‘Midnight Rider’ First A.D. Seeks Dismissal Based on ‘Prosecutorial Misconduct’

Midnight Rider Doctortown Trestle Sarah Jones
Mike McCall for Variety

Hillary Schwartz, who was the first assistant director on “Midnight Rider,” contends that she was indicted on charges of involuntary manslaughter and criminal trespass even though there was an immunity agreement in place when she shared information about the Feb. 20 accident that killed camera assistant Sarah Jones and injured eight others.

Schwartz was indicted in September, more than two months after director Randall Miller, producer Jody Savin and executive producer Jay Sedrish were also each charged with involuntary manslaughter and criminal trespass.

But in a motion to dismiss her indictment, Schwartz’s attorney, Austin Catts, contends that the Wayne County special assistant district attorney, John B. Johnson, told them that her statement for their investigation were for “her testimony in the trial of other persons and not usable against her.”

“Hillary and the District Attorney’s Office had entered into a solemn, binding and enforceable immunity agreement under the terms of which she would give a statement, she would be available for interview, she would testify, and she would not be prosecuted for any crime involving the accident at the railroad trestle in February 2014,” Catts wrote in the motion, filed in Wayne County Superior Court on Tuesday.

Jones was killed when a train unexpectedly came as the crew of the movie was shooting on tracks near Jesup, Ga. CSX Transportation, the owner of the tracks, said that the production was denied permission to shoot there.

Schwartz’s attorney claims that when she was interviewed by Johnson and Detective Joe Gardner of the Wayne County Sheriff’s Office on July 29, Johnson again reiterated that the conversation was “being done for the purpose of you being a witness and not being prosecuted in that case.” The interview was recorded. Instead, Catts contends in the motion, Johnson presented evidence to a second grand jury on Sept. 10 and obtained an indictment against her.

The trial is scheduled to begin on March 9. Schwartz also is seeking to have her case severed from that of the three other defendants.

Also filing motions was Sedrish. He is seeking to suppress evidence gathered in a search warrant served on Time Warner Cable to obtain his email communications about the case. A key point of prosecutors in the trial is expected to be the extent to which defendants knew that they did not have permission from CSX Transportation to be on the railroad trestle that day.

Sedrish’s attorney, John Ossick, claims that the search of Sedrish’s email account was done without a valid warrant, and that the one issued and signed by a judge lacked probable cause and was overbroad.

“The affidavit references Mr. Sedrish’s electronic mail account without revealing why, as a mere recipient of a forwarded electronic mail from CSX, there would be reasonable expectation to obtain evidence of or fruits of a crime if the search were permitted,” Ossick wrote in the motion.

Investigators were seeking to see who received an email from CSX that location manager Charles Baxter forwarded to the crew. Baxter was not present on the set that day.

Pretrial motions are scheduled to be heard on Feb. 12 and 13.