New Mexico
courts interpret “without due caution and circumspection” not as a matter of
ordinary negligence, but as requiring “criminal negligence” which turns on “conduct
which is reckless, wanton, or willful.” State v. Yarborough, 905 P.2d 209 (Ct.
App., 1995). The chances of a jury finding that Baldwin’s conduct was reckless,
wanton, or willful seems to me nearly nil.
Commission of an unlawful act not amounting to felony
This is the other count with which Baldwin is charged.
There is a fifty-year-old New Mexico Court of Appeals
(intermediate court) case that concluded that the “unlawful act” of the
involuntary manslaughter statute could be violation of the “Negligent use of a
deadly weapon” statute” and that therefore, in a gun case, only ordinary
negligence, not criminal negligence, was required under this branch of the manslaughter
statute. State v. Grubbs, 512 P.2d 693 (Ct.App.1973).
Pursuant to Grubbs, then, if Baldwin was guilty of “endangering
the safety of another by handling or using a firearm or other deadly weapon in
a negligent manner” (NM Stat § 30-7-4(3)), he necessarily was also guilty of involuntary
manslaughter on its “unlawful act not amounting to a felony” branch. A misdemeanor
automatically transmutes into felony manslaughter. Ordinary negligence suffices
for what otherwise requires criminal negligence.
Surely it can’t be, however, that a prosecutor can charge the felony
of involuntary manslaughter on exactly the same facts as misdemeanor negligent
use! The New Mexico courts eventually straightened this all out. See Santillanes
v. State, , 849 P.2d 358 (1993), State
v. Yarborough, 669, 905 P.2d 209 (Ct.
App. 1995). Now there is no question that the unlawful act branch of the
involuntary manslaughter act cannot be used to elevate petty misdemeanor negligence
into felony manslaughter.
Our case law has long integrated the requirement of subjective knowledge into the showing of criminal negligence required by our involuntary manslaughter statute. See State v. Harris, . . .70 P.2d 757, 758 (1937) (defining criminal negligence required for involuntary manslaughter as "so reckless, wanton, and willful as to show an utter disregard for the safety of [others]") State v. Henley, 148 N.M. 359, 364 (N.M. 2010).
So, the unlawfulness act count against Baldwin would be no more likely to produce a conviction than would the "due caution and circumspection" count, which is to say very unlikely indeed.
Baldwin in his capacity as producer of the film
In response to the surprise announcement that Baldwin was going to be charged with two felony counts there was speculation that his role as a producer of the movie bore on the prosecution decision.
Turning to the facts, it is far from obvious that Baldwin’s status as a producer meant that he had management of firearms on the set. There is such a thing as division of labor, and some of Baldwin’s time was presumably taken up by his starring role in the film. In addition, he was one of two authors of the script, and would presumably be heavily involved in script interpretation and any script changes. Moreover, interaction with the armorer would more typically be a function of the director and assistant director. We know that Halls, the assistant director, and Gutierrez-Reed did, indeed, so interact in a material fashion.
So if recklessness of executive level firearm management were one a factor in charging Baldwin, it would be, at least from this distance, surprising that director Souza was not also charged. (The law is clear that his being injured by his own maleficence is no defense against criminal liability for that maleficence.)
Moreover, Baldwin was but one of six producers, and received only $100,000 for that function while some of his coproducers received $150,000. In the normal course of film production the power of Baldwin’s name to bring in financing and acting talent would justify well more than his hundred thousand. To conclude that as a producer he must have been responsible for firearm management or overseeing the amorer is lucicdous especially as there were three other producers on the set daily. They are apparently not going to be charged. Why not?
It now (2/6/23) appears that the prosection may seek to call Souza as a witness against Baldwin. Souza could possibly testify that Baldwin had more responsibilty for the handling of pistol rounds than would normally be expected or that he gave specific directions that short circuited safety precautions that would otherwise have been taken. Cross examination might well explore, however, whether Souza had something to gain (civil suits) in shifting his own responsibilites onto Baldwin.
In
short, it seems doubtful that his status as a producer will add much, if anything, to the claim of recklessness against Baldwin unless there is some very specific evidence that he undertook the job of firearm and ammunition management on set.
The firearm enhancement
This, together with its intemperate, huckstering language, for example calling defense counsel "fancy lawyers" raises further questions as to the professionalism as well as the competence of the prosecution. It is looking a lot like a political exercise rather than the administration of justice.
Conclusion
It seems
extraordinarily improbable that there will be evidence beyond a reasonable doubt
that Baldwin was reckless, wanton, or willful. He should not have been charged
with involuntary manslaughter.
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