Fogbow

Ok, a couple of other differences I noticed between Morrissey's story and RVInit's account.

- Teske did not go to the 1883 "Cowboy Camp" training in Texas with Reed and Kenney. He simply stored stuff for his good buddy Thell Reed because he had a more secure house. He said he had those live rounds before anyone else did, namely in storage for Thell. Thell came and took some back from him in his green ammo can for use on 1883 training. This is all from Teske's own pre-trial interview for the Gutierrez case, which is in one of the appendices to the overlong motion for reconsideration.

Per Kenney, Thell and Hannah drove to meet-up with Kenney in Albuquerque. Kenney saw Thell load his daughter up with what she needed for her film. Then she drove off to Montana for the Nicolas Cage movie, while Kenney took control of the rounds and traveled with Reed on to Texas, and then Kenney kept the unused leftover live rounds.

This is the key point Morrissey harps on again and again and yet again: the Teske rounds never left Arizona. There is no evidence they were ever in Kenney's possession or that he ever had any access to them. This is the core of her claim they are irrelevant to the case.

Other details that provide modest support for the Gutierrez theory are that en route to The Old Way, Hannah texted Kenney from Denver asking if he knew where she could get 45 live rounds then said she had found some, and then asked him if it was OK to shoot out of the prop guns (Definitely not, "always ends in tears" he texted back).

- I think you have been saying that the tray found with the live round on the prop cart was from the box of 45 dummies that Kenney supplied. But a key to Morrissey's story is that Hannah identified the box she used to load Baldwin's gun. It had a distinctive printed label with a JS (Joe Swanson) logo on it. Hannah showed police that she got boxes of that type from her Dad. Meanwhile, the lone box of dummies that Kenney provided just had his handwritten labelling scrawled with a sharpie. So that is pretty good evidence the box was from Hannah, not the one Kenney provided through Zachary.

While Kenney provided lots of stuff to the set, it is assserted he only provided that one box of 50 .45 Long Colt dummies. Yes, he ultimately billed the production for 200, which he represented as a memory error, but I expect he was just padding his invoices. I'm just not aware of any evidence for more Kenney .45 dummies.

- Sure the pictures are not proof, but they are suggestive. There's a picture of Hannah with a tray of putative dummies with two "odd men out" with nickel primers, and itwas taken before Kenney delivered his box of dummies. After the shooting they find a very similar tray on the prop cart, the one Hannah admitted she used to load Baldwin's gun, from a box of a type only she had, and now it has only ONE such odd man out, in exactly the same position as in the earlier photograph, and that turns out to be a live round. It's not proof positive since you can't tell a live round from a photo. But what are the odds it's just a coincidence?

So I continue to accept that Kenney was suspicious AF, it was absolutely absurd the way Hancock allowed him to insinuate himself into the investigation, BUT: I still think probably it was Hannah who brought the live rounds conmingled with dummies and failed to detect them through inadequate checking.

Morrissey just repeats every single Seth Kenney story. That's all she knows. Hancock fell for every Seth Kenney story, and any interview Kenney did directly with Morrissey I'm sure she buys it too, because it fits the simple story. The simple story is that Hannah did everything. That is easy, simple, quick, and easy for a jury, and the general public to buy. Morrissey doesn't know shit because she either doesn't want to know OR, probably even just as likely, she did NOT take the time to personally watch hour and hours and listen to 45 phone calls Hancock had with Kenney in order to find any holes in his stories. The final version of his stories fit what she wants to tell the jury.

I did find it funny that in his testimony at the hearing that ended the case Morrissey had to break up his "why I went to cowboy camp" story into two pieces. She let him answer only a quick "to take the reloads to cowboy camp". She stopped him and then asked a few other questions, then got back the "how Hannah got the live rounds". She had to break then up because when you read the whole story, it doesn't make sense that Thell (therefore Hannah) had access to the reloads in Albequerque AND Seth had to personally deliver the reloads to Texas (when Thell was headed to Texas at the same time). So, she clearly knew his story didn't make sense enough that she had to break it up.

I guess I have not understood how double jeopardy applies to the idea of appealing this dismissal. Of course IANAL, just trying to understand based on what other commenters say. Came across this:

Kyle D on Twitter wrote:NM attorney here. The state can still appeal (and not violate DJ) after the jury has been empaneled if the order appealed is “not an adjudication on the merits and does not amount to an acquittal.” State v Roybal, 2006-NMCA-043. I don’t believe this order would qualify as such.

https://x.com/Duffman505/status/1812189512950555066 (case link added)

So while it's true state can't appeal if reopening the case would violate the US constitution's prohibition on double jeopardy, it seems NM courts recognize exceptions based on the rule above, in line with Supreme Court rulings on double jeopardy, like US v Scott, 1978, mentioned by Erlinda Johnson in the interview I posted.

In Roybal, a drug trafficking case was dismissed with prejudice for lack of venue (allegedly tried in the wrong county), but the SCNM overturned this and remanded for further proceedings in the orginal court.

Roybal itself relies on other cases for support, chiefly County of Los Alamos v Tapia (1990) in which a DUI arrest was deemed illegal, all evidence from the arrest thrown out, and the charge then dismissed for lack of evidence. But again, the NM Supreme Court decided that this was not effectively an acquittal on the merits, vacated the dismissal, and remanded to resume trial.

Given the reasons for the Baldwin dismissal, it sounds like it would not be that controversial in NM that prosecution can appeal it and potentially get the case re-opened. I don't think it can be argued that the dismissal was effectively an adjudication on the merits. I still don't expect Morrissey to succeed with such an appeal when she gets to it. But it's interesting to know that Baldwin's jeopardy has not in fact conclusively ended in view of these decisions.

Team Baldwin has filed their Response to State's Amended Motion for Reconsideration of Dismissal Unsurprisingly, argues State's motion should simply be stricken as defective (abused length requirements first time and now stilll too long at 11 pages), or in the alternative, denied on merits, and asks to award legal fees for preparing response as sanction. Couple of choice bits:

....No basis exists to reconsider the Court's decision.

But here comes Kari Morrissey. After she repeatedly violated the State's disclosure obligations, buried evidence, lied about it at trial, and then lied about her reasons for lying about it, Morrissey has the audacity to ask the Court to order Baldwin to "to provide a description and all documents related to when and how they learned of evidence that the State suppressed. It is difficult to imagine a more backwards or conceited attempt to blame the victim of the State's own "willful and deliberate misconduct." Order, 1 53, 56. Not only has the State failed to present any new information to warrant reconsideration, but the new information that has emerged since trial only underscores the strength and necessity of the Court's judgment. Specifically, an affidavit by Special Prosecutor Erlinda Johnson—who, contrary to Morrissey's lies, resigned because of the State's misconduct demonstrates that Morrissey continues to distort the truth. [Affidavit link added]

A motion for disimissal is "not [an] appropriate [vehicle] to revisit issues already addressed or advance arguments that could have been raised in prior briefing," as the State attempts to do here. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); see also Unified Contractor, Inc. v. Albuquerque Hous. Auth., 2017-NMCA-060, 1 77, 400 P.3d 290 (no abuse of discretion "in denying a motion for reconsideration that ' was merely a restatement of the arguments [the movant] had already advanced.'").

I know this is going nowhere with this judge, I just find the level of sniping amusing.

Servants of Paraclete? That's a name birther Leo Donofrio used to claim, back when he realized he was a deity of some sort.

OK, now I goog the gong. Servants of Paraclete. Got it. A Catholic order of some sort. And the word itself?

Paraclete (/ˈpærəkliːt/; Greek: παράκλητος, romanized: Paráklētos) is a Christian biblical term occurring five times in the Johannine texts of the New Testament. In Christian theology, the word commonly refers to the Holy Spirit and is translated as 'advocate', 'counsellor' or 'helper'.

I checked out the Case. It really has nothing to do with the issues in Rust directly, it seems to have been referenced to provide precedent to their argument and that's all.

https://casetext.com/case/servants-of-paraclete-v-does

Suranis wrote: ↑Sat Sep 21, 2024 10:12 pm I checked out the Case. It really has nothing to do with the issues in Rust directly, it seems to have been referenced to provide precedent to their argument and that's all.

https://casetext.com/case/servants-of-paraclete-v-does

Right, it's just a fancy way of getting in the fact that Morrissey is just reiterating the arguments that failed when the motion was heard.

I appreciated Foggy's interjection. It's no Cobbledick, but "paraclete" is an excellent word to learn. Why, I still have an old paracletes from when I played pickup soccer. [ba dum, etc]

For anyone interested, Hearing Thursday 9/26 on Hannah Gutierrez’ motions for release and dismissal or new trial, 10AM Mountain Time (noon eastern), streaming on NM court channel below and, I expect, CourtTV.
https://www.youtube.com/live/QOsFvTIskp ... _jCJvtzYNI

Today there were motions heard to release Hannah Gutierrez pending appeal, motion to remove Morrissey from the case, and motion to dismiss Gutierrez case/verdict.

The gist of the arguments from Bowles (Hannah lawyer):

Proximate cause and 3rd party negligence could have been argued had defense been able to have the Teske evidence. Morrissey said she would collect those rounds and Bowles depended on her word that was going to happen. So that is why he didn't independently attempt to collect that evidence. He expect it would be collected just like bullets that were turned over by Seth Kenney were accepted into evidence and tested. In the end right before trial he found out they were not going to collect them.

The Haag report was suppressed and they never found out about it until Baldwin's attorneys discovered it from emails that were turned over to them by the new co-counsel prosecutor. This had to do with Haag's supplemental report that it is unlikely that the tool marks were due to FBI testing. They also were not consistent with original manufacturing. Bowles specifically asked Haag "did you see any other damage on that firearm other than what the FBI testing". Haag responded "no", which turns out to be untrue. The suppressed supplemental report showed he lied. Morrissey tried to spin that it was related to "functionality". He asked open ended, not specific, so that answer was false.

The gist of that supplemental report was that the trigger and sear both had unexplained tool marks. (I had previously posted about the fact that Seth Kenney had said that the hammer got stuck in the fully cocked position and he had to "fix it". He mentioned that during fixing it is when he noticed that Hannah had made scratches on the bottom of that gun and he was going to have words with her about it. Then, when Hannah was asked by detectives if the gun retrieved from Baldwin after the shooting was the same gun as the one she loaded, she said she recognized it was the same because of scratches made on the bottom. The significance of this is that Kenney had to "fix" the gun so it wouldn't get stuck in the fully cocked position. Baldwin first was directed to quarter cock the gun and let his finger go and it did not go off. Then he was directed to half cock and again it didn't go off. Then he was directed to fully cock it and it immediately went off. Note that he used two different guns during filming, so it is unknown if he had ever used this gun during filming. Except that this scene was the only scene that he ever had dummy rounds in the gun where he was asked to take the gun out and manipulate it for the camera)

Baldwin's attorneys found out about that report because they found out about emails that set up an emergency meeting between both of Morrissey's gun experts right before Baldwin trial because the supplemental report was going to cause contradictions in testimony if Haag accidentally testified to his opinion in that supplemental report. Haag was convinced during that Zoom meeting between himself, the other gun expert, and Morrissey that he no longer had that opinion, so he would not be testifying to that opinion.

Detective Hancock Interviews with Seth Keeney were also suppressed and would have been used for cross exam to show Seth Kenney made multiple conflicting statements in several interviews. (An understatement, IMO). This new Brady violation they recently found out about creates a situation where they could easily have undermined Kenney's credibility had they known about all these interviews. (there are at least 45 phone calls and I don't know how many sit down video interviews between Hancock and Kenney. She essentially used him as a detective, sharing every single new finding with him so he could spin it for her. That is one of the craziest things about this whole investigation)

Also asking for Morrissey to be removed from the case due to her testifying untruthfully and so many instances of Brady violations.

Also has an affidavit by Erlinda Johnson were she corrected Morrissey's statement under oath that she quit due to not wanting a public hearing. She quit due to concerns about multiple incidents of co-counsel (Morrissey) Brady violations.

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Morrisey response:

Morrissey stands by her previous response to motion to throw out case. Now she is saying that Johnson disagreed with her on the final Brady violation to not dismiss the case and that Johnson wanted to do it out of "self preservation" (The word Johnson actually used in her public statement of why she asked to be removed from the case was ETHICS, for ETHICAL reasons, not "self preservation" as Morrissey is stating here. JHC Morrissey is still misrepresenting things.)

I am stunned at this woman's continued misrepresentations of things that are now available on public record in freaking VIDEOs on YOUTUBE, for crying out loud. This woman has no shame at all.

He didn't relate removing her based on any law, there has not been a legal analysis, so Morrissey should not be removed from the case.

As to the veracity of my testimony it's not relevant here. There was no "meeting" about the rounds, I did not see the rounds, I did not see the doc report until July 11 or 12.

(OK, it was a phone call, Poppell collected the Teske rounds and saw them with her own eyes. Three of them are dead on matches of the live ammo from the set, except the Teske rounds are in the clean, new, shiny condition, and the live rounds were patinated by Kenney when he patinated all the dummies. So, Poppell saw these rounds, she had JUST finished testify in Hannah's case. She testified about the LIVE ROUNDS. So, she is seeing rounds exactly like the ones she JUST testified about. I find it hard to believe she did not tell Hancock and Morrissey that, hey, Teske brought THREE live bullets that look just exactly like the live ammo from the set that I just testified about)

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Bowles response:

I did not want to be in the chain of custody after Morrissey failed to collect the rounds more than a year ago, and now I am even more glad I didn't do that as Morrissey is now accusing Teske of "planting bullets with silver primer" in with his other ammunition.Teske originally did a cursory search of a large can of mixed ammo and didn't know he had a handful of silver primer. Morrissey told him she was going to arrange for the whole can to be picked up. By the time Bowles found out that Morrissey was not going to get those rounds it was too late without a trial continuance, which was not granted for this.

As the court put in paragraph 30 there was a progressive trail shown as how the rounds could have ended up on the set from Seth Kenney. With regard to the Haag report, somehow Bowles gun expert was supposed to look through thousands of photos of the gun and somehow divine the facts that Haag had noticed from his inspection and had only put into a supplemental report. The failure to produce that report from the state's main witness, Bowles took the witness pretrial interview and trial, he did not answer in a truthful manner. Morrissey wants to conveniently forget abut that.

We have abundant 14.251 negligence of 3rd parties and proximate cause argument that the jury could have considered if we had this evidence.

I boiled it down to the top eight arguments. We could have crossed Seth Kenney on that, he was an important state witness as Morrissey well knows. There was no way for us to use the Teske rounds on the last day of trial. Morrissey effectively suppressed that evidence by claiming she was going to retrieve them, Bowles taking her word for it, at the last minute it required a continuance, which was not granted based on unknown bullets from Teske.

The behavior by Morrissey, her false testimony, this affects the whole system. Why people voluntarily turn themselves in to jail for subsequent trial is because they have respect, confidence, and trust of the legal system

Morrissey destroyed trust in the legal system in a trial that was widely publicized and watched. This is probably one of the worst ethical misconduct I have seen in New Mexico.

I am asking the court to consider dismissing this case or ordering a new trial.
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Judge is going to issue an order early next week
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Motion for Early release:

This would be predicated on the motion just argued, I don't know if it's ripe until this court rules. Judge says she thinks it's ripe, he has case law.. Some of the same arguments regarding Haag suppressed report and false testimony. There are issues Hannah made, but she didn't have actual violations, she did not attempt to flee or avoid prosecution or her obligations. She is not a danger, she does not have firearms, she could be on house arrest while decisions are pending. One of the problems is the length of time for appeal is likely to take longer than her sentence, so we are asking to consider releasing her while appeals and this court's pending motion
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Morrissey we don't have evidence put we listened to jail calls, she discussed violating court order to not possess firearms. she has already signed a guilty plea in her other case. Based on these issues asking court to deny request to release Hannah. One of the things that mystified me, he filed more than one motion asking to release Hannah, but if Mr Bowles has concerns that his appeal is going to take so long, why isn't he addressing that fact with Court of Appeals, not here. I have never seen a case where the District Court dismissed a case post conviction based on discovery issues. (She's just arguing the first motion again instead of this one)

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The reason we are asking for dismissal of the case is because this is the worst case of prosecutorial misconduct, of lying, cheating, and hiding evidence that I have ever seen.

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Next week judge will issue two separate orders.