How Strong Is the Case Against Alec Baldwin ?

Hutchins was fatally shot, but Baldwin has maintained that he did not pull the trigger and that gun safety on the set was not his responsibility. Someone is responsible for what happened, and I can't say who that is, but the Santa Fe District Attorney is saying who is responsible.

Baldwin in the Film's Armorer had a Gutierrez read a person died because of this negligence, because of this this recklessness, and d A. Mary Carmack all tweets is charging both of them with involuntary manslaughter, joining me as former federal prosecutor Robert Mintz, A partner mc harder in English, Bob, Most people see this as a tragic accident. Is it

surprising that the d A is bringing charges. What this does represent a dramatic culmination of more than a year of speculation over who, if anyone, would be held accountable for the tragic death of cinematographer Elina Hutchen. In this case, there is no evidence that anybody did anything intentionally wrong.

What it really turns on is whether they acted recklessly, In other words, whether they should have been more careful in making sure that the weapon that was being handled by Alec Baldwin did not contain a loaded bullet and

ultimately it killed the cinematographer. Based upon a series of people who handled that weapon before it was placed into the hands of Alec Baldwin, the d A is going to file too involuntary manslaughter charges against Baldwin and Guccieras read two levels sort of that required different standards of proof. Under New Mexico law, there's voluntary manslaughter and involuntary manslaughter.

Voluntary manslaughter consists of an intentional killing for which there was a mitigating circumstance that reduces the crime from murder. Involuntary manslaughter, which is what has been charged here, consists of a killing that was unintentional, but it results from either recklessness or criminal negligence. Here, Alec Baldwin was charged with two counts of involuntary manslaughter, one of which carries a penalty is up to eighteen months, and the other

is more serious. It carries a penalty of a mandatory jailson of five years in jail because although it was involuntary manslaughter in the commission of a lawful act, he was done with the use of a firearm, so Balwin has said. Balwin has said all along that gun safety is not the actor's responsibility, and that he relied on the professionals on the set. Does that strike you as a good defense? That really is the heart of the

defense here. Mr Baldwin's defense is simply that he had no reason to believe that there was a live bullet in the gun or frankly, anywhere on the movie set. And this is most important. That he relied on the professionals with who he worked, who assured him that gun

did not have live rounds in it. And the question is for this jury, if it ever gets to a jury, is whether that is enough, whether he can simply turn over the responsibility for gun stacy to the professionals who worked around them and rely on what they tell him, or whether he has an added responsibility since he is the person who is holding the gun. Is he hand added burden to do something beyond simply conferring with the

professionals and relying on what they tell him. The d A said that all the actors they spoke to said that either the actor should have checked the gun or should have had it checked in front of him, and that there was a pattern of criminal disregard for, say, safety on the set. So at trial, are we likely to hear from both sides experts about safety protocols in the industry. I think we are. I think in a lot of ways, what the DA has done here by saying things like, on my watch, no one is above

the law. Everybody deserves justice, what she's really doing is putting not only Alex Baldwin on trial, but in a sense, Hollywood on trial, celebrity on trial. Really the question of whether Alec Baldwin should get any kind of special treatment here or whether he has to play by the same

rules as everybody else. But the question is what are those rule and whether it was reasonable for him to rely on what others told him, or whether he had an added burden of checking that gun himself or taking additional steps to ensure that what he was told was accurate because he had in his hand a weapon that was a working pistol that if it did have light ammunition, could result in the fatality, which is exactly what happens here.

How problematic is it going to be for Baldwin that he and the d A completely disagree about whether he pulled the trigger. Well, the trigger wasn't pull I didn't pull the trigger. The trigger had to have been pulled, so Alec is wrong. That gun was sent off to the FBI analyst in Virginia who took this gun to the replica of a vintage called forty five, and they determined that the weapons tested normally. In other words, they concluded that in order for the revolvers as fire, the

trigger would have to be pulled. So what you have there is an inconsistency between what Alex Bold was saying about how he handled that weapon and what the FBI report says. Doesn't really go to the heart of the case.

But when you're a defense lawyer, you never really want to have that kind of inconsistency because the prosecution may be able to argue to objuror that he is not telling the truth about whether he pulled the trigger, and therefore he made not being totally candid with the jury about what he was saying and what he was thinking

and what he did when he handled that weapon. So the inconsistency does not necessarily something that goes to the hard the case, but inconsistencies in your witnesses testimony or never something that you want as a lawyer. There were three people who handled the gun. First gauccierres Read, the weapon specialist, Then Assistant Director David Halls, who handed Ballwin the gun saying cold gun meaning there was no live ammo in it. He's pleading guilty to negligent use of

a deadly weapon. And then Baldwin any impact from the second person in the chain pleading guilty. Now, what happened here really is that the district attorney approached this case by scrutinizing the actions of everyone who handled the weapon and everyone who handled the live ammunition. And what they did was they looked at that chain of custody, and ultimately the prosecutor concluded that everybody in that chain of

custody there's some respectability for this fatality. When bringing criminal charges, the prosecutor is going to argue, if you are holding a gun in your hands, you implicitly have a responsibility to make safety your business that you can't simply rely on others. And that's the heart of Alex Baldwin's defense that in the many years he's been on sets, he's handled guns many times. In other movies, he's always relied

on professionals. He did the same thing here. I think we can expect the defense to bring on experts to talk about how the entertainment industry handles weapons on movie sets, what protocols Hollywood sets typically used, and they're gonna argue that what Alex Baldwin did was consistent with the way

the entertainment industry handles weapons on movie sets. But the prostitution is likely to argue, however, is that that doesn't matter that the keys this case is not what Alex Baldwin did, but whether or not what he did was reasonable given the fact that he holding in his hand a working pistol. And they're going to try to argue that it doesn't matter what the protocols were set by Hollywood, that the law is the law, and you don't have two legal systems, one for those people who are powerful

and one for everybody else. The question here is whether he acted recklessly and whether he did it willfully, and that's really going to be a tough issue for jurors to grapple with, which is why this is going to be a difficult case, not only for the prosecutions but also for the defense. Yeah, and of course, as you know, the prosecution has to prove its case beyond a reasonable doubt. Baldwin just has to raise a reasonable doubt in the

juror's minds. Ironically, manslaughter can be more difficult to prove than first degree murder. Manslaughter has all of these nuances in it, Whereas if you're proving a case of premeditated murder, for example, you mostly have great evidence. You's got a confession, you have someone who had a motive, you may have good DNA evidence, you have behaviors both before and after

the Criminal Act that helped put this case together. In a manslaughter case, there's really not so much of a dispute about what happened, but about whether the person acted reasonably under the circumstances. And it's a very fact specific and it really depends a lot on how the jurors viewed the individual's charge and again whether or not they viewed their conduct as reasonable. And in these cases where there has been a fatality on a movie set, the

results have varied. This is not the first time that an actor has been charged with manslaughter in connection with a death during shooting of a movie. For example, in nineteen seven and Los Angeles jury acquitted director John Landis on four associates of involuntary manslaughter on charges stemming from the guests of actor Vic Marland two children in a helicopter crash on the set of the Twilight Zone movie.

That case actually went to trial, and after ten months the jury foremant hole reporters that it was an unforeseeable accident, then that the case did not warrant prosecution. Other casesn't. Even more recently, people have end up leading guilty. There was a case during the filming of the movie Midnight Rider, a biopic about rock star Gregg Allman, where the director pleaded guilty to involuntary manslaughter and served over a year in prison in connection with a train crash that's killed

in the system camera operator. So the results of them vary, and it's a very fact specific and it really depends a lot on how the jurors viewed the individual's charge and again whether or not they viewed their conduct as reasonable. This is a case where the stakes are enormously high. There's a lot of pressure on the prosecution for bringing

this case. This case was something that has generated tremendous publicity, not only in New Mexico, but throughout the country and internationally because of the notoriety and the celebrity a Alex for all it went, and so there was enormous pressure on the d to look at this case and to try to send a message that nobody was above the law and that Alex Baudin was not getting any special treatment.

And the fact that Alex Baldwan actually fired the weapon that killed Elana Hucon made it difficult for her to ultimately conclude that he bore no responsibility. But at the same time, here she's going to be faced with a

very spirited defense. Alec Baldwin has hired a very good criminal defense lawyer and they are going to argue that Alex Baldro was told immediately before he was handed the gun that the gun was quote unquote cold, which means the professional who was handling the gun, who is whose custody the gun was in before it was handed to Alec Baudin, told him that the gun was safe to

use as a prop. So it really comes down to a question of who do you believe, and whether or not you believe that Alex Baldwin was entitled to simply rely on the information he was getting from those professionals, or whether the industry practice or simply common sense and reasonableness dictated that he take additional steps, which is opening the chamber, double checking with others, taking additional steps to make sure that that weapon was safe to aim at

somebody on the set, and that it was unreasonable and dangerous for him to have simply relied on what others told them, no matter that they were professionals and that it was their job to maintain the safety of the guns on the set. There's a lot of finger pointing

going on. Alex Bowan has blamed Gautierra's read and Halls, and Gautierra's read says she wasn't called inside the church to inspect the weapons, and that Baldwin refused her offer to train him on this cross draw, which is apparently a dangerous method of carrying a hand on that started

the west at trial. Is it okay if they continue pointing fingers at each other or should their defenses aligne Well, I think part of Alcoholwin's defense has to be that he relied and what other people did otherwise the responsibility

fall solely to him. So his defense is going to be that that these other professionals, who were well trained and whose job it was to make sure that the gun was not loaded, to make sure that the gun was not posing a threat to others, he relied on them, and that as the actor, he does that all the time and it's not his responsibility to double check what

they're doing. But in this case, there is the possibility that that defense could backfire on them in the sense that you are looking at somebody who's wealthy, who's powerful, who has a lot of celebrity and notoriety, who seemed to be pointing the finger at people who are lesser celebrities, people who work in the film industry, but whose names the average person has never heard of before, and so that's the danger were there that Alec Baldwin is trying

to pass off his responsibility onto people who were working on the set, who are just doing their jobs, who may have been overworked, and who will also faced with the same charges she is. And the question is should everybody in the chain of custody here be responsible or that, or should one person in that chain of custody be able to rely on the other and try to avoid responsibility here. That's going to be the question that jurors will have to grapple with. Thanks Bob, that's Robert Mints

of McCarter and English. There's a turf war between the Securities and Exchange Commission and the Commodity Futures Trading Commission over which should regulate the crypto industry. This is digital assets lost more than two trillion dollars in value and a string of prominent ventures blew up. In sec Chairman Gary Ginstler has been working to position his agency as the one to reign in crypto. Right now, there's not a market regulator around these crypto exchanges, and thus there's

really not protection against frauder manipulation. If the regulator wins its high pro while lawsuit accusing Ripple Labs of selling unregistered digital tokens without adequate disclosure, it will strengthen the SEC's position to take the lead on crypto oversight. My guest is securities attorney Robert him a partner at Tarter, Krinsky and Drogn. He was formerly an assistant Regional director of the SEC. Bob tell us the views of the SEC and the CFTC over why it should regulate crypto well.

The CFTC argues that crypto is more of a commodity in the sense that it's like a medium of exchange, where people are using it as a substitute for currency, and they're using it and they're purchasing things with it, and they're not really buying crypto primarily as an investment product, you know, the way you would with the stock or some sort of security. The SEC takes the opposite view.

They say a lot of these cryptocurrencies and token offerings, although there is an element in them of a value of exchange or medium off the times, the primary way that these new tokens are marketed as being a profit potential, a very significant way for investors to make money by this investment, and that's the basis under which the SEC argues that it should have jurisdiction over cryptocurrencies and not

the CFTC. I noticed that a lot of the cryptocurrency platforms and even Sam Bankman freed they're advocating for being overseen by the CFTC. Is that because SEC oversight would

be more rigorous. The CFTC S approach is more of a lighter approach than the SEC had, And that's why a lot of the crypto sponsors and people behind tokens prefer the CFTC approach because with the security based regulatory system, there's all sorts of requirements for them to draft prospectuses and to register the tokens, and then there's also ongoing regulation of the exchanges on which those securities trade, and if crypto was to be deemed a security, all of

those burdensome regulations would apply to it. With the c SEC, there there's somewhat of a similar regulatory structure in place that does have provisions for protection for market participants, but it's not really as onerous as the security system in a sense, so you don't have to draft prospectuses and and give as much in the way of disclosure as what we needed is if it was an investment as a security, SEC Chairman Gary Gensler seems to be positioning

his agency to take on the job of overside of crypto. He has slapped multimillion dollar fines on crypto companies and those who promote digital assets. Yes, Chairman Gensler is certainly trying to position the SEC as the primary agency to regulate cryptocurrencies in the United States. In a way, this is a classic turf battle between two federal agency, the CFTC and the SEC, over who's going to have jurisdiction

over cryptocurrencies. And I think it's indicative of the bigger failing in the sense that many other countries are engaging in a legislative process where people have votes and there's a rulemaking and there's a concerted, well thought out roadmap to how cryptocurrencies are going to be regulated. In contrast, the United States, we really don't have that system happening.

There's been a number of different bills that have been introduced in Congress that haven't really got anywhere, and much of the regulation over the crypto markets in the United States is done through enforcement actions, whether those enforcement actions

are brought by the SEC or the CFTC. And it really leaves market participants in the lurch because they really don't have the same level of guidance that other countries provide in terms of what rules are to be followed and what sort of compliance steps have to be taken. The Ripple case SEC soon Ripple is the most high profile fintech lawsuit. Tell us about it. The Ripple case is really the most significant enforcement case in the crypto

space that the SEC has ever brought. It started the case back in December when it filed its complaint which alleged that Ripple and two executives with Ripple violated the registration provisions of the securities laws and raised over a billion dollars in violation of the securities laws in the United States. And this came as a great shock to the market. Ripple and It's and it's token x RP.

We're among the most popular crypto tokens in the United States at that particular time, and the company had been in operations since so at that time eight years had gone by without the SEC, you know, ever saying anything that this was going to be a problem. Was they viewed Ripple or x RP as being an inviolation of the securities laws. And then out of nowhere, this enforcement lawsuit was filed back in and it really completely shook

up the market for x RP. It led to its delisting in the United States from various exchanges, and the people who were holding that crypto token really suffered a lot of losses once the SEC brought that enforcement taste.

And for over two years, Ripple has been fighting the SEC in court and trying to win a determination from the judge that the SEC simply does not have jurisdiction over Ripple or x r P. Yeah, and it's got some heavyweights to defend it, including Mary Joe White, who led the SEC for almost four years under President Obama. So what's taking so long for the judge to make

this decision. Well, like any complicated case, there's a very lengthy discovery period that happened in this case also, where depositions were taken, A large amount of documents were exchanged between the parties. Each side had numerous experts that they retained to try to present evidence and all. This is somewhat unique because in the past, when the SEC has gone after various cryptocurrency sponsors and tokens. Many of them didn't really have the resources to fight the SEC, and

there was a lot of settlements here. Ripple does have the resources, and they've hired very prominent defense attorneys and very talented defense attorneys to defend themselves. And right now that phase of the case has come to an end, and some rey judgment motions have been filed by both the SEC and by Ripple asking the judge to rule in their favor and saying that a trial is not necessary and that each side is requesting that the judge rule in their favor. So it's been a very lengthy,

hard fought battle on both sides. Bob, Is the judge just going to make the decision about whether it's coin is a security or not? Is that the decision that is going to turn the case. Yes, that's really the key decision that the judge has to make right now

on summary judgment, and much can do a few things. Um, the judge can rule for either the SEC on one hand, or the judge can rule or Ripple on the other And what the judge is trying to find out is if there's really a material dispute in the underlying facts. And if she finds that there is a dispute in the facts, didn't going to go to a jury trial. If the judge feels that there's no dispute in the facts and it's really just a question of law, then

she'll feel comfortable making that decision. So the judge can either rule for one side or the other, or the judge can say there's too much in the way of factual disputes here and a jury has to rule. So there's three different possibilities that the judge can come down on. So a federal judge in New Hampshire in November and to find a digital asset as a security. Are there

any cases where judges went the opposite way? Well, it's not so much a case, but Bitcoin is probably the primary example of a crypto token or cryptocurrency that is and deemed not to be a security, where even the SEC recognizes that as such. The issue is that almost every cryptocurrency is created in a different way, and it's marketed in a unique way, and it's very hard to generalize from one case to another because in certain cases, and the case in New Hampshire which you're referring to

which involves the library token. The judge had to look at the marketing material as to how the token was promoted and what statements were made by the company, and that's going to vary from company to company. In the Ripple case, the judge has to do the same thing. Both the SEC and Ripple are pointing to the marketing materials. The SEC argues that those marketing materials show that it was being promoted to investors who were speculating on it

and hoping that the price would go up. And then Ripple is pointing to other marketing materials that they say show that this more or less mechanism of payment and that people were buying x RP to is it in business transactions and to send money and to make charitable donations. So oftentimes it's a very fact specific inquiry and it's hard to generalize from one case to another. Do you have an opinion about whether x RP is a security

or not? Yes, I've been following a case very closely since its inception, and I've reviewed the party's briefs for summary judgment, and both the SEC and Ripple focused on what's called the investment contract provision of the security laws, and the investment contract provision is what the SEC is saying that this crypto token is an investment contract and as such is a security, and an investment contract is one of the enumerated categories, and the statute as to

what that is. Case law has defined what an investment contract is. But I think Ripple has some very strong arguments that many of the provisions of an investment contract are not applicable here. Specifically, much of their marketing material really does focus on Ripple b promoted as more or less a mechanism of payment and not speculative investment, and a lot of people have Polomkus briefs and organizations and

supportive Ripple on that point. In addition, I think Ripple has done a good job trying to argue that there's no commonality of interest, which is another factor that courts look at determine whether it's something is a security or not. So I think Ripple has some very strong arguments that the judge is going to give serious consideration too. How important is this decision by one federal judge in New York? I mean, is it going to be very influential? Yes,

No matter which way this decision goes. This is going to be a very influential decision. If the SEC wins this case, it's just a litigated case where the defendants have had a full opportunity to present all of their arguments by the most talented lawyers. And if the SEC wins this case in New York Court, it's really going to cement its role as the primary regulator over the crypto markets, and it's going to give the SEC a leg up in terms of wanting to be the lead

regulator and arguing that almost all crypto is securities. And it's going to, I think, have a c change in terms of cryptocurrencies having to register and exchanges where they are traded, having two registers exchanges with the SEC by the same token. If Ripple winds, it's going to be a devastating blow to the SEC in terms of its

efforts to argue that cryptocurrencies are securities. And I think it's going to really allow people to feel more comfortable creating and disseminating and distributing cryptocurrencies with the more limited touch of perhaps c FCC or commodities style regulation over a full blown securities regulatory approach. Are judges influenced by the thought of protecting unsophisticated investors and that the SEC

might be better at that. Well, yes, judges are going to definitely be very concerned with investor protection, and in fact, investor protection is at the root of the securities laws that the SEC is trying to enforce. And on top of that, we recently have the FTX implosion, which caused billions of dollars of losses to innocent investors, and and that's also going to be weighing on the judge's mind in terms of how important this is going to be.

But at the end of the day, a lot of the judge's decision is going to be looking at the text of the Securities Act, and that's the case law that's developed under it. And what the defendants have argued is that, you know, what the SEC is saying is that they feel that that crypto really would benefit from

more disclosure and more regulation. But the defendants are saying that that's fine and good, but it's really Congress's job to make those laws and to set the priorities and to set the rules, and the SEC just can't come into a new area that it doesn't have any sort of statutory jurisdiction over and trying to enforce the rules which were created in the nineteen thirties for the most part, and trying to impose this on a new convention like

digital asset without any sort of statutory authority from Congress. Thanks so much, Bob. That's Robert him of Tartar, Krinsky and Dragon. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten

BM Wall Street Time. I'm June Grosso and you're listening to Bloomberg