Prosecutors in New Mexico charged Alec Baldwin last week with a gun allegation that was not on the books at the time of the “Rust” shooting.
Baldwin is facing a charge of involuntary manslaughter as well as a “firearm enhancement” in connection with the death of cinematographer Halyna Hutchins. The enhancement carries an additional five-year penalty for discharge of a firearm in the course of a felony.
But that enhancement did not become law until May 2022, seven months after Hutchins was killed. That raises a question about whether a judge would allow prosecutors to pursue that additional five-year term.
First Judicial District Attorney Mary Carmack-Altwies and her appointed special prosecutor, Andrea Reeb, are reviewing the issue, said a spokeswoman for the office.
“The District Attorney and special prosecutor are actively reviewing all applicable laws to ensure they have the strongest case to secure justice for Halyna Hutchins,” said the spokeswoman, Heather Brewer.
Baldwin’s attorney did not respond to a request for comment.
Prosecutors filed the same charge and the same enhancement against Hannah Gutierrez Reed, the film’s armorer. Her attorney, Jason Bowles, said the D.A. is seeking to apply the enhancement retroactively, in violation of her constitutional rights.
“We will be addressing this with motions,” Bowles wrote in an email. “They have clearly charged an enhancement that is barred by the constitution and ex post facto law.”
A criminal attorney in New Mexico, Caitlin Smith, first flagged the issue to the legal affairs podcast “Serious Trouble,” which covered the Baldwin case last week.
“They probably shouldn’t have charged it,” Smith told Variety, adding that the defense could file a pre-trial motion to have the enhancement thrown out.
At the time of the “Rust” shooting, New Mexico law did allow for a three-year enhancement for “brandishing” a firearm in the course of a felony. But the term “brandished” was given a specific definition requiring “intent to intimidate or injure a person.”
Involuntary manslaughter applies only to unintentional killings. In interviews, Carmack-Altwies has characterized the “Rust” shooting as an accident, though one that can be prosecuted because of the negligence involved.
The version of the firearm enhancement that applied at the time of the shooting went into effect in July 2020. At that time, lawmakers were looking to toughen the penalties for gun crime. So they increased the sentence enhancement for use of a firearm during a felony from one year to three years.
But at the same time, they limited the circumstances in which that enhancement would apply by dropping the word “use,” which had a broader application, and replacing it with the narrower term “brandishing.”
That term was defined to mean “displaying or making a firearm known to another person while the firearm is present on the person of the offending party with intent to intimidate or injure a person.”
By 2022, the Legislature had concluded that the definition was too narrow. So it added a one-year sentence enhancement for “use” of a firearm during a “drug transaction, aggravated battery, or serious violent offense” — with no requirement that the gun be “brandished.” The Legislature also added the five-year enhancement for discharge of a firearm in the course of any non-capital felony — the enhancement that has been applied to Baldwin and Gutierrez Reed.
With the enhancement in place, each defendant faces up to six and a half years in prison. If it were dropped, they would face only 18 months.
Baldwin and Gutierrez Reed are due to make their initial appearances in court on Feb. 24, in a hearing that will be conducted over Google Meet.
David Halls, the first assistant director, is expected to appear in-person at the Santa Fe courthouse on March 8 to plead no contest to a misdemeanor, negligent use of a deadly weapon. Halls is expected to get six months of probation.
On Tuesday, Baldwin’s attorneys filed a motion to disqualify Reeb, who was brought in last year to assist the First Judicial District Attorney’s office. Reeb, a Republican, was elected in November to the state House of Representatives, and Baldwin’s lawyers argue her appointment as a special prosecutor violates the separation of powers provision in the state constitution.