You Will Shoot Your Eye Out

A New Mexico judge denied Alec Baldwin’s bid to drop his involuntary manslaughter charge over firearm evidence stemming from the 2021 fatal shooting on the set of “Rust” before his trial starts next month.

In their request to dismiss the indictment, Baldwin’s attorneys claimed the state “intentionally” destroyed key evidence — the firearm involved in the shooting — denying them the chance to review potentially exculpatory evidence.

Judge Mary Marlowe Sommer denied the request in an order issued on Friday, following arguments during a virtual hearing on Monday.

Baldwin’s trial is scheduled to begin with jury selection on July 9.

The actor was practicing a cross-draw in a church on the set of the Western film when the Colt .45 revolver fired a live round, fatally striking 42-year-old cinematographer Halyna Hutchins.

Baldwin, 66, who was also a producer on the film, was indicted by a grand jury on involuntary manslaughter in connection with Hutchins’ death earlier this year, after prosecutors previously dropped the charge. He pleaded not guilty.

Baldwin’s attorneys argued that the firearm is “central” to the state’s theory of guilt, but that they were denied the opportunity to examine it themselves and that FBI forensic testing that damaged the gun was unnecessary.

“They understood that this was potentially exculpatory evidence and they destroyed it anyway,” Baldwin’s attorney, John Bash, said during Monday’s hearing.

Baldwin has maintained that he did not pull the trigger of the firearm, though the FBI forensic report determined that the gun could not have been fired without pulling the trigger.

Bash argued that there’s reason to believe that further testing would show the firearm was capable of discharging without the pull of the trigger.

“The prosecution denied the criminal defendant the opportunity to see it, to test it,” Bash said. “It’s outrageous, and it requires dismissal.”

Prosecutors argued that there was no perceived exculpatory value of the firearm apparent to law enforcement following the shooting.

“The fact that this gun was unfortunately damaged during the accidental discharge testing does not deprive the defendant of the evidence that they can use effectively in cross-examining,” Erlinda Ocampo Johnson said during Monday’s hearing.

Johnson also argued there is “ample evidence” of the defendant’s guilt in this case in regards to his “reckless conduct.”

In her order denying the motion, the judge wrote that the defense failed to establish that the firearm had any apparent exculpatory value before the evidence was destroyed, and that they are still able to examine the firearm in its current condition and examine witnesses as to its functionality prior to the destructive testing. She additionally failed to find that the state acted in bad faith when the firearm was damaged during the testing.

Marlowe Sommer’s ruling comes after she denied last week another defense request to dismiss the indictment. In that motion, Baldwin’s attorneys argued that the state failed to allege a criminal offense because Baldwin had no reason to believe the gun might contain live rounds and that the manipulation of the weapon could pose a “substantial risk” to Hutchins.

In her official order denying that motion, released on Friday, Marlow Sommer wrote that whether Baldwin had a criminally negligent state of mind “is a question of fact for the jury to decide.”

The judge also denied last month another request by the defense to dismiss the indictment in which Baldwin’s attorneys argued that the prosecution engaged in “bad faith” by failing to provide the grand jury with sufficient information.

Marlowe Sommer additionally denied last week a request from the state to use immunity to compel testimony from the film’s armorer, Hannah Gutierrez, during Baldwin’s trial.

Gutierrez, 27, was found guilty of involuntary manslaughter in connection with the shooting and sentenced in April to 18 months in prison, the maximum possible, in the shooting. She appealed her conviction in May.

Prosecutors sought immunity so that her testimony could not be used against her in her appeal. At a pretrial interview in May, Gutierrez asserted her Fifth Amendment privilege against self-incrimination, prosecutors said.

In issuing her ruling, Marlowe Sommer noted that the armorer has indicated she won’t testify and that she hasn’t heard “anything that [Gutierrez] might testify to that someone else could not testify to.”

Gutierrez could still be called to testify but would speak without immunity.

Marlowe Sommer last week also allowed for the testimony at Baldwin’s trial of a “Rust” crew member who prosecutors said witnessed the on-set shooting and said he saw Baldwin pull the trigger.

Following Monday’s hearing, Baldwin’s attorneys filed another motion seeking to dismiss the indictment, alleging that the state violated its discovery obligations by delaying the disclosure of “critical evidence that is favorable to Baldwin’s defense and that fundamentally reshapes the way Baldwin would have prepared for trial.”

In a response to the motion filed Thursday, the state pushed back against the defense’s claims, saying it has “worked tirelessly to ensure that the defendant has every possible page of discovery, no matter how minuscule or immaterial,” and asked the court to deny the motion.