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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, January 31st,
2023. It's about 3.20 or 3.25 in the afternoon here on the east coast of the United States.
Just a few minutes ago, the district attorney
of the appropriate county, the name of the county is escaping me, in New Mexico,
where the Alec Baldwin film Rust was being filmed when one of the young producers was killed.
The district attorney in that county filed formal criminal charges against Alec Baldwin
and against the armorer, Ms. Reed Gutierrez. This begins the formal legal prosecution of the two of
them, and it's a long process in New Mexico. They're entitled to a hearing in the municipal
court at which the government will have to lay out its
evidence against them. The government then must take the case to a grand jury, which meets in
secret. That's 23 people. The government will lay out its case there. If the government loses the
preliminary hearing, that means a judge has decided that there's no crime here, then the case is over.
That is rarely the case.
I think in my entire career, twice, I threw cases out at that preliminary stage. New Jersey, where I sat as a judge, does not require that preliminary hearing and often doesn't even make it available.
You often don't even know you're being charged until the grand jury has indicted you.
New Mexico is different. Baldwin's a celebrity. There's great interest in the case. The government has already
announced they're going to file the charges. They filed them today. That means that eventually he
must surrender. I don't think they're going to lock him up or put him in an orange jumpsuit,
but he must surrender, post some sort of bail, give some sort of security that he'll return.
Then his lawyers can demand this preliminary hearing, which will be open to the public. The government will have to lay out
all the evidence that it has, much of it technical, about how the gun operated. Remember, as you're
going to hear in a minute when I play a clip from Bill Maher, at one point he denied pulling the trigger. Well, it's really impossible, impossible
for the round, the bullet, to come out of the barrel without there being adequate pressure
on the trigger, meaning somebody pulled the trigger and the gun was in his hands.
Back to the criminal procedure. Assuming the state survives the probable cause hearing,
which as I said, it almost always does. Not because there's corruption, but because they're
not going to bring a case without enough evidence to survive that hearing. Then they have to go to
a grand jury. There's no judge there, as many of you know. There's no defense counsel there. It's
just the prosecutor and her witnesses.
The witnesses testify to the grand jury and the grand jury votes. There are 23 grand jurors. If
12 vote to indict, then the defendant is indicted. Can the defendant testify? Yes. Yes. It's very
risky and very dangerous. Why is it risky and dangerous? Because the defendant will go in there
not knowing, since this meeting occurs in secret, not knowing what the other witnesses have said.
And there is no lawyer there to interrogate the defendant. There's just the prosecutor.
She's not going to help him through his case. Alec Baldwin would have to sit in a grand jury room, which is a
sort of a courtroom, but there are 23 jurors and no judge. Looks a little like an odd courtroom.
Alec Baldwin would have to sit there and tell his version of events, ignorant of what the version
of events is that the government witnesses have just told the grand jury. I was just telling my producer
that in my entire career, not as a judge, but as a lawyer, once representing people in criminal
cases, once I advised a client to testify before the grand jury. He went in there, he spilled his
guts before the grand jury. We didn't know what else the other witnesses had said. The grand
jurors believed my witness and they decided not to indict.
That is very, very unusual. I can't predict what Baldwin would do.
He's such a strong willed character. He may. I can predict what his lawyers will tell him.
I just don't go in there. But he may overrule them because the decision belongs to the defendant, not to the lawyers. Commenting on all this last night
was none other than Bill Maher in his own inimitable way.
And he raises some very interesting questions.
It's about a minute and a half long, but it's Bill Maher.
It's significant, it's profound,
and there are parts that are hilarious.
Take a listen.
Unless you think Alec Baldwin
purposely shot this cinematographer what
the are we talking about you know it's like yeah it's a horrible tragedy and then you know there
may be someone to blame whoever it was job it was to to have that gun there but i don't think it's
the actor's job no the only well there's two there's two additional things one he i think he
was a producer on the film it's not the producer's job either to check the guns.
I mean, you have to be able to delegate some things in life, no?
Well, but the only thing that he said that he didn't pull the trigger.
And the gun can't go, I mean, I don't know enough about this case,
but he said he couldn't pull the trigger.
But how does a gun go off without pulling the trigger?
That is a... That's the one thing that i was like that's a little odd right he did say that didn't he yeah what i don't know i don't know he's an actor you know i mean i just i just guard them on
a judge them on a different are they going after but are they going after him because he is a
celebrity like what is the i just think we live in a culture where someone always has to take a blame.
Nobody can ever just throw up their hands and go, oh, my God, this is a terrible tragedy.
You know, Democrats always have to say, this could never happen again, no matter how rare.
We have to spend a zillion dollars so this will never happen again.
They want a boogeyman.
And Republicans will be like, well, now they're going after your prop guns, you know.
No one can ever just be reasonable about anything.
He does make an interesting point.
Can you prosecute someone for something they did not intend to do?
Well, the short answer is it depends on what courtroom you're in.
In the federal system, with just one or two exceptions, the government must always prove intent. Interestingly, one of those exceptions is the possession of classified documents.
Another story for another time about which we've all been talking, at least since the FBI
executed a search warrant on Mar-a-Lago. That is the rare federal crime for which the government doesn't
have to prove intent. In the state system, the states can charge crimes where you don't have
to prove intent. Well, how can you punish somebody if they didn't intend something?
Well, you can punish behavior that is so reckless that it doesn't care about the value of human life. So if you have a deadly weapon in your hand and you're so reckless that you don't
check it to make sure it doesn't have a live round in it and you pull the trigger jokingly
at another person and that person dies, you intended to pull the trigger. You did not intend to kill the person. So for that reason, it's not
second-degree murder like in the case of the Memphis cops. It's a form of involuntary manslaughter.
The act was voluntary, pulling the trigger. The effect was involuntary, killing somebody.
In this case, simple involuntary manslaughter is 18 months in jail with a
presumption. If you don't have a prior conviction, as far as I know, Alec Baldwin doesn't have any
prior convictions of felonies. A felony is a crime for which the maximum penalty exceeds a year. So
we're not talking about jaywalking or spitting on the sidewalk or shoplifting. We're talking about
something serious. I don't think Alec Baldwin has anything like that in his background. So
presumably with a conviction and a sentence of 18 months, there'd be no jail time unless
the jury decides to enhance the penalty because New Mexico has this strange law, involuntary manslaughter alone,
like with an automobile or a golf club, 18 months, the presumption is no jail.
But if the involuntary manslaughter occurred with a gun, which this one did,
if the gun was an essential part of the killing, which was the case in this case,
even though Baldwin claims he didn't pull
the trigger. I'm smiling because Bill Maher is right. Baldwin's an actor and a comedian,
and he'll say all kinds of things. But my point is, if he's convicted of involuntary manslaughter
using a gun where the gun was an essential part of the killing, yes, yes, and yes. Five years,
minimum, mandatory, full five years, no time off.
That is what he's facing.
Don't know where it's going to go, but it's an interesting conversation that Bill Maher raises.
Do you have to check prop guns on sets?
Yes.
For those of you who play golf, do you have to make sure nobody's standing behind you when you swing that club,
which if it hits a person in the wrong part of their body could kill them? Answer yes.
When you back up the car, do you have to make sure no one's there? Answer yes. When you pull a trigger
on the set of a movie and you're not certain that there are blanks in there? Do you have to make sure that they're just blanks?
Answer yes. More as we get it. Judge Napolitano for judging freedom.