Prosecutors in Alec Baldwin ‘Rust’ shooting case are getting heat over apparent missteps

Actor Alec Baldwin departs his home, as he will be charged with involuntary manslaughter for the fatal shooting of cinematographer Halyna Hutchins on the set of the movie “Rust”, in New York, January 31, 2023.

David Dee Delgado | Reuters

It’s been just over a month since New Mexico authorities charged Alec Baldwin with manslaughter for the fatal shooting of a crew member on the set of the film “Rust,” and already the prosecution has come under harsh criticism and scrutiny.

First, there’s the question of whether the case’s main prosecutor is even eligible to try the case. The state’s constitution prohibits a member of one branch of government from exercising the power of another branch. Andrea Reeb, the special prosecutor, also serves as a Republican state legislator. Baldwin’s attorneys filed a motion on Feb. 7 to disqualify Reeb from the case.

Reeb and New Mexico’s First Judicial District Attorney’s office rejected that disqualification motion, calling the defense’s argument a “misconception” and saying it is “based on a novel theory that has no support in New Mexico statutes or case law,” according to court documents filed Monday.

“Accepting Defendant’s theory would require the Court to create new law, which would have state-wide implications, based on nothing more than creative, legally unsupported argument,” prosecutors wrote in the court filing.

Legal experts have also criticized Reeb’s overcharging of Baldwin based on a law that did not apply at the time of the fatal shooting. She backed down and downgraded the charges, which could result in a shorter jail sentence for Baldwin, if he’s convicted.

Lawyers also found incendiary press statements and media appearances by the district attorney’s office odd since prosecutors are typically advised to reserve their comments for the courtroom.

“From the outset, there have been some unusual facts surrounding the DA’s prosecution,” said John Day, a Santa Fe-based attorney who has practiced law in New Mexico since 1996.

The charges stem from the October 2021 shooting death of cinematographer Halyna Hutchins during the filming of independent film “Rust.” Baldwin, who also starred in “The Departed” and “Beetlejuice,” held the gun, which was loaded with live ammunition.

Baldwin, who is also a producer of “Rust,” and the movie’s armorer at the time, Hannah Gutierrez-Reed, were both charged in January with two different types of involuntary manslaughter by New Mexico First Judicial District Attorney Mary Carmack-Altwies. A jury, by law, can only convict them of one of those counts, each of which has a maximum possible sentence of 18 months in prison.

David Halls, the film’s first assistant director, signed an agreement to plead to the misdemeanor charge of negligent use of a deadly weapon and receive a suspended sentence and six months of probation.

Baldwin and Gutierrez-Reed are set to appear virtually for a status hearing on Thursday.

Carmack-Altwies appointed Reeb to be special prosecutor in August. Reeb previously was the Ninth Judicial District Attorney, but retired a year ago, shortly after launching her legislative campaign. She won the race in November but stayed on the “Rust” case.

Reeb’s dual role as legislator and prosecutor raised eyebrows in the local legal community. George Heidke, a former attorney in the First Judicial District Attorney’s Office, told CNBC this was the first time in his 25 years of practicing law in New Mexico he has seen a sitting legislator simultaneously serve as a prosecutor.

Baldwin’s lawyers argue Reeb should be removed from the case. “A prosecutor who also serves as a legislator could face pressure to make prosecutorial decisions that serve her legislative interests,” Baldwin’s lawyers wrote in a motion. Baldwin is an outspoken supporter of Democratic and progressive issues, making him a target of Reeb’s fellow Republicans.

The DA’s office responded to this argument Monday, saying that such claims are “purely hypothetical and demonstrate the limb Defendant must climb out on in order to allege some sort of ‘encroachment or interference.'”

There are other complications, as well.

An aerial view of the film set on Bonanza Creek Ranch where Hollywood actor Alec Baldwin fatally shot cinematographer Halyna Hutchins and wounded a director when he discharged a prop gun on the movie set of the film “Rust” in Santa Fe, New Mexico, U.S., in this frame grab taken from October 21, 2021 television footage. Footage taken October 21, 2021.

KOB TV NEWS | Reuters

“I think everyone agrees that she’s inappropriately placed in two different branches of government at the same time,” Lisa Torraco, the New Mexico attorney representing Halls, told CNBC. “This is a good reason why: I donate to her campaign as a legislator and now she’s the special prosecutor on my case.”

In September, Torraco donated $250 to Reeb’s campaign, assuming that if Reeb won the legislative race, she would automatically recuse herself from the “Rust” case. That didn’t happen.

“If I knew, I probably wouldn’t have given her money,” Torraco said.

Along with Torraco, Carmack-Altwies, a registered Democrat, and Dennis Maez, the private investigator for Halls, also contributed to Reeb’s campaign.

Torraco said there is no connection between her small campaign donation and Halls’ plea deal. But, according to Santa Fe lawyer Day, “It’s the appearance that’s important.”

“If you’re donating money to legislators, you’ve got to understand that people are going to have access to that and going to be wondering, ‘What’s going on here?'” he said. “This is exactly why you don’t want to …have a legislator who’s also acting as a prosecutor.”

Heather Brewer, the DA’s spokesperson hired specifically for the “Rust” case, confirmed Torraco’s donation. She added that Reeb’s “integrity could never be compromised by a $250 contribution – or a contribution of any amount. Her only focus is serving the public honorably, and she will continue to do so in pursuing justice for Halyna Hutchins.”

Gutierrez-Reed’s lawyers co-signed Baldwin’s motion to disqualify Reeb. The DA’s office declined to comment on the motion before filing its response.

Reeb’s role in the legislature aside, local lawyers found it strange that Carmack-Altwies appointed a special prosecutor in the first place. Historically, if the DA’s office does not have the resources to handle a case, it has called on the state attorney general for help.

Instead, Carmack-Altwies requested $635,000 from New Mexico’s Board of Finance, claiming that her office needed an additional attorney, media contact person and other personnel specifically dedicated to the “Rust” case, according to a letter she sent to the finance board on Aug. 30.

When a member of the finance board asked Carmack-Altwies whether she had approached the attorney general for assistance, she said that she had not “specifically reached out about this case in particular,” according to minutes of a hearing on her funding request. Reeb was the better option, said Carmack-Altwies, because she has “25+ years of experience, and this will be her only case for the next 12 to 18 months, which is by design.”

The state granted the DA’s office $317,750, about half of the original request.

Torraco said the charges that Baldwin and Gutierrez-Reed face are among the lowest-level felonies in New Mexico.

“And they’re asking for hundreds of thousands of dollars from the legislature to prosecute it? It’s just absurd,” said Torraco. “They prosecute fourth-degree felonies every single day … why all the hype?”

The legal risk that Baldwin faced was much higher until last month, when his lawyers challenged another decision by the prosecution.

When Reeb first filed criminal charges, she included a so-called firearm enhancement charge, which carries a potential five-year prison sentence. Baldwin’s lawyers filed a motion on Feb. 10 to eliminate that enhancement since it became a law seven months after the fatal shooting occurred, violating the legal concept known as “ex post facto,” or after the fact.

It was a “first-year law student mistake,” said Day. “If you’re a prosecutor, it’s your obligation to make sure you’re charging the correct law. And it’s embarrassing for that to happen because it shows they’re not paying attention to detail.”

Reeb, in a Feb. 12 email to Baldwin’s lawyers, pointed to her legislative duties after they raised their objection to the enhancement. She wrote that she had been “busy in session all week,” and that she now was only able to take a look at the specifics of the firearm enhancement more closely.

Reeb soon after admitted she had incorrectly applied the enhancement and dropped it from the case.

The case has received significant media attention, which has persisted due to Baldwin and the prosecutors’ press communication. Baldwin gave an interview to ABC’s George Stephanopoulos in December 2021. Carmack-Altwies and Reeb have in turn made their own appearances on CNN and Fox News.

Beyond that, Brewer, the spokesperson specifically hired for the “Rust” case, has made several heated statements about Baldwin and his attorneys on behalf of the DA’s office.

Cinematographer Halyna Hutchins is seen in this undated handout photo received by Reuters on October 23, 2021.

Swen Studios | via Reuters

After the Feb. 10 motion to reduce the firearm enhancement, Brewer told CNBC that the DA’s office is dedicated to holding everyone, “even celebrities with fancy attorneys,” accountable under the law. Nearly two weeks later, when Reeb dropped the enhancement, Brewer said in a statement that the withdrawal of the charge was “in order to avoid further litigious distractions by Mr. Baldwin and his attorneys.”

“The prosecution’s priority is securing justice, not securing billable hours for big-city attorneys,” Brewer added.

Brewer also has suggested that Baldwin’s attempts to remove Reeb from the case are designed to take the focus off Baldwin’s alleged criminal conduct. “Mr. Baldwin and his attorneys can use whatever tactics they want to distract from the fact that Halyna Hutchins died because of gross negligence and a reckless disregard for safety on the ‘Rust’ film set,” Brewer said in a public statement.

The American Bar Association advises against attorneys making public statements that could prejudice a jury in a criminal case, particularly as it relates to the “character” or “reputation” of defendants.

“Prosecutors have to walk a very fine line between what you can say publicly,” said Day, the local lawyer. “You don’t want to be accused of poisoning the jury pool ahead of time. And that certainly could be an issue here.”