The Santa Fe District Attorney and the special prosecutor chose not to submit papers in opposition to the defense motion to dismiss their firearm enhancement claim with its five year mandatory sentence. The enhancement was obviously and fatally erroneous. The enhancement for a “discharged” a firearm was enacted after the incident and so its enforcement would be ex post facto. The firearm enhancement that was in place at the time is for “brandishing” the firearm, which requires an intent to intimidate or injure. Clearly neither Baldwin nor the armorer, Hannah Gutierrez-Reed, who is charged with the same offenses as Baldwin and for whom the enhancement was also dropped, had any such intent.
The prosecution conceded on the enhancement issue because it should be career ending to submit papers to a judge, any judge, for an exception to the constitutional ex post facto prohibition. Little better would be to argue that the armorer, not present when the pistol went off, was brandishing it or that Baldwin intended to intimidate or injure anyone. (If they thought Baldwin intended to injure or intimidate, then the base charges would have been more serious than involuntary manslaughter.)
Yet, the prosecution’s press release went as far as it possibly could, or a little farther, to suggest that the blame for its withdrawal of the enhancement claim lay with the defense:
In
order to avoid further litigious distractions by Mr. Baldwin and his attorneys,
the District Attorney and the special prosecutor have removed the firearm
enhancement to the involuntary manslaughter charges in the death of Halyna Hutchins
on the 'Rust' film set, . . .
The
prosecution's priority is securing justice, not securing billable hours for
big-city attorneys.
I doubt very much that the prosecution
wants to try this case. Still, perhaps
it wants to pre-condition any potential jurors not to expect too much of them
in comparison to the litigious, fancy, high billing, big-city attorneys.
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