Recapping the Hearing: Alec Baldwin’s Motion to Dismiss the Indictment 5/17/24
The hearing this past Friday specifically addressed the initial Motion to Dismiss the Indictment filed by Baldwin on March 14, 2024. This is the MTD directly challenging the grand jury proceeding and what special prosecutor Kari Morrissey allegedly did or failed to do at grand jury.
I’ve watched this hearing about three times now for this recap. It’s been a painful few days. I also reviewed Herrera v. Sanchez (2014-NMSC-018, 328 P.3d 1176) which Judge Mary Marlowe Sommer and the parties reference often. Morrissey seems to think the NM Supreme Court opinion in this case is strictly limited to when targets testify. I’m with the judge and Baldwin’s counsel on this one. Herrera actually spells out some very informative takeaways that illustrate the technicalities discussed in this hearing.
Quick Refresher on Grand Juries in New Mexico Courtesy of Herrera
Key points as stated by the NM Supreme Court in their Herrera opinion that get to the heart of the matter here:
The role of a grand jury:
To determine whether there’s probable cause to believe the target has committed a crime and to protect innocent citizens from “hasty, malicious, or arbitrary prosecutions.” (15)
Doing the above is a constitutional responsibility with the help from a prosecuting attorney who serves as an AIDE to the grand jury. (15) Because she’s not actually a prosecutor familiar with this process, Morrissey handled the grand jury like a career defense attorney in my opinion.
Challenges arising from GJ proceedings are split into two categories:
- Challenges to the quality or sufficiency of the evidence presented by the prosecutor to the GJ. This argument is limited and requires a showing of prosecutorial bad faith. Reviewing via this route is limited to what’s spelled out by statute. (12)
- Structural challenges involving the manner in which the GJ was conducted in violation of laws governing the GJ process. This is a constitutional argument and does not require a showing of bad faith.(14)
If you take anything away from this post let it be the following:
“Our courts view these challenges differently because our grand jury statutes provide structural protections that safeguard the grand jury’s ability to perform its constitutional function.” Herrera v. Sanchez
On the prosecutor preventing witnesses from answering direct and relevant questions from grand jurors:
In Herrera, the NMSC held that the prosecutor “interfered with the grand jury’s statutory duty to make an independent inquiry into the evidence” supporting probable cause. (24)
Keep all of this in mind if you dare to keep reading!
Back to Baldwin!
Just to be clear, this hearing was NOT about whether Baldwin pulled the trigger. Nor was it about him being accountable as a producer. This isn’t whining and trying to one up the system. This is a review of Morrissey’s actions because there’s an argument to be made that she did not honor the structural integrity guaranteed by the grand jury system in NM.
So what happened? The short answer is the judge did not state a decision and said she will file her order this week.
Now if you care beyond the what we don’t have a ruling yet keep reading! I am going to focus on the questions Judge Mary Marlowe Sommer asked SP Kari Morrissey and her answers in response. The line of questioning provides a glimpse into what the judge is considering for her decision.
The Cast of Characters
Baldwin’s Counsel:
Can we talk for a second about his surroundings? Is he in a makeshift mudroom/office at his Hamptons house? Is that table real or part of a fake background? Would Mrs. Nikas (assuming there is one) approve of that desk with that flooring? What is going on with that? I don’t even know if he has a house in the Hamptons but Mary Carmack-Altwies and Kari Morrissey have referred to Baldwin’s counsel as fancy big city lawyers which makes me chuckle. I’m going with it.
Warning! At times it was really hard to make out what Judge Mary was getting at between all of her umms and uhhhs. Couple that with Morrissey’s perpetually defensive half sentences. This was TOUGH. I’m paraphrasing absent quotes.
Question 1: You say you went above and beyond what you were required to do by reading the target letter to the grand jury. At the very end you reminded them of the boxes (physical boxes containing Baldwins target evidence). Why didn’t you remind them of the witnesses at the time?
Why this matters: Was reading Baldwin’s letter to the GJ enough? They all had a physical copy. Did Morrissey have to take additional steps to facilitate what is statutorily required of the state?
Morrissey’s Answer: They had the targets alert letter in their hands. Morrissey says I know for a fact they reviewed it you can see it on the transcript. They were actually asking about typos in it. I understood they had reviewed it. Also the clerk of the grand jury was providing them with a refreshed instruction (grand juries serve terms and naturally this happened the very last two days of this groups term).
My take: She’s not answering the questions and is trying to pin this answer on the clerk. The mention of typos and the grand jurors asking about them is something the judge raises several times.
Question 2 + followups: Judge Ellington in his order said make the witnesses readily available. In your response you say you would have made them readily available had the GRAND JURORS ASKED for them. You said if they couldn’t come in person you’d ask Judge Ellington for permission to have them appear by video testimony. But then you also said you would have given them interview transcripts (pre-trial or investigative interviews). How can a grand juror ask questions from a transcript?
Why this matters: Morrissey should have had Baldwin’s witnesses on hand during the GJ should the jurors have any questions for them. This includes key witnesses such as Joel Souza, Dave Halls, and Sarah Zachry who were present on set.
Morrissey’s Answer: Some of what Nikas wanted to present was directly from the interviews. He provided to the court these exhibits that were part of the sheriff’s report. Argues we have audio recordings we don’t need to bring someone in from another state if we have those recordings (prosecutors out there will beg to differ). She mentioned this to Judge Ellington who said that’s a possibility. She didn’t actually do anything beyond that.
Judge Mary asks a followup question. Morrissey goes into the specific witnesses and how she could get them there if they were needed. Still. This does not equate to having them available. She says she generally reached out to these people but didn’t make arrangements for their availability.
Morrissey says she didn’t speak to Halls or his attorney because his attorney (LISA TORRACO) is “notoriously” hard to get ahold of. Hm. I’m not buying Morrissey’s response.
My take: The GJ judge said HAVE THE WITNESSES AVAILABLE. Instead, Morrissey allegedly decided audio recordings would answer any questions. At the very least she should have reached out to the defense witnesses and/or their counsel. If they didn’t respond note that for the record. She had a duty to reach out to them and did not which is a problem.
Highlight quote:
“I was trying to come up with ways of…um…presenting some of the testimony…”
No. You follow the law. PERIOD.
Clearly I’m getting a bit heated. Time for a laugh!
Question 3: Regarding video testimony with the defense witnesses how would you have set that up? Judge Mary goes on to say: “Common sense tells me you should have reached out ahead of time.”
Why this matters: Similar to the above. It is the state’s responsibility to sort out these logistics for GJ. Some DA’s offices have victim witness coordinators who handle these details. I guess DA MCA didn’t consider this when requesting extra funding to prosecute this case?
Morrissey’s Answer: Oh I agree with you. She then goes through the seven witnesses. Somewhat repetetive. She didn’t reach out to Ryan Smith who was a producer on Rust. Hancock was there so of course the grand jury was free to ask her any questions they wanted. This is important.
My take: Again, Morrissey saying she’s sure she could have gotten the witnesses there quickly if necessary does not equate to actually taking the steps to have them available. The above comes across as directing the grand jurors to ask their questions of specific witnesses. Not freely which could be considered crossing the line.
Question 4: After you read the target letter to the grand jury you said “we have witnesses available now” you emphasized in your tone NOW. So when they were saying they saw typos, did you not feel, as an aide to the grand jury, that you could get them there. That’s why I mentioned the boxes. You told them you have the boxes (of evidence) there but not the witnesses. You say it wasn’t your duty to do so, do you stand by that?
Why this matters: Honestly this was some serious word salad on Judge Mary’s part. Lots of ummms and uhhhhs and partial thoughts. I think her bottom line is reiterating her prior questions as to why didn’t Morrissey simply say to the grand jury I can get the witnesses here if you need them. She wants to make sure she’s understanding Morrissey’s roundabout answers.
Morrissey’s Answer: “I stand by that it’s not my duty…” said as she’s making this face:
Morrissey Answer continued: “…because the law and the case law doesn’t require me to do it but I don’t want the court to feel like there were things that we were unwilling to do…” huh? My honest belief was that the judge provided them today with the refreshed instructions about their duties. So I had no reason to believe they were confused at that point in time.
My take: Morrissey is doing what defense attorneys do best! Deflect! Now she’s trying to pin it on the grand jury judge saying because Judge Ellington did that I didn’t believe it was necessary. Then she goes back to Ellington’s clerk being on the 1/11/24 call along with several court employees. While some prosecutorial procedures might not be etched in stone, they are passed down and adopted by prosecutors daily as part of their job. It’s assumed XYZ will happen because of the very nature of their role as a prosecutor on behalf of the state. It takes time to learn these things. As Morrissey continues to make excuses she continues to insult prosecutors who do this job every single day. Not just for a year and a half temporary gig on a high profile case.
This is more of a note to myself: There’s been leaks over the last year and a half on Reddit about people knowing for certain when Baldwin would be charged etc. Like specific dates. The users usually delete themselves and their threads after a few days. Hmmm.
Question 5: On asking questions of witnesses. More ummm uhhhs. Looking at the transcript and case law. I think Judge Mary is trying to say Morrissey you say in one instance the Herrera case doesn’t apply because the facts are different and then you say you came well within Herrera. So basically you can’t have it both ways. Asks how Morrissey is interpreting Herrera.
Why this is important: You can’t in one instance say Case X doesn’t apply here because it’s different while also arguing down the line you satisfied what is required by Case X. The distinctions need to be clear. I read Herrera and feel Morrissey is unnecessarily placing importance on the Petitioner in that case being the target. This is exactly what the book smart students tried to get away with in law school. Focus on the first page or two of facts while mostly ignoring the discussion by the court. They often BSed their way through questions. Anyways! The NMSC opinion in Herrera extends beyond those limited circumstances.
Morrissey’s Answer: Judge when we’re looking at and distinguishing cases and the facts of the case that’s what we look at (LOL I’m sure Judge Mary appreciated that reminder!) The target has a legal right to testify. She goes into a bit about how she thinks the court of appeals would handle this case and how she wanted the grand jury to get accurate information. “I had concerns a police detective wasn’t going to give accurate information” — this is in reference to her cutting Hancock off when grand jurors asked her questions about safety protocols on movie sets. Morrissey says this isn’t bad faith just her wanting to get the GJ accurate information.
My take: This is entertaining. It’s not her job to say what’s accurate and what isn’t at grand jury. She’s trying to make it a sufficiency argument while it seems pretty clear to me it’s a structural argument. She’s hyperfocused on bad faith required for sufficiency challenges. So much so she’s ignoring the structural arguments she should be making. Had she actually responded appropriately to Baldwin’s MTD she’d have a better understanding of the distinction between the two.
Judge Mary Follow-up: Disagrees with Morrissey on the bottom line of Herrera. Says it’s not specifically about the target being involved; rather, it’s about grand jurors being able to ask questions without interference. Puts on her spectacles…
Judge Mary continued: She starts reading the Herrera appellate decision with vigor. “By preventing someone from answering a direct relevant question from a grand juror the prosecuting attorney interfered with the grand jury’s statutory duty to make an independent inquiry.” Yes! Oh snap now the judge says actually Hancock was allowed to answer some questions about the firearm. She then reads questions asked from the transcript.
Note: I’m going to separate the following into a new question because I feel it’s important. We’re around the one hour 55 minute mark if the two people still reading this are following along!
Question 6: The first time you interrupt a juror is with Hancock. One of the jurors asks is the bottom line that Hannah and Halls were responsible for checking the gun. You (Morrissey) did NOT let her answer that question. You said we’re going to have another witness who will address that. We have an expert who works on movie sets and he’s going to answer those questions for you. My question is she was the lead investigator. Her testimony shows she could have answered that. AND YOU WOULD NOT LET THE GRAND JUROR GET THE QUESTION (answer) FROM MS. HANCOCK. Why is that not what Herrera says you can’t do?
Why this is important: I agree a million percent with Judge Mary. Morrissey isn’t familiar with the rules of grand jury. It’s that simple. She could be the best defense attorney out there but that doesn’t translate to knowing the rules and procedures prosecutors must follow at grand jury.
Morrissey’s Answer: Sooo. What Herrera…in my reading of Herrera…I did not prevent the grand jury from getting the answers to the questions. Something about the witness with the most experience. My concern was that Hancock didn’t understand or recall what she had been told because so much time had passed.
My take: First, so much time has passed because the SFSO and DA’s office cumulatively screwed up so many times on this case I’ve lost count. Starting with the moment the Santa Fe Sheriff’s Office put the yellow crime scene tape in the wrong spot and failed to include THE PROP TRUCK WHERE THE GUNS WERE STORED INSIDE THE CRIME TAPE.
You know that part in Proud Mary when Tina Turner flips the switch and absolutely kills it? This is when Judge Mary Marlowe Sommer officially became Judge Mary in my eyes:
Question 7: Again Judge Mary reads from the GJ transcript portions where Morrissey is contradicting herself. Morrissey interrupts a question to Connor Rice (the “investigator” who replaced Robert Shilling as state’s investigator) about Sarah Zachry being Hannah’s supervisor. You interrupt her (meaning the grand juror) saying “I don’t know if he’s familiar with that” then suggest “we have a witness sitting out there who might be able to answer it.” Says we can bring that witness back. The juror says “my biggest part of the question is…” about procuring firearms (Seth Kenney ANYONE?) Judge Mary reads more from the transcript and says you let him (Rice) answer some questions but not others. Why are you telling the witnesses they can’t answer the questions instead of letting THEM say they can’t answer the questions?
Why this matters: YIKES ALERT YIKES ALERT NOT GOOD! This implies Morrissey was picking and choosing which line of questions witnesses should answer and deflecting the questions to other witnesses who may or may not actually address the question at a later time. Grand jurors can get intimidated and feel uncomfortable repeating questions.
Morrissey’s Answer: Says Carpenter ultimately answered the juror’s questions and everything he said was absolutely accurate about film set safety.
My take: Again, Morrissey seems to be focusing on a sufficiency challenge instead of defending the structural arguments the judge is getting at. Morrissey didn’t adhere to consistent reasoning across the board which matters in a grand jury setting.
Question 8: About Bryan Carpenter. Judge Mary reads the NM rule on grand jury proceedings. Specifically the part about instructions given to the GJ. “The prosecuting attorney shall provide the grand jury with other instructions that are necessary to the fair consideration by the grand jury of the issues presented.” You relied on Carpenter a lot for this kind of testimony. You have Mr. Haag (firearm expert) in there. Why didn’t you read the GJ the credibility instruction about witness credibility and opinion testimony?
Why this matters: This isn’t a trial so experts like Carpenter aren’t presented to grand jurors with the rigor applied at trial. Their standing shouldn’t be as elevated as it is at trial. So providing a credibility instruction to the grand jurors could be important in this scenario to protect the state from what’s being debated in this very hearing.
Morrissey’s Answer: “It didn’t occur to me…it didn’t occur to me until this moment Your Honor.”
My take: Of course it didn’t occur to Morrissey! She’s not actually a prosecutor! Again, why did the state of New Mexico think this was ok?
Finally! That’s the end of the questions!
Not so fast! Time for some closing thoughts (jabs) by counsel.
Morrissey: I want to make clear that what we’re arguing right now about witness testimony goes to the sufficiency of the evidence.
My take: It seems fairly obvious to me after watching this three times that Judge Mary tried telling you multiple times this is a structural challenge.
Judge: So you want to answer it as sufficiency of the evidence? Because Herrera was structural. (Yep what I said!)
Morrissey: But I believe Herrera was structural because it was dealing with a jury instruction. When we’re dealing with jury instructions that’s a structural defect. In terms of sufficiency of the evidence, which is what we’re talking about right now, requires a showing of bad faith. Herrera was talking about a structural defect because it went straight to a jury instruction.
My final take: OH BOY. I could go on and breakdown the brief jabs but this is already too long. Plus it’s very clear to me that Morrissey is reading Herrera entirely wrong and wasn’t prepared. Had she written an appropriate Response to this MTD maybe she’d have a better grasp of what Herrera is really about. It’s so frustrating.
So that’s it for now as we eagerly await Judge Mary’s decision. On that note, peace!
