Alec Baldwin’s Counsel Calls Out “New Revelations” in Destruction of Evidence Motion to Dismiss Reply Brief
Alec Baldwin’s counsel filed their Reply brief supporting their Motion to Dismiss Based on the State’s on Destruction of Evidence grounds on June 5. In the Reply they immediately address “new revelations” that were brought to their attention during a pre-trial interview on May 21, 2024 with State firearms expert Michael Haag. Michael Haag is the son of Lucien Haag who testified extensively at the Hannah Gutierrez trial.
Remember him?
I think the new revelations are important. I have yet to see anyone, media or otherwise, break down how on earth there are new revelations a month before trial. The defense emphasizes that the government’s case relies on the assertion that Baldwin pulled the trigger while simultaneously depriving him of the very evidence to refute that allegation. The State failed to document the internal compartments of the firearm that show signs of possible modifications before ordering the destructive FBI testing.
As a disclosure I don’t have any special training or experience with firearms. So just doing my best here to interpret the legal side of things. If you’re reading this and do have firearms experience feel free to comment.
TLDR Summary of the Destruction of Evidence Motion to Dismiss
The bottom line argument the defense makes in this Motion to Dismiss the Indictment is that critical parts of the firearm designed to prevent an accidental discharge all show signs of modification (toolmarks) making accidental discharge more likely. They argue these signs of modification were present before the FBI conducted their destructive testing and these preexisting marks might have contributed to the fatal shooting of Halyna Hutchins on October 21, 2021. Further, the State’s own experts essentially admit this fact.
The State (SFSO, crime lab, DA’s office) never fully investigated or documented the internal components of the gun as it existed on October 21 before sending it off to the FBI. There’s lots of finger pointing by the state who are ultimately trying to blame their mishandling of evidence and ignorance of constitutional protections on the FBI.
In my opinion, this motion highlights the multitude of errors made by the SFSO and Detective Hancock specifically. At the time of the Halyna’s tragic death, Hancock had only been a deputy for a few years since the academy. She had even less experience as a detective. I could seriously make an entire post documenting all of the mistakes she made. Wouldn’t that be fun?!?!
Moving on to the New Revelations!
I am not going to spend much time writing about the FBI report as that is not the primary focus of this brief. Instead, the focus is on pre-existing toolmarks, possible modifications, and these so called new revelations after the FBI partially destroyed the firearm.
As a reminder: the FBI firearm testing was completed and submitted back in July 2022. Baldwin’s counsel could not examine the firearm until he was formally charged. The defense firearms expert was first permitted to examine the firearm in April 2023 at the SFSO. This is when the possible modifications were first discovered and the first set of charges were dropped against Baldwin.
The “new revelations” center around the Supplemental Reports issued by State firearms experts Lucien and Michael Haag following a follow-up examination requested by Special Prosecutor Kari Morrissey back in August 2023.
The Haag’s ultimately admit there are some weird marks on the firearm and it’s unlikely that they came from the FBI testing. AKA they may have been on the weapon when Halyna was shot and killed but no one in New Mexico paid that any attention because they were lazy and set on “disproving” Baldwin.
Here’s the text of the Defense Reply we’re concerned with here:
Refresher of the Haags Involvement and Reports
On July 3, 2023 the father and son expert team took possession of 52 physical items of evidence. This was several months after Baldwin’s charges were initially dropped by the prosecution and a year after the completion of the FBI report. Notably, the Baldwin firearm was inoperative when they took possession of it due to the damage sustained during FBI testing (more on that below). To be clear: this was a supplemental examination conducted by experts hired by the state. The evidence wasn’t sent back to the FBI.
From a prosecution perspective there were two goals in bringing on the Haags as experts. First, to independently state that the damage done to the firearm by the FBI doesn’t change or weaken the State’s case. Secondly, to disassemble the firearm to see if there was anything wrong with it prior to FBI testing (obviously done after the fact because the Santa Fe Sheriff’s Office didn’t do their job before sending the weapon off to the FBI).
The purpose of their initial examination per Lucien Haag:
To avoid any confusion, there are three Haag Reports compiled back in August 2023:
1. Initial Haag Report — Lucien Haag — Dated 8/2/23 based on examination done July 2023.
2. Supplemental Haag Report 1— Dated 8/26/23 based on supplemental firearm examination conducted on 8/24.
3. Supplemental Haag Report 2— Dated 8/31/23 an enhanced version of supp report above. Defense wasn’t made aware of this updated version until late May 2024 during a pre-trial interview with Michael Haag.
The follow-up examination was ordered by Special Prosecutor Kari Morrissey in August 2023 specifically to “evaluate the damaged evidence hammer interacting with an undamaged (replacement) trigger/sear.” The firearm was disassembled and a replacement trigger and new cylinder stop latch were installed to examine function and behavior of the full-c!ck position. (I don’t want to set off some filter typing that word lol).
The problem here? It appears the State only disclosed the First Supplemental Haag Report dated 8/26/23 to Baldwin’s counsel and not the one dated 8/31/23. There’s significant differences between the two supplemental reports which, in my opinion, strengthen the due process arguments the defense makes in this specific motion to dismiss based on destruction of evidence. The defense not having the second supp report is a problem.
8/26/23 Supplemental Report vs. 8/31/23 Supplemental Report
The 8/31/23 version is clearly more favorable to the defense than the 8/26/23 version that was shared with them. I compared the two side by side line by line to find the differences:
- There are unexplained toolmarks on the working surface and sides of the firearm that aren’t consistent with expected, regular toolmarks when compared to exemplars. Specifically, there are “irregular, off-axis or diagonal toolmarks of an unknown origin” on the firearm that killed Halyna. Below is a comparison of that gun (top) compared to what it’s supposed to look like (bottom).
The Haags conclude the marks on the gun that killed Halyna are unlikely to have been a result of FBI testing thereby implying these marks of unknown origin were present on the day Halyna was killed.
You know who has tools to modify weapons and ammo per the evidence pictures we saw at Hannah’s trial? Seth Kenney. Just sayin’.
2. The marks don’t appear to be original manufacturing marks or use and abuse toolmarks. The Haags state the marks were unlikely to have had any impact on the day of the incident based on FBI trigger pull data. Still, these marks were not investigated by the state as they should have been in the weeks/months following the shooting. They were only discovered once the defense finally had the opportunity to have their own firearms expert examine the firearm in April 2023.
3. Damage to the full-c!ck notch of the evidence hammer prevents the revolver from retaining a c!cked status. The Haags conclude this is a direct result of FBI impact testing.
The Haags conclude “aggressive empirical testing” of another exemplar, along with before and after photographs, would need to be done to figure out where these marks came from. AKA more $$$ for the experts!
So ultimately we still don’t have answers regarding possible modifications made to the firearm prior to Halyna’s death. We’re still left with there’s weird marks on the internal components, we don’t know where they came from, but it’s unlikely they came from FBI testing.
So What is the Big Deal?
Why does this matter? Is it enough to dismiss the case? Judge Mary seems very set on this case going to trial so I doubt it.
Since day one Baldwin has claimed the gun just “went off” and that he didn’t pull the trigger. To an extent, this has been corroborated by others who were present in the chapel at the time of the shooting (see SFSO Report for crew interviews from those not at Hannah’s trial). People on social media incorrectly attribute the whole “I didn’t pull the trigger” statement to Baldwin’s televised interview with George Stephanopoulos on 12/2/21. This is incorrect! It’s in SFSO interviews and police reports from immediately after the shooting.
As ridiculous as not pulling the trigger may sound, the state had a duty to document and safeguard evidence possessing exculpatory value. They failed to maintain the original state of the firearm and breached their duty which leads us to the really fun stuff…
Constitutional Law Nerd Incoming!
The supplemental Haag reports and their conclusions (specifically in the 8/31 supplement) suggest potential reasonable doubt and more importantly the violation of Baldwin’s due process rights on both the federal and state levels. I am NOT of a fan of bloviating Baldwin but I AM a fan of Constitutional Law!
Much like the Motion to Dismiss the Indictment, which was denied by Judge Mary last month, exculpatory evidence is once again front and center. A reminder on what is meant by exculpatory evidence:
Federal Due Process
The defense argues Baldwin’s federal due process rights were violated for two reasons:
1. The firearm had apparent exculpatory value before it was destroyed by the FBI and is of a nature that leaves the defendant unable to obtain comparable evidence (exemplars aren’t sufficient because modification marks existed on the day of the shooting).
2. The government acted in bad faith because it approved of and did destroy evidence that is potentially useful (exculpatory standard not required).
Due Process Under New Mexico Law
Two arguments also exist under NM law:
1. The original state of the firearm was material and the destruction cause prejudice to the defendant.
2. The State acted intentionally or breached a legal duty.
There are two standards applied to determine violation of due process. I won’t get into them here but I assume they will be covered by Judge Mary during the motions hearing on 6/21. If you’re interested in the two standards refer to page five of Baldwin’s Reply brief filed on 6/5/24.
Key Arguments Quick Takes
On the state of the firearm prior to FBI testing
Defense: The FBI’s destructive testing was unnecessary when there were more appropriate options available as pointed out by the State’s experts.
State: Pre-destruction state of the firearm doesn’t matter and is “indeterminate” because Baldwin can’t produce objective evidence regarding actual signs of modification or alteration. (LOL kind of hard to do that after you destroyed parts of the firearm!)
Was exculpatory value evident prior to testing?
Defense: Yes because Baldwin repeatedly stated he did not pull the trigger and that it just went off. Other witnesses in their statements also said the gun just went off (see SFSO report). This alerted the State and put them on notice that the firearm needed to be preserved in part due to exculpatory value.
State: The State argues Baldwin needed to explicitly tell law enforcement that internal components were modified or altered. (Ummm? How would he know that? Defense experts weren’t permitted to examine the firearm until April 2023 a year after the firearm was destroyed).
Who is responsible for the screw ups involving firearm testing?
Defense: SFSO Detective Alexandra Hancock. The defense further states that “each and every FBI witness in this case has confirmed” that testing decisions rest with the “contributor” who in this case is Hancock. Hancock never requested documentation of the internal components of the gun before destructive testing.
State: The State wants to place the sole blame here on the FBI. They do not want to admit that they’ve botched yet another aspect of this case.
**Flashback to when DA Mary Carmack-Altwies was on the case and instead of addressing constitutional law arguments she deflected by insulting Baldwin’s “fancy” “big city” attorneys instead**
On the disclosure (or lack thereof) of the 8/31/23 Supplemental Haag Report
Defense: They weren’t aware of this report until Michael Haag alluded to it in a pre-trial interview on May 21, 2024. The State never shared this very important report with the defense until nine months later.
State: Morrissey says she “intended to forward it for disclosure…can see from [her] email that [she] did not.” (Baldwin Reply 11)
My thoughts on the failure to disclose directly above: This is a pretty serious error on behalf of the State. To the lay men and women out there this might seem like an understandable mistake. The thing is, especially as a prosecutor representing the state, the NM rules specifically spell out how and when material such as this report need to be disclosed. There’s really no excuse here.
I know I sound like a broken record but this is why you don’t appoint a career defense attorney to a special prosecutor position! Seasoned prosecutors likely have a procedure for everything that must be disclosed to the defense. There’s been one too many mistakes of this nature in this case. New Mexico should be embarrassed at this point.
Parting Thoughts
The government screwed up. SFSO screwed up. The DA’s office screwed up. The FBI screwed up. Why were these screw ups allowed to happen across multiple agencies? Would the outcome be the same if a more likable actor was the one behind the gun? Think about how many times this might happen on other cases in NM where defendants don’t have a team of attorneys to address these errors.
Overall, the new revelations illustrate just how critical it was to document the firearm, inside and out, prior to having the FBI conduct enhanced testing that was likely to result in the destruction of the key piece of evidence. Instead of focusing on preserving, the State and Detective Hancock focused on disproving, which honestly was inappropriate at that stage of the investigation.
DO BETTER NEW MEXICO!!!!!!
