Alec Baldwin Dodges a Legal Bullet

Sometimes big city lawyers are worth their billing rates.

At least, that’s what Alec Baldwin will be thinking when he writes his a check.

Recall that the “Rust” actor has been charged with two alternative counts of involuntary manslaughter in connection with the Oct. 21, 2021, shooting death of cinematographer Halyna Hutchins. Baldwin was rehearsing a scene on a set near Santa Fe, New Mexico, and a loaded gun in his hand went off, killing Hutchins and wounding director Joel Souza. Baldwin maintains that he had been told the gun didn’t contain live rounds and, in any case, that he didn’t pull the trigger.

In New Mexico, involuntary manslaughter carries up to an 18-month jail term and a fine. Prosecutors sought to add five years to the possible sentence because a firearm was “discharged” during the incident. This meant Baldwin could face 6 1/2 years in prison.

But the prosecutors had made an elementary mistake.

Firearm Enhancement Statute

Like many states, New Mexico “enhances” a criminal sentence in certain cases if a gun is involved. At the time Baldwin was charged, the law imposed a mandatory five-year enhancement if a gun was “discharged” during the commission of a noncapital felony such as involuntary manslaughter. The criminal information (the charging document filed by the prosecutor) specified this statute as the basis for an additional five years to any sentence.

And then, the prosecutors went on a media tour. They gave interviews to Ray Sanchez of CNN, Sean Hannity of Fox, and Jeanine Pirro of Fox, in which they said that Baldwin is facing many years in prison.

Now, despite what you see on TV, prosecutors generally aren’t supposed to talk to the press about cases they are handling. It can be unethical, and it can taint a jury pool (a tainted jury pool can spoil a criminal conviction). Apparently, they were so sure of their stance that these concerns didn’t trouble them.


Wrong Version of the Statute

Their mistake was to charge under the current version of the statute. Under the Ex Post Facto Clause of the Constitution, you can only be charged and punished based on the law as it existed at the time of the alleged crime. Seeking to apply the current version of the enhancement statute was a constitutional no-no.

And at the time of the incident, the law was different. On Oct. 21, 2021, the five-year enhancement applied only if the defendant had “brandished,” not just “discharged,” a firearm in the commission of a noncapital felony. The statute defined “brandished” as displaying it “with the intent to intimidate or injure a person.” Neither the prosecution’s probable cause statement nor their criminal information said that Baldwin did anything “with the intent to intimidate or injure” anybody.

Rather than wait and see what would happen, Baldwin’s lawyers filed a motion on Feb. 10, before Baldwin’s first felony appearance, asking the court to decline to “bind over” the firearm enhancement. This means that if the judge at the preliminary hearing found probable cause that a crime was committed, she would order Baldwin to stand trial without the possibility of him being subjected to the firearm enhancement.

Oh, to have been a fly on the wall in the district attorney’s office when she discovered the mistake.

Prosecutors Drop the Enhancement

Sadly, we don’t know what was said, but we do know what she did. On Feb. 17, the district attorney filed an amended criminal information in which she dropped the firearm enhancement. She must have concluded, rightly, that her office had made a basic charging mistake, and rather than fight about it with Baldwin’s lawyers and embarrass herself and her staff before the judge, she would be better off just dropping the enhancement altogether. She chose to eat a little crow.

What does this mean? Alec Baldwin isn’t facing 6 1/2 years in prison anymore. If he is convicted, the most he can get is 18 months.

This is a huge win for Baldwin and his trial team. Kudos to the lawyer who caught the charging error.

Where Does This Leave Baldwin?

Will Baldwin go to prison? That’s hard to say. When facing the enhanced sentence, the prosecution had more leverage and could twist Baldwin’s arm into agreeing to at least some time behind bars. Now, there’s no enhancement and less leverage. On the other hand, the DA and her staff may be licking their wounds after their very public mistake and have grown even more determined to see Baldwin serve time. We’ll see.

Baldwin has pleaded not guilty to the involuntary manslaughter charges. In the meantime, filming on “Rust” will continue this spring at the Yellowstone Film Ranch in Montana.

Related Resources:

Will Alec Baldwin Go to Jail for Involuntary Manslaughter? (FindLaw’s Celebrity Justice)

What Will Happen to Alec Baldwin? (FindLaw’s Law and Daily Life)

New Mexico Involuntary Manslaughter Law (FindLaw’s Learn About the Law)

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