Jennifer Burrill is president-elect of the New Mexico Criminal Defense Lawyers Association.
Another 15 months could well pass before an actual jury trial begins. In New Mexico, you can’t even raise the issue of being deprived of a speedy trial until felony charges have been pending in court for 18 months in cases like this. In New York, prosecutors must be ready to go to trial for felonies within six months.
The only relatively swift justice in sight was available to “Rust” first assistant director David Halls, the person who allegedly handed the gun to Baldwin before the shooting. Halls signed a plea agreement last month for the charge of negligent use of a deadly weapon, a petty misdemeanor, carrying a maximum sentence of six months. But he won’t be spending a day in jail. His lawyer tells me that the agreement calls for unsupervised probation.
The glacial pace of New Mexico justice is just one aspect of the high-profile case that has perplexed observers. Another is how the criminal charges in a shooting death could carry, as in this case, a maximum sentence of just 18 months — as though actions that result in the death of another human being were the equivalent of drug possession.
Normally, in New Mexico, they wouldn’t. The state’s laws tend to allow for heightened penalties with a felony if it involved the taking of a life: A third-degree felony usually carries a sentence of three years, but when the third-degree felony involves voluntary manslaughter (death resulting from a sudden quarrel in the heat of passion), the maximum sentence is doubled, to six years.
A fourth-degree felony of involuntary manslaughter — the charges against Baldwin and Gutierrez-Reed in the death of cinematographer Halyna Hutchins — used to carry such a heightened penalty, which doubled the sentence, but that changed in 2015, when the U.S. District Court of New Mexico limited the use of the heightened penalty. The sentence could be increased, the court ruled, only if the death was reasonably foreseeable.
The district attorney is pursuing another path to gaining a longer sentence: seeking a “firearm enhancement” that would result in a mandatory five-year term.
How did prosecutors arrive at the involuntary manslaughter charge? In New Mexico, the accused’s actions must fit into one of three categories to be classified as involuntary manslaughter: (1) commission of an unlawful act not amounting to a felony (this category is intended for misdemeanor crimes in which someone oddly dies); (2) commission of a lawful act that might produce death in an unlawful manner; or (3) commission of a lawful act that might produce death without due caution and circumspection.
This third category most closely aligns with the reported facts in the “Rust” case. Holding a gun on a movie set is a lawful act. Pointing a gun at another human without checking that the gun is not loaded with live rounds could result in death if due caution is not taken. But the known facts about the shooting — that an actor on a movie set was using a gun that had been cleared by an armorer as unloaded — indicate that the death was not reasonably foreseeable. Thus, involuntary manslaughter fourth-degree felony wouldn’t qualify for an enhanced penalty. The standard 18-month sentence applies.
One twist in the charges and potential sentencing: the “firearm enhancement,” with a mandatory five-year sentence, sought by the district attorney. A jury would have to find, according to the law, that “a firearm was discharged in the commission of a noncapital felony.” The challenge for prosecutors in seeking the enhancement is that the involuntary manslaughter alleged in both cases occurred during otherwise lawful conduct, not as part of a separate felony. A jury would probably find it hard to see how the firearm enhancement applies here.
The most important question: What is the goal of this prosecution? How would a criminal conviction for what the prosecutor has termed an accident make New Mexico safer? How would obtaining a jury conviction years after her death deliver justice for Hutchins when the accused will live the rest of their lives with the knowledge of their role in the tragedy?