Defense lawyers say Baldwin case at critical point

Alec Baldwin is facing a period of critical importance, according to defense experts not involved in the case, as the investigation is proceeding and prosecutors are beginning to consider charges regarding the shooting death of the cinematographer and wounding of the director on the actor's movie set in October.

"This period of time before charges are filed is of critical importance when a defense attorney would like to help persuade a prosecutor not to file charges," said Shawn E. Holley of Kinsella Weitzman Iser Kump Holley LLP. "The only time a prosecutor ethically is supposed to file charges is if they believe that criminal conduct occurred and they can prove it beyond a reasonable doubt. What I'm doing during this time is culling together as much information as I can to weigh against the DA reaching that threshold."

Holley, who has represented high profile clients such as Kanye West and was on O.J. Simpson's defense team, explained that once she gathers all pertinent information, including witness testimony and case law precedent, she presents the information to the district attorney's office.

In Baldwin's case, she said a major focus of her argument against filing charges would be providing the DA with information on the firearm protocols on the New Mexico movie set and making the case that the responsibility to ensure safety fell onto others on set, not the actor and co-producer.

Los Angeles criminal defense attorney Richard D. Kaplan of Kaplan Marino PC agreed that investigative work is crucial to helping clients avoid charges.

"We want to be proactive for our client. ... Part of that is factually what occurred and the other is, 'Here's who our client is. Here's their history.' This character evidence, some of that may be admissible in trial or not, but really you just want to humanize your client in a situation like this," he explained.

"On an involuntary manslaughter at the end of it, it may not even be a case in which somebody is going to go to jail. 'And so does the prosecution really want to go through all this for what in essence was an accident?' would be my strategy," Kaplan said, "that this was an awful accident. It's tragic. These people have been traumatized as it is. This doesn't do anything for the victims. They're going to get theirs civilly."

El Dorado County District Attorney Vern Pierson said although all the specific facts of the case have not been released to the public, in his opinion prosecutors are most likely looking into criminal negligence charges against individuals involved in the shooting, focusing on how live ammunition got on the set.

"It's hard to understand, as someone who's been around firearms most of my life, how there is live ammunition on a set the way that it has been described, so we talk about criminal negligence in terms of that," Pierson said. "But I would also add that because this investigation is ongoing, it's entirely possible that there was something that was done that was intentional."

Baldwin has stated he never pulled the trigger and was told by crew members that the gun was "cold."

Pierson said he was unsure of the arguments that the actor cannot be held responsible on the basis it was not his job to ensure the gun was unloaded given the actor was also the film's co-producer.

"The producer is the person who hires the people who are making those decisions and it's my understanding, and it has been pretty widely reported, there were a series of incidents that had taken place prior to this one involving firearms either being discharged or being mishandled," Pierson said, adding the actor could still be found responsible.

Experts agreed that the question of how live ammunition was brought onto the set will be crucial in terms of criminal negligence charges possibly being filed.

Earlier this month, Baldwin stated in an interview on ABC: "I've been told by people that are in the know, in terms of even inside the state, that it is highly unlikely that I would be charged with anything criminally."

Commenting on that, criminal defense attorney Matthew D. Murphy of El Segundo said, "Somewhere there's a criminal defense lawyer pulling his hair out at what Alec Baldwin has said after this incident."

Murphy, a former Orange County senior deputy district attorney, added that the case is still being investigated and tactically these types of comments "tend to fire up investigators and prosecutors" and "increase the likelihood that somebody is going to take a run at them, exponentially."

Murphy said he doubts any attorneys would have told Baldwin that he is unlikely to face criminal charges or encourage that statement to be made publicly based on the fact the investigation is still pending. He said he would not be surprised Baldwin was advised not to do the interview.

Murphy said his defense strategy would focus on ensuring the client did not make any more statements to the media, citing concerns that any statement could potentially be admissible if the case were charged and went to trial.

Kaplan expressed similar concerns, "Celebrity clients are used to always being out there. In a criminal case, you want to sit back and for your clients to make as few statements as possible. ... The more statements you make, the more likely you can be impeached and it's just as simple as that. If there's a trial at some point your flexibility is diminished."

Holley agreed in part, stating that any good criminal defense lawyer wants most of all for their clients to not speak, but said she understood why Baldwin felt compelled to participate in the televised interview.

"He also has a reputation, image and brand. There's all sorts of people saying negative things about him and ascribing some sort of malfeasance, so he wants to correct the record and let people know how he feels and what he thinks," she said. "I do think that it makes a difference in almost like an esoteric sense when someone speaks out and they do so in a way that is compelling. It can shift the way people think about him and that includes the DA."

Pierson disagreed, stating in his opinion the interview was overall tone deaf as it related to the victims' families and said it surprised him the actor would agree to the interview during a pending investigation.

"I don't understand it, but again, we don't know where the investigation will lead and what all the specific facts are that are going to come out of it," Pierson said. "There could be facts out there that would justify that type of decision."

Since the shooting on Oct. 21 that wounded director Joel Souza and killed cinematographer Halyna Hutchins, Baldwin has retained Aaron S. Dyer as his defense counsel for any resultant civil litigation. Based in Los Angeles, Dyer co-chairs the corporate investigations and white collar defense team at Pillsbury Winthrop Shaw Pittman LLP.

No attorney has been identified as criminal defense counsel for Baldwin.

Shortly after the actor's TV remarks that he most likely will not face criminal charges, District Attorney Mary Carmack-Altwies for New Mexico's 1st Judicial District said, "Everyone involved in the handling and use of firearms on the set had a duty to behave in a manner such that the safety of others was protected, and it appears that certain actions and inactions contributed to this outcome. Once I have had the opportunity to review the complete investigation, certain individuals may be criminally culpable for his/her actions and/inactions."

On Dec. 17 a search warrant was issued for the actor's cellphone after sheriff's investigators had previously asked Baldwin to hand over his phone.

"We are confident that the evidence will show that Mr. Baldwin is not responsible civilly or criminally for what occurred on October 21, and he continues to cooperate with authorities," Dyer said in a statement shortly after the warrant was issued. "We proactively requested that the authorities obtain a warrant for his phone so that we could take steps to protect Mr. Baldwin's family and personal information that is clearly unrelated to the investigation. A phone contains a person's entire life, and personal information needs to be protected. While they evaluate the phone information, we hope that the authorities continue to focus on how the live rounds got on the set in the first place."

Kaplan called the move to request a warrant prudent given the amount of personal information a cellphone can contain, adding that to obtain the warrant the DA must lay out her case for the judge.

"This gives the defense a preview of the prosecution's theory of the case and helps to develop a strategy going forward," he said.

Murphy disagreed, stating that he would have most likely cooperated and handed over the phone.

"It's a legitimate area of inquiry. Any judge in the world is going to sign that warrant and they're going to get the information on the phone," he said. "I've got a couple of celebrity clients and when you have a PR aspect to it, you want to be able to say, 'We cooperated in every way.'"

Murphy added that the search warrant is routine and should not be of major concern to the defense. From a prosecutorial standpoint, the fact that Baldwin waited until investigators had a warrant to hand over the phone is not an issue either.

"I probably wouldn't factor that in as a prosecutor very much. That's him saying, 'We want you to follow the protocol' and that would never be admissible in a case," he said.