Alec Baldwin’s attorneys alleged on Friday that New Mexico prosecutors committed a “basic legal error” when they charged him with a five-year gun enhancement that did not apply at the time of the “Rust” shooting.
In a motion, Baldwin’s lawyers asked Judge Mary Marlowe Sommer to throw out the enhancement as a violation of the constitution’s “ex post facto” clause.
“The prosecutors committed a basic legal error by charging Mr. Baldwin under a version of the firearm-enhancement statute that did not exist on the date of the accident,” wrote Baldwin’s legal team, led by Luke Nikas, adding that under the state and federal constitutions, “that version of the statute could not apply to conduct that occurred before it was enacted.”
Baldwin and “Rust” armorer Hannah Gutierrez Reed were charged on Jan. 31 with involuntary manslaughter in the death of Halyna Hutchins, the cinematographer who was shot and killed on set in October 2021. The charge carries a maximum sentence of 18 months in prison.
First Judicial District Attorney Mary Carmack-Altwies and special prosecutor Andrea Reeb also charged a gun enhancement that carries an additional sentence of five years.
But that version of the law did not become effective until May 2022, seven months after Hutchins’ death. The version of the law that was in effect at the time of the shooting allowed only a three-year enhancement for “brandishing” a firearm in the course of a felony.
Baldwin’s lawyers argue that that version of the law does not apply either because it requires “intent to intimidate or injure a person.”
“The government’s statement of probable cause contains no allegation that Mr. Baldwin acted ‘with intent to intimidate or injure a person,’ and its description of the alleged conduct makes clear that the tragic death of cinematographer Halyna Hutchins was an accident,” Baldwin’s lawyers wrote.
When asked about the applicability of the gun enhancement earlier this week, a D.A. spokeswoman said the office was looking into it.
“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 lawyers asked the judge to address the issue “as soon as possible,” arguing that the D.A.’s public statements threaten to taint the jury pool and prejudice the case. But a judicial resolution may have to wait until a preliminary hearing, when prosecutors will be required to show that there is enough evidence to take the case to trial.
Baldwin has a right to a preliminary hearing within 60 days of his first appearance, which is set for Feb. 24.
Gutierrez Reed was also charged with the same enhancement. Her attorney, Jason Bowles, said earlier this week that he also intended to file a motion to throw out the enhancement.
“They have clearly charged an enhancement that is barred by the constitution and ex post facto law,” Bowles said via email.
On Tuesday, Baldwin’s lawyers also filed a motion to disqualify Reeb, arguing that she cannot serve as a special prosecutor because she is also a member of the state House of Representatives.
Gov. Michelle Lujan Grisham has asked the Legislature to approve $317,700 to pay for the “Rust” prosecution, which includes the cost of Reeb’s salary. Reeb has said she will recuse herself from any votes that present a conflict of interest.
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