Guest Column: Alec Baldwin’s ‘Rust’ Prosecutors Should Do Their Talking in Court
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There’s gracefully admitting a mistake, and then there’s what the Santa Fe District Attorney’s Office did in late February: attacking Alec Baldwin’s lawyers for pointing out that one of the charges against him was unconstitutional.
The problem with the charge was clear. It was based on a sentencing enhancement enacted after the Rust shooting — an enhancement that required a minimum five-year sentence if a firearm was discharged in the commission of a felony.
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The prosecutors decided to use this updated enhancement against Mr. Baldwin. Then, for some reason, they promptly went on CNN and Fox News to talk about it, before the charge had even issued.
There was just one problem: This charge violated the Constitution’s ex post facto rule. That’s the rule that says you can’t be charged with a crime if what you did wasn’t a crime at the time you did it.
James Madison called ex post facto laws “contrary to the first principles of the social compact,” and Alexander Hamilton said they were among “the favorite and most formidable instruments of tyranny.”
At the Constitutional Convention, some of the delegates thought it was unnecessary to explicitly spell this out because ex post facto laws were so clearly invalid. They thought including an explicit prohibition would make them look stupid. Or, in 1780s speak, “proclaim that we are ignorant of the first principles of Legislation, or are constituting a government which will be so.”
So, when Mr. Baldwin’s lawyers inevitably brought this improper charge to the court’s attention, what did the DA’s Office do? They lodged a classist attack against Mr. Baldwin’s lawyers. “Another day, another motion from Alec Baldwin and his attorneys in an attempt to distract from the gross negligence and complete disregard for safety on the Rust film set that led to Halyna Hutchins’ death,” the prosecutors told the media. The prosecutors promised their “focus will always remain on ensuring that justice is served and that everyone — even celebrities with fancy attorneys — is held accountable under the law.”
Then, 10 days later, the prosecutors did what the law required, dropping the charge. They did not drop their pitchforks, though.
They told the media they were dropping the charge “to avoid further litigious distractions by Mr. Baldwin and his attorneys,” because their “priority is securing justice, not securing billable hours for big-city attorneys.” What the prosecutors didn’t tell the media was that they had written Mr. Baldwin’s lawyers eight days earlier that they “100 percent agree with your assessment on the issue,” promising to drop the charge.
The prosecutors had no choice but to agree — Mr. Baldwin’s attorneys were right. Not because they were “fancy,” but because the Constitution clearly prohibited what the prosecutors had done.
Any competent attorney — from fancy to free — would have done the exact same thing as Mr. Baldwin’s lawyers if their client was charged with a crime that didn’t exist at the time of their conduct. They’d have immediately moved to dismiss that charge. And they would have won every time.
Mr. Baldwin’s lawyers were doing nothing more than invoking a constitutional protection every one of us enjoys, including the prosecutors themselves if they ever found themselves charged with a crime.
This unfortunate episode of unprofessionalism underscores why a prosecutor’s office typically speaks through the filings and statements it makes in a court of law, not in the court of public opinion.
Petty attacks on defense lawyers for having the nerve to ask that the Constitution be followed decrease the public’s faith in the criminal justice system. They add fuel to criticism that this prosecution is more about chasing headlines based on celebrity and notoriety than pursuing justice.
Justice is not served when the government engages in PR-style spin by publicly belittling a defendant and his attorneys as “celebrities with fancy lawyers” instead of just admitting a mistake.
The people of Santa Fe will be better served if these prosecutors stick to the law and just try their case.
Kyle Clark and Andrew George are white collar criminal defense partners at Baker Botts in Washington, DC.
