Why Are Prosecutors Still Coming for Alec Baldwin for His Role in the Rust Shooting? A Legal Expert Explains.

On Jan. 19, a New Mexico grand jury decided to indict actor Alec Baldwin on involuntary manslaughter charges related to the 2021 accidental fatal shooting of cinematographer Halyna Hutchins on the set of the film Rust in Santa Fe. This decision comes exactly a year after the Rust lead actor, who also served as a producer on the project, was charged by the Santa Fe County’s district attorney’s office in a case that was ultimately dismissed last April.

This latest development raises the question: What changed? The first case against Baldwin may have fallen apart, but the grand jury clearly found new evidence to be convincing enough to revive the case. In light of the indictment, SAG-AFTRA, the actors union, published a statement on Thursday that supports Baldwin and places responsibility for firearm safety not on actors but squarely upon the armorers and employers of film sets. Rust’s armorer, Hannah Gutierrez-Reed, pleaded not guilty to involuntary manslaughter and is set to stand trial in February, while the first assistant director, Dave Halls, pleaded guilty to a misdemeanor, avoiding jail time.

To make sense of it all, Slate spoke to Joshua Kastenberg, a law professor at the University of New Mexico. This conversation has been edited and condensed for clarity.

Nadira Goffe: Alec Baldwin was originally charged for involuntary manslaughter by Santa Fe County, New Mexico’s district attorney’s office exactly one year before this new indictment. That was dismissed. What has changed between then and now for him to be charged again, and for a grand jury to indict him on involuntary manslaughter charges?

Joshua Kastenberg: A couple of things have changed. The first round of prosecutors had what I would call some missteps along the way, and that included charging Mr. Baldwin with an offense that did not exist at the time that the event occurred. There’s a basic Latin phrase called ex post facto in the United States: As a matter of constitutional due process, you can’t create a crime to punish someone who committed it before the crime came into being. That’s been a constitutional right of sorts since the country was founded. I don’t believe that that was intentional because that caused the prosecution to lose quite a bit of public trust, I think, as a result.

The other thing that’s happened is, as the defense of the other person charged with the crime has developed, perhaps it’s given the new prosecutors further ideas or insight as to what actually happened on the set. And then finally, [forensic scientists] determined that the only way the gun could have fired is if a finger depressed the trigger. Mr. Baldwin at least has intimated that while the gun was cocked back, he never depressed the trigger.

Baldwin is being charged with two different types of involuntary manslaughter. Could you explain the differences?

For both of these crimes that are charged, if he’s found guilty, he can only be found guilty of one, not both. And that’s a big if. Both of them are premised on the idea that someone either acted with reckless disregard for the consequences generally, or that they failed a basic duty of care, and that rose to the level of a crime. These crimes are really hard to prove. The reason they’re really hard to prove to a jury is not because they didn’t occur—it’s easy to prove a death occurred in this case because everybody agrees it did. What makes it difficult is: When does a tort case, a personal injury type case, become a crime? Every day, human beings get behind the wheel of a car when they’re too tired to drive. They walk on the street without paying attention. They play Frisbee in a park while picnickers are sitting by. All of those could rise to the level, in theory, of a crime, but more often than not, they’re a tort case. What makes firearms different is that they’re a deadly weapon.

And so both sides have strength to their case. The prosecution’s strength is that, while Mr. Baldwin was doing something perfectly legal, he had a deadly weapon in his hand. And every person who handled the deadly weapon—from the armorer, Hannah Gutierrez, to Baldwin, who had his hand on the weapon—had an independent duty to assure that the gun was either inoperable, it was empty, or it was locked. That is basic firearm safety.

What are the strengths for the defense?

For the defense, I think the fact that the movie set as a whole had been examined and cited for some safety violations, and that there was an intermixing of dummy ammunition and live ammunition; that creates confusion that may actually play into Baldwin’s defense rather well. Finally, what I’d say is, if Baldwin’s words come out or if he decides to take the stand, he could make a sympathetic witness. And because he didn’t mean to have this happen, I could see that resulting in an acquittal. You need 12 jurors to independently conclude that he’s guilty beyond a reasonable doubt. You need that unanimous jury. It’s not an impossible mountain, but it’s a really tough mountain to climb in a case like this.

Let’s talk about the gun. As far as I understand it, this is the biggest discrepancy between the information that we had before and the information that we have now, which spurred on the second indictment. Baldwin alleges he never pulled the trigger on the gun, but it still fired. However, further testing—which required a reconstruction of the gun, which was damaged during initial FBI testings—suggested that he would have had to pull the trigger for it to go off. How much of a role is that reconstruction element going to play in Baldwin’s defense?

I think that, while the evidence comes in, and while it could be quite strong, it’s also not impenetrable.

New Mexico has a sizable number of gun owners, maybe one of the most per capita of legal gun owners. I don’t know how that will play out in the jury. I can tell you that if there are retired police officers, if there are former military members, if there are people who spend a lot of time on a firing range as a hobby, they’re likely going to think about this in terms of that duty. If you have someone who occasionally goes out and fires a gun off for fun, it’s hard to know what they’re going to think about it. I mean, even my own comment on this is shaped by 24 years of being in the military in one capacity or the other: You never, ever, ever point a gun out from its downward position without making sure that the bullet isn’t in the chamber and the safety is on. So I look at that as a strength for the prosecution.

Earlier, you theorized that the way the defense argued for some of the other people charged in the case might’ve given the prosecution some more ideas. What ideas might those be?

For example, we know that there was a firearms training, a brief gun safety training, and there’s been some discussion about whether Baldwin did not attend that. That might be fleshed out by the armorer’s defense, if the armorer becomes a witness for the prosecution, by pointing the finger and saying, Look, he knew he had a duty to attend this and this is what he would’ve learned had he gone.

Another one is: Does it matter whether he was acting in his capacity as an actor or as a producer or director? My first thought about that is no, but if it becomes admissible to the jury or if the defense brings that in, I can imagine that the armorer is going to testify or at least get out there that he has an overall duty for the entire set. And, knowing that the set itself had been alleged to have not been in a safe condition, and that blanks and live ammunition had been mixed, I could see that helping the prosecution out. If you’re talking about overall safety responsibilities, if it becomes a factor in the trial.

Whether or not Baldwin pulled the trigger, how relevant is that? It doesn’t get at the central question many are wondering, which is: If he was explicitly told that the gun didn’t have live ammunition in it, shouldn’t his pulling the trigger, or not pulling the trigger, not have mattered?

It’s a huge issue to me. If the jury concludes he pulled the trigger, then it’s easier for them to conclude that he failed to exercise the gun in a safe manner and that the firing of the gun was eminently foreseeable in that unsafe manner. I guess I could put it to you this way: If he didn’t pull the trigger and he was merely picking up something that was inherently unsafe on its own, then he’s absolved of the crime, because it’s assumed that if you keep your hand off of the trigger, then you can safely pick a gun up without it firing.

If you rent a car, there’s this kind of safety thing that you’re supposed to go through where you’re supposed to test the brakes and do a look around the entire vehicle to make sure things are working. A lot of us don’t, and I’m certainly one of them who has let it lapse; it’s just kind of assumed that everything will work. But let’s say you drive the car off the lot, and you didn’t do the testing of it, and you’re on the freeway and the brakes fail—they never worked well to begin with. You have some liability there. It doesn’t all fall on the rental company. I draw that analogy in this particular case because, if the gun was not as a person would expect an ordinary gun to be, meaning that the trigger had to be depressed and fired on its own, then Baldwin is no more guilty than I would be if I rented a car that was unsafe to drive, but I didn’t know it at the time, and I followed the rest of the rules.

This is not a black-and-white issue because, as I teach my students, human memory is fallible. It could be possible that no one is lying and that they believe what they say is true, which is why the National Transportation Safety Board doesn’t believe eyewitness accounts of train wrecks and plane crashes and the like, because they’re all over the map. And so what you have is a very technical, factual view of the weapon itself in a way that, if it’s true, fits into either of the current prosecution’s two theories of the case.

Then I think the question a lot of people would have is: What is the point of an armorer anyway? The understanding on movie sets is that it is an armorer’s job to ensure the safety of the firearms on set. So if I, an actor, have to be an expert on gun safety myself, then why hire an armorer or an expert on gun safety?

I don’t have an answer for that because I’m not an expert on movies and television production. The only analogy that I can draw is a military analogy or a police analogy. The police have armorers, of course; the Navy, Marine Corps, Coast Guard have armorers. That doesn’t absolve the individuals who handle weapons of any liability. In theory, it’s another level of safety. Maybe that’s one of the reasons you have an armorer in addition to that extra safety standard.

I talked to an entertainment lawyer about the first indictment, and he suggested that that’s not the understood standard on Hollywood sets. Around the time of the first indictment, almost everyone in Hollywood said that an actor’s job is not to be a firearms or weapons expert. Could Baldwin’s defense make the case that whatever understanding there is about who’s supposed to know what about firearms in other circumstances, there’s a different understanding on a movie set?

A movie set is still governed by law of New Mexico, and there’s no exception to movie sets.

You mentioned that New Mexico has a high level of gun ownership, which could impact a jury’s feelings about the case. Is there anything else specific to New Mexico or New Mexican law that would impact this case?

No. New Mexico’s criminal code is very similar to California’s and Colorado’s. There’s nothing in this area of law that’s unique. We have laws about misbranding cattle because we’re a rural and ranching state, too. That might make someone from Massachusetts say, Really, you do that still? But this is a standard common law crime that you would see in any state.

Will the fact that this is a grand jury case affect Baldwin’s chances negatively?

I’ve come to the conclusion that it really doesn’t. The grand jury gets to consider evidence under the hearsay rules that wouldn’t be able to come in the same manner in a trial, and I really don’t think one translates to the other. What it does make happen is it depoliticizes this and it makes it harder to make the argument to the general public that the only reason Baldwin is being brought to trial is for someone’s election chances. The one thing I’d say that a grand jury might be helpful on, but not in this case, is it might push a defendant and a DA into making a plea agreement. But I don’t think there’s going to be a plea agreement in this case.

To some, this may feel like excessive punishment for Baldwin, who seems genuinely torn up about the results of an accident. But is it? How should we read this situation?

There’s a narrative in our country that there are two or three systems of justice. There’s a justice system for the very wealthy, for the powerful, and then there’s a justice system for the other 99 percent of us. I think the prosecution is sort of damned if they do, damned if they don’t. If they didn’t proceed to a grand jury, it would look like a very wealthy and powerful celebrity—who has media power, at least—would be getting away with something. If they bring him to trial, which they’re doing, it makes it look politically driven, that they’re going after him because of who he is.

But I think that the DA, and every district attorney in the state of New Mexico, may be wondering, If I don’t bring this case to trial, can I bring the next case to trial that has a similar feature to it? What am I going to do when someone has a backyard Fourth of July party and they fire a gun in the air and the bullet goes down with the same velocity as it comes up and it kills someone? Am I going to let that one go? I think that that’s a fair question to ask if you’re a DA. He’s going to trial. That’s something that every citizen that sets foot in this state or any other state makes themselves amenable to—the criminal law of that state. And he did. It’s a tough one. There’s no statement out there made by law enforcement or made by the DA that would openly suggest that Baldwin is going to trial because of who he is.

Baldwin’s public past has not been so pretty. Last fall, NBC News reported: “A source familiar with the case said the special prosecutors have had discussions in which they said they hope the trial will ‘humble’ Baldwin, specifically citing his run-ins with paparazzi and public comments that weren’t about the case. The source added that the intention is for it to be a ‘teachable moment’ for Baldwin.” What do you make of that quote?

I’m not sure how any of that information—like, let’s say that Baldwin lost his cool and took a swing at a journalist or someone just looking in at him—would come into evidence. I suppose the defense could open the door for that. But I don’t think it would come into evidence from the get-go in the prosecutor’s case because it’s really not relevant to the nature of this charge.

What could come into evidence is if there were similar instances where Baldwin had been known to have acted in a careless or reckless manner on set and had been admonished for doing that, or had been put on notice for doing that. If you have that kind of evidence, it’s really powerful evidence.

If he is tried and acquitted, could he be tried again?

No, that’s double jeopardy. But he’s still subject to a lawsuit. That’s inevitable, that he’s going to be sued.

In your estimation, what is this looking like for Baldwin? 

Well, if I were ever defending a celebrity or a powerful individual, one thing I would say to them is, throughout the trial—and this includes even before the trial in the public eye—especially if you’re going to testify, you have to testify as who you are. That means no arrogance, don’t let the prosecution bait you, don’t try to act your way out of this with fake tears and the like. Be a human being on the stand. For some people, it’s very hard to do because they live their life being served by the public, and juries don’t like that. They see through it. For that to work for him in a trial, he has to look like an ordinary human being who is regretful over his role in this. That may not be easy to do.

That sounds difficult because he has to appear regretful, but not so regretful that people might think he’s just putting it on.

Exactly. And so what does this look like for him? He has personal homework to do to ensure the best chance of having an acquittal. Another thing is, we live in an age of not just social media, but unbelievable cruelty. I think they have to find a way to filter that out from him and just not let it affect his existence in the trial. That’s not easy to do at all, because I’m sure the knives are out for him—the knives are out for him in political ways, and they’re out for him in Hollywood. I have no doubt that, based on his personality, there are people champing at the bit hoping he gets convicted. In a criminal trial, being a defendant is not easy. It’s difficult on anybody, and I think that’s what it looks like for him. It’s a life of difficulty.