In an embarrassing setback, New Mexico prosecutors have had to drop the five-year enhanced sentencing provision they charged against actor Alec Baldwin, whom they’ve criminally charged in the tragic, accidental shooting of Halyna Hutchins on a movie set. 

Fox News reported this development on Monday. Baldwin, 64, will now face a maximum 18-month sentence if he is convicted on involuntary manslaughter charges in the death of Halyna, 42, who was the cinematographer on the set of "Rust," the movie they were filming. It is not disputed that Baldwin was told the gun was "cold" (i.e., not loaded with live rounds) moments before he discharged it during the rehearsal of a gunfight scene. 

As Baldwin’s lawyers pointed out, the state committed a rudimentary constitutional violation in adding the enhancement. It raises the potential sentence by five years if a defendant is found to have recklessly disregarded safety by acting "without due caution and circumspection."

ALEC BALDWIN AND GOLDIE HAWN STEP OUT IN NYC, WHILE ANNE HATHAWAY TAKES BERLIN IN SHEER LEATHER DRESS

The problem is that this enhancement did not exist in New Mexico law at the time of the shooting. The charge is thus invalid under the ex post facto principle – a defendant may be charged for conduct that was not a crime at the time it happened, or under a law enacted after-the-fact that makes a sentence for the conduct more severe. 

Prosecutors have also dismissed the sentencing enhancement, for the same reason, against Baldwin’s co-defendant, Hannah Gutierrez-Reed, 25, the so-called armorer (weapons supervisor) on the set. 

It does not speak well of the district attorney in the case, Mary Carmack-Altwies, that she seems incapable of conceding error. When Baldwin’s legal team filed their motions, Carmack-Altwies put out this statement through spokeswoman Heather Brewer: "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." 

That’s ridiculous. In virtually every major criminal case, defense lawyers file motions for various forms of relief (generally, to dismiss charges or suppress evidence). This is not done to "distract" from anything. It is due process. In addition, ethical prosecutors do not denigrate the exercise if due process rights, especially in a manner designed to prejudice the jury pool against the defendant. 

And now that it’s obvious that Carmack-Altwies made an error, as we all do from time to time, she won’t acknowledge that she was in the wrong. Instead, she had Brewer snark:

"In order to avoid further litigious distractions by Mr. Baldwin and his attorneys, the District Attorney and the special prosecutor have removed the firearm enhancement to the involuntary manslaughter charges in the death of Halyna Hutchins on the 'Rust' film set…. The prosecution's priority is securing justice, not securing billable hours for big-city attorneys."

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Again, that’s as absurd as it is unseemly. Prosecutors do not drop charges just because defense lawyers file motions (which, to repeat, is the standard procedure, not a "litigious distraction"). They will only drop a charge, in this context, because it turns out that the defense lawyers were correct that the charge is legally invalid.

The proper thing, moreover, is simply to drop the charge and move on. If a prosecutor says anything at all, it should be to fall on her sword. But far from admitting error, this prosecutor pretends that she is dismissing a charge because it would be too much of a bother to answer the defense motion – which would certainly make me angry if I were a member of the Hutchins family. And then she takes a gratuitous shot at Baldwin’s high-price "big-city attorneys" – which would certainly make me angry if I were the judge. 

I continue to believe that this accident should not be a criminal case. It should be settled in the civil justice system. On that score, we should note that Baldwin has already paid one settlement to some members of Hutchins’ family, and it now appears that others are poised to file suit. 

But this is not about whether the case should be brought criminally but about how it should be prosecuted. Incompetent and snarky is rarely a good combination, and it is an especially bad one in a prosecutor, whose job involves maintaining the court’s confidence and convincing jurors based on the strength of the state’s allegations. 

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