Rust and Related Lawsuits

[andersweinstein]

Very interested in how this will come out. The requirement of subjective knowledge of risk is well supported by case law -- instructions are just quoting from the decisions -- so one would think it should be unobjectionable to include more explicit verbiage on that, but it does require adding to the Uniform Jury Instructions for the charge.

Which happens all the time. In fact, it would be rare for that not to happen.

Well in the Gutierrez trial before same judge, they used UJI wording on these elements. The jury instruction negotiations were not televised so I have no idea if the defense had suggeseted anything different on the "willful disregard" point. I know the defense attorney Bowles said in a post-verdict interview:

We felt like this case, the way the jury instructions were worded, became more of a civil negligence case. I think I understand what the jury did given that standard," Bowles said. "But I think we're going to go back and appeal and cite case law that it has to be a higher burden in a criminal case. I think that's the whole issue. I think that dictates the result," Bowles said. "I think the bar was lower than it should have been based on the jury instructions. "

https://www.koat.com/article/rust-attor ... l/60132960

[andersweinstein]

One detail from defense opening I found interesting: Spiro said it would not matter to the crime if Baldwin pulled the trigger. According to Spiro that would make his public statements false, but "on a movie set you're allowed to pull the trigger". First, that indicates backing away from the claim that he never pulled the trigger. And though they are trying to pre-empt argument on this point I would think it can hardly be helpful to raise doubts about the credibility of Baldwin's public statements.

Second, that's a pretty bold claim. I suppose it is precisely what is at issue in this case, whether the normal rules of safe firearm handling apply to an actor on a set with other people in charge of safety. Prosecution's view is that there is no special exemption in the law for actors on a movie set, so Baldwin was reckless as anyone anywhere else would normally be taken to be if they knowingly pointed a real gun at someone and pulled trigger without personally verifying the gun was unloaded.

Also, SAG guidelines include standard firearm safety rules "TREAT ALL FIREARMS AS IF THEY ARE LOADED", "Refrain from pointing a firearm at anyone", "NEVER place your finger on the trigger until you're ready to shoot."I believe these rules are oriented towards firearms containing blanks -- that's in the title, and they remind people blanks can kill, and say right at the top "LIVE AMMUNITION" IS NEVER TO BE USED NOR BROUGHT ONTO ANY STUDIO LOT OR STAGE." Of course it's true that sometimes actors pull the trigger when filming scenes in which blanks are fired. But as written they don't seem to back up Spiro's bold claim in a blocking rehearsal that did not call for firing the gun.

[Rolodex]

For the life of me, between AI/CGI and props fabricators, I can't figure out why on earth there would ever be a "real" gun on a movie set.

[bob]

For the life of me, between AI/CGI and props fabricators, I can't figure out why on earth there would ever be a "real" gun on a movie set.

The standard line is: 1. money*; and 2. for certain firearms (like the old-time revolver in this case), there's no way to replicate them (and be authentic).

* The budget of "Rust" was estimated to be around $7M. Given how many corners the production already was cutting, I think it would be fair to say it wasn't washed in money.

[realist]

Well in the Gutierrez trial before same judge, they used UJI wording on these elements. The jury instruction negotiations were not televised so I have no idea if the defense had suggeseted anything different on the "willful disregard" point. I know the defense attorney Bowles said in a post-verdict interview:

In addition to arguing over which standard UJI instructions shoule be given, including changing the wording of some of the UJIs, it would be exceedingly rare for them (either side) not to suggest other instructions based on the evidence presented. They could be standard UJIs that the judge had not included or modified UJIs or new proposed instructions. That's all I'm saying.

[Rolodex]

For the life of me, between AI/CGI and props fabricators, I can't figure out why on earth there would ever be a "real" gun on a movie set.

The standard line is: 1. money*; and 2. for certain firearms (like the old-time revolver in this case), there's no way to replicate them (and be authentic).

* The budget of "Rust" was estimated to be around $7M. Given how many corners the production already was cutting, I think it would be fair to say it wasn't washed in money.

It's not that expensive to fabricate a prop. And barring that, you can modify a gun so that it can't shoot any kind of projectile at all. Put in smoke in post-production.
Source: married to someone who fabricates props

[bob]

It's not that expensive to fabricate a prop. And barring that, you can modify a gun so that it can't shoot any kind of projectile at all. Put in smoke in post-production.
Source: married to someone who fabricates props

Again, these are the standard excuses trotted out. Especially with old-time revolvers.

[RVInit]

Movie set budgets are determined by a script supervisor going over the script with the director, taking into account whether they want CGI, or other expensive effects. They don’t set a budget just out of “I want to save money” . It’s what is required to turn a script into a movie, plus insurance, meal obligations and other expenses. There was enough budget required to make the movie the director wanted to make. And profits aren’t determined by how much of the budget they save. Thus “low budget” talk is a talking point.

[andersweinstein]

Yow. Dismissal with prejudice for Brady violation. Special Prosecutor Morissey wound up putting herself on the stand to try to explain, to no avail. Co-prosecutor Erlinda Johnson resigned from case before hearing, per Morrissey, over decision to have hearing in public. Defense motion here: https://nmcourts.gov/wp-content/uploads ... 1-752p.pdf

ETA NYT report (gift link)

[bob]

Although the armorer has been convicted, there presumably will be post-conviction litigation about this in her case.

[Maybenaut]

Wow. Stupid.

It’s easy to accidentally fail to turn over Brady material, particularly where it’s relevance might not be readily apparent to a tunnel-visioned prosecutor.. But intentionally concealing physical evidence favorable to the defense? What a self-own.

[p0rtia]

Well thank the saints above.

[RVInit]

I just watched that hearing. Yes, yes, yes, yes, yes. That fucking prosecutor should be sanctioned. She's not just annoying and hard to stomach, but she is as corrupt as corrupt can be.

[andersweinstein]

Judge Mary Marlowe Sommer delivering ruling:

[RTH10260]

I had to search for info on those rounds that were deposited at the sheriffs office.

This article seems to give acomprehensive picture of the events:

How Alec Baldwin’s Trial Went Off the Rails

UPDATED 6:40 P.M.
By Victoria Bekiempis, who writes about courts and crime for Vulture and other outlets

https://www.vulture.com/article/alec-ba ... dence.html

[chancery]

I've read the expedited motion, but I'm still confused about who Seth Kenney and Teske are and how they relate to Rust and to the principal participants.

But (and putting aside the possibility that the prosecutor needs to consider a new career) ...

In what world does someone who knows something about firearms and movie-making think that it would be fine to deliver some ammunition -- including _live_ ammunition -- directly to a production set?

And in what world does a retired police officer and justice of the peace think it's fine to hold on to bullets relevant to a homicide prosecution in which death was caused by shooting until after the first and principal defendant's trial was concluded?

[andersweinstein]

I've read the expedited motion, but I'm still confused about who Seth Kenney and Teske are and how they relate to Rust and to the principal participants.

But (and putting aside the possibility that the prosecutor needs to consider a new career) ...

In what world does someone who knows something about firearms and movie-making think that it would be fine to deliver some ammunition -- including _live_ ammunition -- directly to a production set?

And in what world does a retired police officer and justice of the peace think it's fine to hold on to bullets relevant to a homicide prosecution in which death was caused by shooting until after the first and principal defendant's trial was concluded?

According to Special Prosecutor Morissey's remarkable turn on the stand, the ammunition in question "never left Arizona". Its purported relevance is that it matched the live rounds found on set and was from the "same batch" in some sense as ammo that wound up with Kenney, the supplier to the set, so could implicate Kenney, rather than Gutierrez, as the source of the live rounds.

Teske was on the defense witness list in the Gutierrez trial so came to NM with the ammo for that. Jason Bowles, defense counsel in that trial, met with him and decided not to call him -- according to Morissey because it would in fact be inculpatory because it did not match the live rounds found on set. It was when that trial concluded that Teske brought the ammo to the police because he did not want to hold onto it any longer. On an officer's bodycam video he tells them it is not from the set of Rust, though I believe the written report mistakenly said it was.

The police wound up taking it into evidence under a different case number than the Rust case. In the motion hearing Judge Sommer herself wound up pressing lead detective Hancock on how that decision was made and Hancock said it was the result of a group discussion. It was a pretty dramatic moment when Sommer asked if Ms. Morissey was part of that discussion, Hancock said "yes", and Morissey leapt up to volunteer to testify under oath about it. One detail I recall that seems to have escaped much notice is that Morissey testified she did not know it was filed under a different case number, but Hancock's testimony had implied she was part of that decision.

While that sounds suspicious as hell, I can believe Morissey had a sincere belief this ammo was not relevant to the Rust case. She maintained that in a brief statement outside the courthouse. This is not to say it shouldn't have been turned over. BTW Morissey herself is a defense attorney hired as special prosecutor for the Rust cases, her only prosecutorial experience.

[andersweinstein]

Interview with co-prosecutor who resigned. She flatly contradicts Morissey's account (under oath!) of her reason for resigning, says she only learned of this evidence issue during the day, advocated for prosecutors to recommend dismissal and withdrew for ethical reasons once she lost that argument. I suppose she is rushing to distance herself from the Morissey-led train wreck, but certainly expresses an admirable view of prosecutorial ethics, and there's no question she did resign.

[andersweinstein]

If you're interested, here is a counterargument from "Law of Self-Defense" attorney Andrew Branca. Politically, Branca is very much a right-winger who would delight in seeing Baldwin go down. However in my layman's opinion he is clearly no idiot, rather smart and articulate and usually legally precise, so an interesting source of legal commentary if you allow for his biases. Since almost day one he has been pushing the idea that this is nearly an open-and-shut case on the legal merits on the theory that any normal adult in any context who points a gun and pulls trigger without personally verifying it is unloaded has done something he must know is reckless and so guilty of involuntary manslaughter if death results. And that does seem to have been essentially the prosecution's theory. From this point of view it is just irrelevant where the live ammo came from because it cannot exculpate the defendant from his responsibility to follow basic rules of gun safety when handling a real gun.

Re: the #AlecBaldwin manslaughter dismissal based on a purported Brady violation by the prosecution--evidence "improperly withheld" from the defense:

The supposedly "withheld evidence" had to do with the source of the round that Alec Baldwin used to kill Halyna Hutchins.

I'm struggling to understand how the source of the bullet is material to #AlecBaldwin pointing what he knew to be a real gun at Halyna Hutchins, cocking the hammer, and pulling the trigger, without ensuring no live rounds in the gun, killing her.

After all, if a drunk driver commits involuntary manslaughter by running over a grandmother in a crosswalk, is it material where he sourced the gas for his car?

And if not material, it's not Brady material subject to disclosure.

In which case this #AlecBaldwin dismissal is in error.

[Foggy]

Even if Branca is right, I suspect that an ethical prosecutor would have disclosed the envelope with bullets in it. If it is so immaterial and worthless to the defense, what's the harm in producing it? Produce it and be ready to explain it, if necessary. But this prosecutor stepped over the line and then testified falsely, in the judge's eyes. The judge didn't explicitly accuse the D.A. of perjury, but that was one ANGRY judge.

[Sam the Centipede]

Two and a half questions for the lawyers

Is this dismissal based exclusively on the judge not tolerating prosecutorial misconduct ("you cheated! you're out of the game!") or is it more complex and nuanced than that? Does serious prosecutorial misconduct always lead to a dismissal with prejudice, which clearly would be a deterrent to trying to game the system as there would be no second chance if caught out?

Does this mean Hannah Gutierrez-Reed, the film’s armorer, might have some prospect of a successful appeal from her conviction for involuntary manslaughter? The ammunition involved was (iirc) known to her defense but they decided it was inculpatory rather than exculpatory, so of no use to them.

[pipistrelle]

Two and a half questions for the lawyers

Is this dismissal based exclusively on the judge not tolerating prosecutorial misconduct ("you cheated! you're out of the game!") or is it more complex and nuanced than that? Does serious prosecutorial misconduct always lead to a dismissal with prejudice, which clearly would be a deterrent to trying to game the system as there would be no second chance if caught out?

Does this mean Hannah Gutierrez-Reed, the film’s armorer, might have some prospect of a successful appeal from her conviction for involuntary manslaughter? The ammunition involved was (iirc) known to her defense but they decided it was inculpatory rather than exculpatory, so of no use to them.

Not a lawyer but it sounds like key evidence is significantly horked.

I wondered about the second.

[RVInit]

I've read the expedited motion, but I'm still confused about who Seth Kenney and Teske are and how they relate to Rust and to the principal participants.

But (and putting aside the possibility that the prosecutor needs to consider a new career) ...

In what world does someone who knows something about firearms and movie-making think that it would be fine to deliver some ammunition -- including _live_ ammunition -- directly to a production set?

And in what world does a retired police officer and justice of the peace think it's fine to hold on to bullets relevant to a homicide prosecution in which death was caused by shooting until after the first and principal defendant's trial was concluded?

The police never took seriously any attempt to discover where the live ammo came from. Prior to Hannah's trial I was 50/50 on whether Hannah had comingled live rounds that she had in her own possession prior to receiving any ammo from Seth Keeney, or whether the live rounds in fact came from Seth Kenney.

Evidence that came in during Hannah's trial had me about 30/70 whether Hannah or Seth Keeney had put those live rounds into the box of dummies.

Now I believe 2%/98% as to Hannah/Seth Kenney.

There is incontrovertible evidence that Sarah Zachary and Seth Kenney were looking for ways to get Hannah fired from the job after Seth was the one responsible for her being hired in the first place. This whole thing went off the rails the moment the director of this movie reneged on his responsibility to hire an ADULT prop master. It is the director that chooses the department heads. The department heads then choose the people who will work under them. Yes, TECHNICALLY Sarah Zachary is "an adult", But only technically. But Sousa didn't hire her. Instead, he reached out to Seth Kenney to recommend a prop master. The prop mater becomes the supervisor of the armorer. So, Seth Kenney recommended Sarah as prop master and Hannah as armorer. Ultimately, the LINE producer is the HR department on a movie set. Not Alec Baldwin. The Line Producer. She testified that she did have concerns about the age of the prop master and armorer, she voiced those concerns, but ultimately as long as the background check and reference checks come back clean she is not able to go back and say "I refuse to hire these people based on their age". That is age discrimination.

Because Sarah was so young, she had no actual command and behaved more like a teenager on this set. When she had her misfire, she should have been fired. But the 1st Assistant Director buried that fact since no producer or director witnesses or knew about it. Hannah mentioned it to Seth that we are obligated to tell the producers this happened. There are text messages verifying this, it was not a verbal conversation so this is absolutely verified. After that, Seth and Sarah texted each other about getting rid of Hannah, but wanted it to happen in a way that didn't involve either of them directly so they could pretend like they were not involved and were sorry she lost her job. They started doing things to stress her out, created a hostile work environment, etc. It seemed like they were trying to make it miserable enough that she would just quit.

As to the live rounds - this is what Friday showed - That Seth Kenney was the very likely source of those rounds. He had somewhere around 18 or 19 of those rounds when he went out of town with Thell and Teske. Thell, Teske, and Kenney each took about 6 of them. Thell Reed and Teske tried to give each of their 6 to investigators early in the investigation. Because Thell is Reed's adopted father and he knew they would disregard his, so he was hesitant to leave them with investigators without getting paperwrk, photos, etc them up, when they wouldn't take it seriously he kept his. Teske kept his also, until the incident where he did turn them over to the police. They are an exact match of the one that killed Hutchins and wounded Sousa and exactly the match the remaining live rounds that were found in that box that Sarah brought back from PDQ (Seth Kenney's ammo supply business) to the set.

The prosecution is trying to pretend that since Teske's and Reed's live rounds "never left a certain place, they are irrelevant". But that isn't the point. The point is that all of those rounds originally came from PDQ, they split the leftovers between them, and the ones that are accounted for are the ones that Reed and Teske still had AFTER 6 of the exact same kind were found in the ammo box on the set of Rust after one just like those 6 killed someone.

[p0rtia]

Thanks, RV!

[Sam the Centipede]

Thanks RV, I read your post, but I haven't been following the case much. The story about the live rounds sounds scary and I don't claim to have followed the ins and outs.

This part:

Seth and Sarah texted each other about getting rid of Hannah, but wanted it to happen in a way that didn't involve either of them directly so they could pretend like they were not involved and were sorry she lost her job. They started doing things to stress her out, created a hostile work environment, etc. It seemed like they were trying to make it miserable enough that she would just quit.

As to the live rounds - this is what Friday showed - That Seth Kenney was the very likely source of those rounds. He had somewhere around 18 or 19 of those rounds when he went out of town with Thell and Teske.

is unsettling.

That surely raises the suspicion that these creeps took the potentially and in fact actually fatal move of salting Gutierrez-Reed's blanks with live rounds, or something like that, doesn't it?

I understand (I do not condone!!) trying to create a hostile workplace for someone, and that alone should raise suspicions, but that is murderously crazy!