Halyna Hutchins Shot With Prop Gun - Alec Baldwin indicted & Hannah Gutierrez-Reed charged, 2021 #6

[CGray123]

I think it's worth revisiting the elements of the crime with which AB is charged. Here is the pertinent portion of the statute if I understand the factual information correctly:

"Manslaughter is the unlawful killing of a human being without malice.

Involuntary manslaughter consists of manslaughter committed ... in the commission of a lawful act which might produce death ... without due caution and circumspection."

NM Stat § 30-2-3 (2020)

There is a jury instruction cited in the statute - UJI 14-220 - but I was unable to locate it online. It might help us understand better how the courts have defined the phrase "without due caution and circumspection." These words differ from the more common manslaughter standard, which seems to be "gross negligence" - meaning essentially a wanton or reckless disregard for human life. Does NM have a lower standard for this crime than other jurisdictions?

Also, the jury instruction may help us understand how the separate element of "unlawful killing" is defined for a NM jury.

Can anyone help find this instruction?

 

[mickey2942]

My opinion is that HGR should settle. Because defense for AB will lay the blame for everything squarely on her, and Halls. Halls has already taken a deal. HGR probably doesn't have a bottomless amount of money for an attorney, nor do her parents. If AB gets off, and someone is held liable for the shooting, it is going to be the person who put the bullets in the gun, HGR.

Get a plea deal, no jail or prison, and move on.

 

[Cool Cats]

My opinion is that HGR should settle. Because defense for AB will lay the blame for everything squarely on her, and Halls. Halls has already taken a deal. HGR probably doesn't have a bottomless amount of money for an attorney, nor do her parents. If AB gets off, and someone is held liable for the shooting, it is going to be the person who put the bullets in the gun, HGR.

Get a plea deal, no jail or prison, and move on.

Good point. The responsible person is the one who loaded the gun with a live round.

 

[mickey2942]

Good point. The responsible person is the one who loaded the gun with a live round.

Unless she was not given a deal. We really don't know. If I was her, my defense would be the lack of security, which, again, falls onto her. She was responsible for the gun, and left it unattended. So...I am trying to find her defense...blaming the ammunition provider doesn't work, because she was supposed to check the bullets when loading the gun. Even if labeled "dummy rounds", you are supposed to check them. Each and every time, and double check.

 

[CGray123]

My opinion is that HGR should settle. Because defense for AB will lay the blame for everything squarely on her, and Halls. Halls has already taken a deal. HGR probably doesn't have a bottomless amount of money for an attorney, nor do her parents. If AB gets off, and someone is held liable for the shooting, it is going to be the person who put the bullets in the gun, HGR.

Get a plea deal, no jail or prison, and move on.

According to previously posted articles, HGR seems to be pointing the finger at AB. She's suggesting she did what she could to assure safety in a production where it was not a priority for the producer/lead actor, the director or others with managerial responsibility and authority (which she did not have). Recognizing that AB did not have sufficient training and awareness, she claims she scheduled an hour of one-on-one training with him. Understanding that he paid more attention to his phone than to the instructions during training, she recommended that he use a plastic gun for rehearsals and that if he chose otherwise, she be called to the set.

Having now looked at the involuntary manslaughter statute, I think the outcome will depend on whether it's interpreted to impose criminal responsibility for ordinary negligence, or only for willful or reckless disregard for human life. Under the latter standard, the prosecutor will have a tough time proving the elements of the crime against HGR.

I think the prosecutor should offer her a deferred prosecution deal (probation for a year, with charges dropped if she complies with the terms) in exchange for her testimony against AB. That would give her a reason to settle, increase the chance of convicting AB, and be a more prudent use of the state's limited resources.

MOO.

 

[Marantz4250b]

The problem with this account--just my opinion--is that if it is a correct indication of the way the gun fired, why was AB able to fire it without putting so much pressure on it that it broke the internal safety mechanism?

I meant, the only way they could get it to fire without pressing the trigger was to smash the hammer until it broke.

 

[Marantz4250b]

His account was that he pulled back the hammer without pulling the trigger, released the hammer, and the weapon fired. This sequence of events was not tested by the FBI laboratory, and cannot be tested today.

AB's account is supported by the earlier accidental discharge when the prop master was loading the same gun with blanks. If the prosecution asserts that the weapon could never discharge under any circumstances unless the trigger was pulled, then they are also asserting that the prop master had to have pulled the trigger when she was loading the weapon. We'll see what she says on the stand.

The FBI test, again, did not involve a premature hammer drop with no trigger pull. It involved banging on the hammer after it was in the fully latched position. There is nothing in the publicly released material that indicates why the FBI thought this constituted a relevant test. No one to my knowledge has asserted that the hammer fell as a result of being struck.

I have analyzed my share of forensic laboratory reports and I agree with Prairie Wind that (assuming all they have is what we have seen) the FBI techs are going to be in for a rather rough ride during cross-examination. I would not be surprised if the defense emphasized the report's shortcomings because of the exaggerated claims made by the DA about its importance, in support of a "witch hunt" theme.

They tested all of those scenarios. Their report said that all of the engagement notches on the hammer were entirely functional and prevented the hammer from contacting the primer. They even said that had the hammer have fallen from around the point of the half-*advertiser censored* notch it would not have fired the gun as the cylinder by that point was not properly indexed meaning that the cartridge next in line was not yet in alignment with the barrel.

 

[Marantz4250b]

His account was that he pulled back the hammer without pulling the trigger, released the hammer, and the weapon fired. This sequence of events was not tested by the FBI laboratory, and cannot be tested today.

AB's account is supported by the earlier accidental discharge when the prop master was loading the same gun with blanks. If the prosecution asserts that the weapon could never discharge under any circumstances unless the trigger was pulled, then they are also asserting that the prop master had to have pulled the trigger when she was loading the weapon. We'll see what she says on the stand.

The FBI test, again, did not involve a premature hammer drop with no trigger pull. It involved banging on the hammer after it was in the fully latched position. There is nothing in the publicly released material that indicates why the FBI thought this constituted a relevant test. No one to my knowledge has asserted that the hammer fell as a result of being struck.

I have analyzed my share of forensic laboratory reports and I agree with Prairie Wind that (assuming all they have is what we have seen) the FBI techs are going to be in for a rather rough ride during cross-examination. I would not be surprised if the defense emphasized the report's shortcomings because of the exaggerated claims made by the DA about its importance, in support of a "witch hunt" theme.

They tested all of those scenarios. Their report said that all of the engagement notches on the hammer were entirely functional and prevented the hammer from contacting the primer. They even said that had the hammer have fallen from around the point of the half-*advertiser censored* notch it would not have fired the gun as the cylinder by that point was not properly indexed meaning that the cartridge next in line was not yet in alignment with the barrel.

 

[Marantz4250b]

IMO how this particular gun, the item in evidence, works is not as relevant because it no longer works and its functionality cannot be tested.
iME trials are about the specific evidence, not things in general. When I read the LE evidence dump more than a month ago, my concern became how the jury may react, not how revolvers work.

…’and I grew up with a Colt 45 in my house. Alec will be able to pay someone far more expert than any of us to try and raise reasonable doubt.

IMO.

It's not relevant that it no longer works. The FBI tested it and it was in proper working order when they took delivery of it. The fact that it was damaged in testing is beside the point - it DID work and WAS working at the time the shooting took place.

The whole "it all needs to get thrown out because the gun cannot be tested by the defence" is totally bogus and amounts to desperately clutching at straws, IMO. DNA evidence is regularly destroyed in testing but it doesn't get ruled inadmissible because the defence can't test it.

All MOO, obvs.

 

[Marantz4250b]

This is strange. The testing the FBI did on the gun actually changed the gun, now causing the gun to fire when cocked without pulling the trigger. Since Baldwin's team cannot test the gun using their own experts I wonder if the defense will file a Motion to get the FBI evidence tossed out?

That is, if the judge decides there is even enough evidence to proceed to trial.

‘The trigger had to have been pulled’​

An FBI forensics report said the weapon could not be fired during FBI testing of its normal functioning without pulling the trigger while the gun was cocked.

The report also noted the gun eventually malfunctioned during testing after internal parts fractured, which caused the gun to go off in the cocked position without pulling the trigger.

The prop gun was being held by Baldwin, who has maintained he did not pull the trigger.

“The FBI lab is one of the best in the world,” Carmack-Altwies told CNN. “And we absolutely believe that the trigger had to have been pulled in order for that gun to go off.”

From above link - 2nd article

Even if the FBI evidence on the gun does get tossed then does it make a difference? AB didn't check it; AB didn't do the gun safety classes; AB pointed the gun at someone without personally ensuring it was in safe working order, etc, etc. AB shot two people killing one of them because he didn't check stuff.

IMO, it would be ludicrous for the FBI evidence to be tossed out. It is a report on a weapon by one of the foremost ballistics labs on earth. The gun worked properly when they received it meaning that it could not have fired unless the trigger was pulled.

AB can pay any "expert" he likes to say otherwise but he'd better be paying a vast sum because that person's professional reputation is going to be utterly trashed afterwards!

 

[SteveS]

This is strange. The testing the FBI did on the gun actually changed the gun, now causing the gun to fire when cocked without pulling the trigger. Since Baldwin's team cannot test the gun using their own experts I wonder if the defense will file a Motion to get the FBI evidence tossed out?

That is, if the judge decides there is even enough evidence to proceed to trial.

‘The trigger had to have been pulled’​

An FBI forensics report said the weapon could not be fired during FBI testing of its normal functioning without pulling the trigger while the gun was cocked.

The report also noted the gun eventually malfunctioned during testing after internal parts fractured, which caused the gun to go off in the cocked position without pulling the trigger.

The prop gun was being held by Baldwin, who has maintained he did not pull the trigger.

“The FBI lab is one of the best in the world,” Carmack-Altwies told CNN. “And we absolutely believe that the trigger had to have been pulled in order for that gun to go off.”

From above link - 2nd article

Your questions will be answered within the trial, of course. My personal guess as to how they will be answered:
1 I believe the defense will challenge the idea that the gun was in proper working order, and point to the fact it is CURRENTLY broken. They will cite the fact they cannot test it on their own.
2 I believe the prosecution will argue that the issue is whether the gun was in proper working order when AB used it, and that the answer has already been determined by FBI labs who are the gold standard for such testing. They will further argue that it was not their intent, or fault, that the gun broke later on, and that the test they have will have to be used in absence of another test.
3 My guess is that the prosecution will win that argument, and that the test results will be admitted, unless it can be shown that FBI or prosecution intended to break the gun in order to prevent a second test.

 

[10ofRods]

It's not relevant that it no longer works. The FBI tested it and it was in proper working order when they took delivery of it. The fact that it was damaged in testing is beside the point - it DID work and WAS working at the time the shooting took place.

The whole "it all needs to get thrown out because the gun cannot be tested by the defence" is totally bogus and amounts to desperately clutching at straws, IMO. DNA evidence is regularly destroyed in testing but it doesn't get ruled inadmissible because the defence can't test it.

All MOO, obvs.

I know what you're trying to say - but we shall see. There are different rules in different states about keeping evidence out of trial if it is not equally available for testing to both sides.

That's my worry. It's not clutching at straws, there are many cases where this has happened (see the Kristin Smart case - it kept a lot of us on pins and needles). None of us is saying "it needs to be thrown out." Some of us have decades of experiencing watching pre-trial issues go forward and it remains a concern until a judge says otherwise.

Saying that some of us are "clutching at straws" by bringing up this issue (I'm not pro-defense, and I still see the issue) is not a good faith way to discuss this. In the instant when I first read that FBI document, the first thought I had was, "Oh, will the defense have a field day with this if the gun is entered into evidence or the FBI lab is the only side who can test and testify." It's not really about a piece of evidence being thrown out as much as it may be about the FBI findings being challenged.

That's my point. No amount of arguing here changes the fact that rules of evidence and case law for evidence are tricky. I don't think we have a New Mexico lawyer on this thread. And making statements about the "desperation" of the defense side is silly - so that's my rejoinder. To me, it makes no sense to accuse lawyers of deliberately and desperately manipulating circumstances or the law when preservation of evidence where ever possible is a standard (DNA is but one example).

The court will decide that - but any defense attorney worth their salt, IMO, would bring this up.

If ALL the DNA is tested before a person is arrested, that has been a problem in some cases. Sample size was too small in the Kristin Smart case - so the man who helped bury her in the backyard of his home walks free today.

Joe DeAngelo was caught because one coroner in SoCal had a hunch that he should carefully preserve some of the rape kit sample for future analysis if it went to trial. That meant no one could disagree about the prior analysis, as both defense and prosecution got a chance to have a lab run the evidence, IIRC.

And in the Kohberger case, I hope there's more DNA on the sheath (and truly believe there is, because to me that's the most likely scenario). However, if they destroyed ALL the DNA on the sheath or considerably damaged the sheath, that could be a problem.

We are fortunate that New Mexicans are familiar with guns - but not as much in Santa Fe as elsewhere in the state. There's also a goodly contingent of Alec Baldwin fans who are going to want some really good circumstantial evidence (and the way I read the 550 page LE document is that no witness, so far, has said that they actually *saw* Alec pull the trigger, only that he was manipulating the gun when it went off)

I don't think he'll take the stand (he'll want to), but he will try to sell the mysterious idea that the "gun just went off." Fortunately, NM law provides for an accidental misfire to be a fourth degree felony, which is what Alec is charged with. So hopefully, it won't matter. If I were the prosecution, I'd just use Hannah's and Dave's testimony about the gun and the fact that no one checked it for live ammo - including the person who decided to use it.

All my opinion. The American Bar Association (representing all lawyers, not just defense ones) agrees about the DNA standard (it must not be destroyed - it's bad practice):

DNA Evidence

A new set of Criminal Justice Standards on DNA Evidence approved by the ABA House of Delegates in August 2006 appears along with commentary in a publication entitled: ABA Standards for Criminal Justice: DNA Evidence, 3d ed. © 2007 .

www.americanbar.org

And it must be retained (there's more at the link below):

DNA Evidence

A new set of Criminal Justice Standards on DNA Evidence approved by the ABA House of Delegates in August 2006 appears along with commentary in a publication entitled: ABA Standards for Criminal Justice: DNA Evidence, 3d ed. © 2007 .

www.americanbar.org

So arguing that "sometimes DNA is destroyed by labs" is not the same thing as speaking about a legal recommendation (something a lawyer would advise or advice a lawyer would follow). Even the standards by which relevant forensic labs are licensed strictly require the court to be advised if there's a possibility of destroying all the DNA evidence. Not altering evidence in a manner that could be construed as prejudicial to one part is not good legal practice.

Genetic Witness

When DNA profiling was first introduced into the American legal system in 1987, it was heralded as a technology that would revolutionize law enforcement. As an investigative tool, it has lived up to much of this hype—it is regularly used to track down unknown criminals, put murderers and rapists...

www.google.com

IMO.

 

[RANCH]

Where the loss of evidence is not known during the trial, as in Chacon, supra, and the evidence is material and its absence prejudicial to the defendant, the only remedy is a new trial incorporating the lost evidence once it is found. Where the loss is known prior to trial, there are two alternatives: Exclusion of all evidence which the lost evidence might have impeached, or admission with full disclosure of the loss and its relevance and import. The choice between these alternatives must be made by the trial court, depending on its assessment of materiality and prejudice. The fundamental interest at stake is assurance that justice is done, both to the defendant and to the public.

State v. Chouinard, 96 N.M. 658, 634 P.2d 680 (1981) | Caselaw Access Project

Full text of State v. Chouinard, 96 N.M. 658, 634 P.2d 680 (1981) from the Caselaw Access Project.

cite.case.law

 

[al66pine]

I think it's worth revisiting the elements of the crime with which AB is charged. Here is the pertinent portion of the statute if I understand the factual information correctly:

"Manslaughter is the unlawful killing of a human being without malice.

Involuntary manslaughter consists of manslaughter committed ... in the commission of a lawful act which might produce death ... without due caution and circumspection."

NM Stat § 30-2-3 (2020)

There is a jury instruction cited in the statute - UJI 14-220 - but I was unable to locate it online. It might help us understand better how the courts have defined the phrase "without due caution and circumspection." These words differ from the more common manslaughter standard, which seems to be "gross negligence" - meaning essentially a wanton or reckless disregard for human life. Does NM have a lower standard for this crime than other jurisdictions?

Also, the jury instruction may help us understand how the separate element of "unlawful killing" is defined for a NM jury.

Can anyone help find this instruction?

W a quick search, not finding for free, but---

"New Mexico Criminal Laws and Rules Annotated
An essential reference tailored to criminal law practitioners with comprehensive coverage of New Mexico criminal laws and rules. Includes a handy overview of New Mexico Criminal Procedure Law Guidelines and New Mexico Uniform Criminal Jury Instructions."
Matthew Bender, pub'r.
"eBook:epub
2022 Edition
ISBN: 9781663354051
IN STOCK
Price
$92.00"

 

[Cool Cats]

Even if the FBI evidence on the gun does get tossed then does it make a difference? AB didn't check it; AB didn't do the gun safety classes; AB pointed the gun at someone without personally ensuring it was in safe working order, etc, etc. AB shot two people killing one of them because he didn't check stuff.

IMO, it would be ludicrous for the FBI evidence to be tossed out. It is a report on a weapon by one of the foremost ballistics labs on earth. The gun worked properly when they received it meaning that it could not have fired unless the trigger was pulled.

AB can pay any "expert" he likes to say otherwise but he'd better be paying a vast sum because that person's professional reputation is going to be utterly trashed afterwards!

I said:

I wonder if the defense will file a Motion to get the FBI evidence tossed out?

Motions to exclude evidence are filed all the time by the defense.

This can be done as a matter of "covering all the bases." If their client loses and appeals, the defense attorneys won't be accused of not giving a rigorous defense.

 

[Lilibet]

I know nothing about guns. But even I know that you never point a gun at anyone, and assume it isn’t loaded. Correct me if I’m wrong, but the reason for that caution is that any gun can malfunction at any time and fire. It may be unlikely, but the possibility exists, so you just don’t point a gun unless you’ve personally checked it.

So it seems to me that the bottom line is:
1) No one checked the gun to make sure it wasn’t loaded with anything dangerous…neither the armorer, the director nor the actor AB.
2) AB pointed what turned out to be a loaded gun at HH.
3) The gun went off, killing HH.
4) It really doesn’t matter whether AB did or didn’t pull the trigger. Even if the gun malfunctioned and fired without AB touching the trigger, AB is the one who pointed it at HH without ensuring it wasn’t loaded.
5) So AB’s negligence in pointing the unchecked gun cost HH her life.

If I am correct about those five points, the current condition of the gun after testing by the FBI matters little. No one has to prove whether he did or didn’t pull the trigger. All that matters is that he pointed the gun at HH, breaking a basic gun safety rule. Let me know if I’m missing something here.

If the armorer is truthful that AB blew off safety training, that’s more evidence of negligence. Although it may have been her job to insist that AB pay attention, she was clearly too young and inexperienced to stand up to him. It’s too bad she didn’t walk off the set as some had done. All she can do now is make a deal to testify against AB.
JMO

 

[al66pine]

@CGray123 Found it instructions online. Source: NM Sup Ct. site w Crim. Jury Instructions, w Use Notes, Annotations, and Committee Commentary.
Sorry for glitchy cut & paste.
__________________________________________________
NM JURY INSTRUX, CRIM. NEGLIGENCE, RECKLESSNESS

14-133. "Negligence" and "recklessness"; defined
"For you to find that the defendant [acted]
2 [recklessly] [with reckless disregard] [negligently] [was negligent] [________________________]
3 in this case, you must find that the defendant acted with willful disregard of the rights or safety of others and in a manner which endangered any person or property."

"USE NOTES
"1. For use when "negligence", "reckless", "recklessly", "knew or should have known" or similar term or phrase is an element of the crime charged. This instruction should not be given with any elements instruction which already adequately defines the concept of a defendant's criminal negligence set forth by the Supreme Court.[....]
"2. Use only applicable alternative.
"3. Set forth the term or terms used in the elements instruction (or statute if no elements instruction exists) for criminal negligence if the previous alternatives are not used in the essential elements instruction of a "criminal negligence" offense.

Committee commentary. — This instruction was taken from the definition set forth in State v. Yarborough, 1996-NMSC-068, P20, 122 N.M. 596, 930 P.2d 131 and predecessor cases. This instruction should be used when the offense involves criminal negligence and the essential elements instruction, or other instruction to be used with the essential elements instruction, does not define the term "reckless", "negligence" or similar term. See Santillanes v. State, 115 N.M. 215, 220, 849 P.2d 358, 363 (1993) citing with approval Raton v. Rice, 52 N.M. 326, 365, 199 P.2d 986, 987 (1949) (involuntary manslaughter)[...]
"When a crime is punishable as a felony, civil negligence ordinarily is an inappropriate predicate by which to define such criminal conduct.
"Various courts have defined criminal negligence in slightly different ways. This instruction simplifies and standardizes the definition of criminal negligence."

^ Source: Rule 14-133 NMRA, <Rule Set 14 - Uniform Jury Instructions — Criminal - NMOneSource.com>, retrieved on 03/13/2023

_______________________________________

NM JURY INSTRUX for INVOLUNTARY MANSLAUGHTER
("Should have known of danger" and "willful disregard of the safety for others." Does NOT use the term "Negligent" or "Reckless" in this section of instrux.)

"Part D. Involuntary Manslaughter...
14-231. Involuntary manslaughter; essential elements.
1. For you to find the defendant guilty of involuntary manslaughter [as charged in Count ________],
2.the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. __________________ (name of defendant)
__________________________ (describe defendant's act);
2. ________________________ (name of defendant) should have known of the danger involved by _____________________'s (name of defendant) actions;
3. ________________________ (name of defendant) acted with a willful disregard for the safety of others;
4. ________________________'s (name of defendant) act caused the death of _________________ (name of victim);
5. This happened in New Mexico on or about the ________ day of ______________, ________. "

See also "Use Notes," "Committee commentary," and "Annotations."

^ Source: Rule 14-231 NMRA, <Rule Set 14 - Uniform Jury Instructions — Criminal - NMOneSource.com>, retrieved on 03/13/2023.

 

[CGray123]

@CGray123 Found it instructions online. Source: NM Sup Ct. site w Crim. Jury Instructions, w Use Notes, Annotations, and Committee Commentary.
Sorry for glitchy cut & paste.
__________________________________________________
NM JURY INSTRUX, CRIM. NEGLIGENCE, RECKLESSNESS

14-133. "Negligence" and "recklessness"; defined
"For you to find that the defendant [acted]
2 [recklessly] [with reckless disregard] [negligently] [was negligent] [________________________]
3 in this case, you must find that the defendant acted with willful disregard of the rights or safety of others and in a manner which endangered any person or property."

"USE NOTES
"1. For use when "negligence", "reckless", "recklessly", "knew or should have known" or similar term or phrase is an element of the crime charged. This instruction should not be given with any elements instruction which already adequately defines the concept of a defendant's criminal negligence set forth by the Supreme Court.[....]
"2. Use only applicable alternative.
"3. Set forth the term or terms used in the elements instruction (or statute if no elements instruction exists) for criminal negligence if the previous alternatives are not used in the essential elements instruction of a "criminal negligence" offense.

Committee commentary. — This instruction was taken from the definition set forth in State v. Yarborough, 1996-NMSC-068, P20, 122 N.M. 596, 930 P.2d 131 and predecessor cases. This instruction should be used when the offense involves criminal negligence and the essential elements instruction, or other instruction to be used with the essential elements instruction, does not define the term "reckless", "negligence" or similar term. See Santillanes v. State, 115 N.M. 215, 220, 849 P.2d 358, 363 (1993) citing with approval Raton v. Rice, 52 N.M. 326, 365, 199 P.2d 986, 987 (1949) (involuntary manslaughter)[...]
"When a crime is punishable as a felony, civil negligence ordinarily is an inappropriate predicate by which to define such criminal conduct.
"Various courts have defined criminal negligence in slightly different ways. This instruction simplifies and standardizes the definition of criminal negligence."

^ Source: Rule 14-133 NMRA, <Rule Set 14 - Uniform Jury Instructions — Criminal - NMOneSource.com>, retrieved on 03/13/2023

_______________________________________

NM JURY INSTRUX for INVOLUNTARY MANSLAUGHTER
("Should have known of danger" and "willful disregard of the safety for others." Does NOT use the term "Negligent" or "Reckless" in this section of instrux.)

"Part D. Involuntary Manslaughter...
14-231. Involuntary manslaughter; essential elements.
1. For you to find the defendant guilty of involuntary manslaughter [as charged in Count ________],
2.the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. __________________ (name of defendant)
__________________________ (describe defendant's act);
2. ________________________ (name of defendant) should have known of the danger involved by _____________________'s (name of defendant) actions;
3. ________________________ (name of defendant) acted with a willful disregard for the safety of others;
4. ________________________'s (name of defendant) act caused the death of _________________ (name of victim);
5. This happened in New Mexico on or about the ________ day of ______________, ________. "

See also "Use Notes," "Committee commentary," and "Annotations."

^ Source: Rule 14-231 NMRA, <RuThanle Set 14 - Uniform Jury Instructions — Criminal - NMOneSource.com>, retrieved on 03/13/2023.

Thanks, @al66pine ! I did see this but the instruction number didn't match the statute's (14-220). However, in the press coverage the parties seem to be talking about more than simple negligence. Willful disregard for the safety of others is consistent with the standard for manslaughter in other jurisdictions I have seen.

IIRC, negligence is a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. This is pretty well established by the facts we know.

"Willful" conduct is generally described as demonstrating a stubborn determination and intention to do what one wants, regardless of the consequences. It a deliberate decision to ignore possible harm, as distinct from mere failure to exercise due care.

This standard will be hard to prove beyond a reasonable doubt. Showing that mistakes were made won't do it.

 

[CGray123]

They tested all of those scenarios. Their report said that all of the engagement notches on the hammer were entirely functional and prevented the hammer from contacting the primer. They even said that had the hammer have fallen from around the point of the half-*advertiser censored* notch it would not have fired the gun as the cylinder by that point was not properly indexed meaning that the cartridge next in line was not yet in alignment with the barrel.

I think everyone understands what the report says. The problem is that the FBI is a partisan in this case. It is a law enforcement agency working with the state. Because Americans recognize the potential for bias, prejudice, and even corruption in state actors, a fair adjudication process (i.e. Constitutional Due Process) provides the defendant a right to examine the evidence and make his own assessment. The key parts having been destroyed during the FBI's tests, AB is unable to exercise this very important right. If the judge finds this places him at an unfair disadvantage in defending himself, he may order all references to the FBI's testing and results excluded from evidence. All MOO.

 

[Lilibet]

Thanks, @al66pine ! I did see this but the instruction number didn't match the statute's (14-220). However, in the press coverage the parties seem to be talking about more than simple negligence. Willful disregard for the safety of others is consistent with the standard for manslaughter in other jurisdictions I have seen.

IIRC, negligence is a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. This is pretty well established by the facts we know.

"Willful" conduct is generally described as demonstrating a stubborn determination and intention to do what one wants, regardless of the consequences. It a deliberate decision to ignore possible harm, as distinct from mere failure to exercise due care.

This standard will be hard to prove beyond a reasonable doubt. Showing that mistakes were made won't do it.

As I mentioned in my earlier post, isn’t pointing a gun at someone without personally checking it more than a “mistake”? It strikes me as particularly “willful,” according to your description, if the jury believes the armorer that AB was inattentive during gun safety training. Maybe I’m being too literal in reading and interpreting your comment…

“"Willful" conduct is generally described as demonstrating a stubborn determination and intention to do what one wants, regardless of the consequences. It a deliberate decision to ignore possible harm, as distinct from mere failure to exercise due care.”

Was AB just failing “to exercise due care” or was he “showing a stubborn determination to do what one wants” making “a deliberate decision to ignore possible harm” (arrogance)? I just have trouble seeing how a grown man, experienced with guns in movies, could make such a “mistake” as to point a gun at anyone without personally checking it.
JMO