The “Rust” case has been a bumpy ride for prosecutors, as they have faced repeated setbacks over a series of blunders.
As a special prosecutor revived charges against Alec Baldwin on Friday, obtaining a grand jury indictment in the shooting death of cinematographer Halyna Hutchins, yet another problem emerged in a related case.
Baldwin’s co-defendant, armorer Hannah Gutierrez Reed, sought on Friday to have her case thrown out, citing the prosecutor’s mishandling of attorney-client communications.
The prosecutor, Kari Morrissey, inadvertently turned over hundreds of text messages between Gutierrez Reed and her lawyer to a key witness last July.
Gutierrez Reed is set to go on trial next month for involuntary manslaughter and evidence tampering in Santa Fe, N.M. She mistakenly loaded a live bullet into Baldwin’s gun, which then fired, killing Hutchins and wounding the film’s director, Joel Souza. Gutierrez Reed could face up to three years in prison if convicted.
Her attorney, Jason Bowles, stated in the motion that the special prosecutor had engaged in “outrageous” misconduct by disclosing the attorney-client texts to Seth Kenney, the weapons expert who supplied guns and dummy ammunition to the production.
As part of his defense at trial, Bowles plans to argue that Kenney was responsible for mixing a handful of live rounds in with hundreds of dummies. The attorney-client text messages included discussion of that strategy, which Bowles argued gave Kenney a road map to the defense.
Bowles argued that detectives never seriously investigated Kenney. According to the defense filing, Kenney has been in touch with prosecutors and the lead detective throughout the investigation, and attempted to steer the narrative of the investigation “and even whom to prosecute.”
“Mr. Kenney now knows how the defense planned to put on their case with respect to evidence connected to him and his testimony,” Bowles wrote. “Mr. Kenney is now in the best position possible to frustrate determining the truth as to how the live rounds made their way onto set… Ms. Gutierrez Reed’s ability to obtain a fair trial with an uncorrupted fact finding process is forever lost. There is no way to cure this taint aside from the dismissal of the indictment.”
Morrissey took over the case last March, after Santa Fe D.A. Mary Carmack-Altwies recused herself. As part of an independent review of the evidence, Morrissey obtained the raw data from Gutierrez Reed’s cell phone.
Gutierrez Reed and Bowles had signed a consent form early in the investigation, agreeing to have her phone searched without a warrant. The consent form did not limit the scope of the search.
But according to Bowles, he made clear in conversation with detectives that the search would be limited to items relevant to “Rust,” and would not include attorney-client communications.
Bowles received assurance from the lead investigator that “Nothing will be released whatsoever if it’s not in relation,” according to a text message attached to the motion.
Morrissey informed Bowles in an email on July 25 that she discovered that the phone data she had received two weeks earlier included attorney-client texts. once she realized that, she deleted her copy and did not review the messages, she stated.
However, by that point she had already provided the raw data to Kenney, who had requested it under the state’s open records law. She then asked Kenney to delete his copy. Kenney said he would do so, but stated that he had already sent the data to his lawyer, according to her email.
“I believe very strongly in the attorney/client privilege and will consider anything you propose to suppress the communications,” the prosecutor wrote to Bowles.
In the motion to dismiss, Bowles noted that one remedy would be to suppress Kenney’s testimony at trial. But he argued that would not solve the issue.
“This is because Mr. Kenney is an essential witness for the defense as well,” he wrote. “Suppression of his testimony altogether will further harm Ms. Gutierrez Reed.”
Other options include the recusal of the special prosecutor or the destruction of the attorney-client material. But Bowles argued that those measures would still not solve the issue with respect to Kenney.
The motion also notes that Sarah Zachry, the film’s prop master, signed a cooperation agreement with prosecutors last October. She agreed to testify at the trial in exchange for immunity from prosecution, according to the document.
The defense alleges that Zachry threw some rounds in the trash after the shooting, and speculates that she may have done so at Kenney’s direction.
A pre-trial hearing is set for next Thursday in Santa Fe.
