Baldwin and Brady

With all the chaos and craziness that happened during the Baldwin Involuntary Manslaughter with a Firearm case, I need to jot my thoughts down and try to make sense of the senseless.

First, let me write out what Alec Baldwin was charged with.  According to the document online, Alec Baldwin was charged with 1 count of involuntary manslaughter (negligent use of a firearm).  In the document, there is an alternative charge which was involuntary manslaughter (without due caution or circumspection).  For the first part, "the defendant did cause the death of Halyna Hutchins in the commission of Negligent Use of a Firearm, an unlawful act, which did not amount to a felony".  For the alternative, "the defendant did cause the death of Halyna Hutchins by an act committed with total disregard or indifference for the safety of others, and the act was such that an ordinary person would anticipate that death might occur under the circumstances".

According to New Mexico's involuntary manslaughter statute, involuntary manslaughter is a killing which occurs under any of the following circumstances:

* While committing a crime which does not amount to a felony
* While acting in a reckless manner which may cause the death or another person
* While committing any other act which may cause the death of another person in an unlawful manner

Negligent use of a deadly weapon consists of:

1. discharging a firearm into any building or vehicle or so as to knowingly endanger a person or his property;
2. carrying a firearm while under the influence of an intoxicant or narcotic;
3. endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner; or
4. discharging a firearm within one hundred fifty yards of a dwelling or building, not including abandoned or vacated buildings on public lands during hunting seasons, without the permission of the owner or lessees thereof.

"Negligent" defined. — "Negligent" means omitting to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do

According to the same resource, the defense for this charge is the death was an accident and the person was not acting in a reckless manner or with criminal negligence.

Now, the case was dismissed with prejudice by the judge because of an alleged Brady violation.

So, now we have to define what is a Brady violation which, according to the Cornell Law School website, requires prosecutors to disclose material, exculpatory information in the government's possession to the defense. Brady material, or the evidence the prosecutor is required to disclose under this rule, includes any information favorable to the accused which may reduce a defendant's potential sentence, go against the credibility of an unfavorable witness, or otherwise allow a jury to infer against the defendant’s guilt. 

The defendant bears the burden to prove that any withheld information was both material and favorable. A defendant meets this burden if they can show that there is a reasonable probability that the outcome of the trial would have been different had the information been disclosed.

Next, what evidence was withheld?  It was evidence regarding live ammunition turned into the police department that had been filed under a different case number.  

Now, is this evidence relevant to the charge against Baldwin.  Per the statute, where the live ammunition came from, who put the live ammunition in the gun, when the live ammunition was put in the gun, why the live ammunition was put in the gun, and how the live ammunition was put in the gun are irrelevant facts.  There is no defense that would be strengthened using any evidence pertaining to the live ammunition.  Live ammunition does not say anything about the incident being an accident.  Live ammunition does not say anything about Baldwin's handling of the gun.

The live ammunition evidence is not material as laid out in the previous paragraph.  It is not favorable to the defendant, for the same reason, that it does not speak towards the handling of the gun.  It is not exculpatory for the same reason.  It does not impeach any evidence pertaining to the involuntary manslaughter since the primary evidence for the involuntary manslaughter is Baldwin's own words from his police interview and other interviews he did along with the standard rules and regulations governing guns on a movie set, and handling guns in general, none of which was proffered by the State at the time of the ruling.  I would go as far to say that no relevant evidence had even been presented yet.  Why the State did not focus on the handling of the gun and Baldwin's knowledge about guns on a movie set rather than chase all the defense's rabbit trails is beyond me.  I really expected to hear more "Objection: Relevance" 

Honestly, the dismissal was a knee-jerk and emotional decision that did not have a thorough analysis of the matter as it relates to the charges of this case.  The judge said it was material, but did not say how it was material.  Nothing supporting the assertion was given.  It was said and everyone took it as a matter of fact.  No one has given that supporting information or even done any in-depth analysis to ask the questions.  It is being assumed that the non-disclosure was a Brady violation and I am not certain of that.  It very well could be, but I have not heard a good argument for it from a law perspective as it relates to involuntary manslaughter.  The analysis would be different for murder or voluntary manslaughter in which case the live ammunition would definitely be material evidence.

Now, putting Brady aside, what evidence could be submitted to prove involuntary manslaughter?  Did Baldwin commit an unintentional killing by acts unlawful, but not felonious, or lawful, but done in an unlawful manner, or without due caution and circumspection?

His police interview provides the answer to those questions as well as other interviews he did since the shooting.  The answer is yes, he acted recklessly and he definitely knew that it was since he stated that even blanks could possibly injure someone.  

Now then, what are the essential elements of the involuntary manslaughter case:

1. The death of a human being.

Halyna Hutchins was killed

2. The death was caused by the defendant’s act or omission.

Baldwin pointed the gun at Halyna Hutchins.  The fact she was shot proves that he did.  He can argue that he was told to do it by the director which would be something that the jury would deliberate about to see if it absolves him of the act.  I believe that was something he did say in either the George Stephanopoulos interview or police interview.

He pulled the trigger.  There were many tests performed that proves that the only way the gun will fire is if the trigger is pulled.  Baldwin says he did not pull the trigger, but this means these are two facts that a jury would deliberate about.

3. The act or omission was unlawful, but not felonious.

What are the rules of gun safety?

1. Treat every firearm as if it is loaded
2. Always point firearm in safe direction
3. Never point firearm at anything you do not intent to shoot
4. Keep finger off trigger until ready to shoot
5. Know your target and what is behind it

Baldwin broke every one of those rules.  This is at the very least negligence as defined above.  I believe that with regards to guns, if someone ignores these safety rules they are usually held accountable by law.

4. The act or omission was done without due caution and circumspection. 

Baldwin's Stephanopoulos interview and police interview should be sufficient to show that he knew how dangerous guns were and still behaved without any thought to someone being possibly injured. It could be argued that he should have checked the gun and that should be considered reckless behavior, but again, that is something a jury would deliberate on. 

Those are the facts that the jury would be debating. Nothing about the live ammunition needs to be submitted since it is irrelevant as it pertains to the elements of the involuntary manslaughter case.

I tried to connect the dots as I see them with regards to the charges and material evidence with supporting information to show that the evidence is material or that the evidence is immaterial rather than simply state that the evidence is material or immaterial.  If the bullets are material evidence, okay, then step through the reasoning that illustrates this in a logical manner.  Screaming and hollering "it's obvious that it matters" and "we don't know how the defense would use it" are not persuasive in the slightest and definitely would not work against an involuntary manslaughter charge.  That is merely a smokescreen for a weak and unsupportable position.  No one to my knowledge has done this analysis of materiality for the bullets with regards to involuntary manslaughter with the exception of Andrew Branca who has asked the questions.

All the people harping on the fact that information about the bullets was withheld is treating this like a murder trial and it just is not.  The killing was unintentional and does not rise to the level of murder or voluntary manslaughter  There is a lot of hyper-focus on prosecutorial misconduct to the point that everything is seen as a horrible miscarriage of justice, but every charge of a Brady violation should be analyzed with a rational lens and with the same presumed innocence that is afforded to the defense be given to the prosecution.  For Brady, the deference goes the other way and no involuntary manslaughter defense would be effective using information about live ammunition, therefore, while something was withheld it was not anything that actually mattered to the case.

Yes, people are entitled to a good defense, but please, defend against the right thing and do a thorough analysis, not throw up a dazzling smoke-screen and harp on irrelevant nonsense.

Resources:

New Mexico Involuntary Manslaughter statute

New Mexico Negligent Use of a Firearm statute

Cornell Law School - Brady Rule

Yosemite

The trip to Yosemite and San Jose was great, but it didn't start out that way. The flight to San Jose via Phoenix was smooth and uneventful. Upon arriving in San Jose we picked up the rental car at National, a Volkswagen Passat. Since we had been traveling for several hours, we stopped at In and Out Burger for lunch. My wife had the Double-Double and I had a regular cheeseburger. We went to Trader Joe's for food stuffs and a case of bottled water (the beef and turkey sticks were surprisingly good).

After lunch we started off to Yosemite which would take roughly 3 hours. Along the way we stopped off at the San Luis reservoir and toured the Visitor Center. I liked the virtual tour they had of the hydroelectric plant which supplies power to the facility and pumps that regulates the water in and out of the reservoir.

We continued to Yosemite and stopped at a small convenience for a drink and snacks then continued on the road which consisted mostly of open fields, farmland or ranches. 

This is where the "bump in the road" happens. At around 5:30 pm we got a flat tire so I pulled off to the side of the road to change the tire. No problem. We had the spare tire which was actually a full-sized tire, the jack and the lug wrench. I had just unloaded the spare and tools when a CHP officer pulled up to check on us. Dawn was helpful and suggested I loosen the lug nuts before jacking up the car which I knew, but didn't remember the obvious. I looked at the tire and that's when I noticed that there were security locks on all 5 of the lug nuts. Ok, no problem, my car at home has this sort of thing and all you need is the key to unlock the lug nuts. Back to the trunk to find the key, but to my surprise it wasn't there. Officer Dawn checked as well to lend another set of eyes and she didn't find it.

I called Roadside Support and explained the situation to the customer service rep. We went back and forth about what the best course of action would be. The tow truck driver could unlock the lug nuts, change the tire so we can get to Yosemite then swap the car the next day or the car could be towed. We decided on the change and next day exchange option. They scheduled a tow truck to come unlock the tire and change the spare so we could get on our way. I got a link to check the progress on a website, ETA 90 minutes. So, all that was left was to wait for the tow truck to arrive and Officer Dawn left. 

Fast forward 2 hours, the ETA came and went so I called Roadside Support to get an update. The tow company cancelled the request and did not contact anyone so we had to wait for the CS rep to request another tow truck.

At around 8:15 pm, Officer Dawn returned and stopped to check since we were still on the side of the road. By this time my wife needed to use the restroom and had been considering the options available out in the middle of nowhere, none of which were very appealing. Officer Dawn offered to take her to Mariposa which was only 10 minutes away and we took her up on the offer. She went to the Best Western and Kaitlyn was very accommodating and helpful. 

After my wife left, I sat in the car to wait for the tow truck to arrive which was supposed to be 90 minutes. I loaded the website again to track the progress of the tow truck. It was dark by this time and I decided to set up my tripod and smart phone to take some nighttime pics of the night sky. The display of stars was fantastic and I hadn't seen anything like it since camping in Waianae with the family many years ago. After setting up the camera I went back to the car to turn off the hazards temporarily and discovered the doors were locked. Somehow I locked the keys in the car. Seriously?!?

Nothing to do except wait so I took a few pics of the nighttime sky which is what I intended to do before being a bonehead and locking the keys in the car. After another 2 hours, I received a call from Roadside Service to tell me the second request was cancelled. I didn't catch exactly what the reason was except that it had something to do with covid. At this point I didn't care in the slightest. I was tired. I was cold. I have not even encountered the stupid disease at all during the past 2 1/2 years. But, noooooo, cancel and leave me stuck in the middle of nowhere, literally.

More waiting as Roadside Service tried to find a tow company that could get to me. While I'm waiting, CHP pulls up to check. Officer Dawn spoke to a couple of officers before going off shift so they were aware of my situation. I let them know that I was waiting for Roadside Service to get back to me and that they were working on getting a tow truck.

In the meantime, my wife was still at the Best Western Mariposa and worried for obvious reasons. I texted updates to try and ease her fears and concerns. Kaitlyn helped to arrange a room at a discount since it was increasingly unlikely we would make it to Yosemite that night. She also worked with Booking.com to switch our check-in from Tuesday to Wednesday. Kaitlyn tried to help with the tow by calling around to see if anyone could get out to the location.

I contacted a couple of tow companies on my own while waiting since I had nothing better to do. The one company I was able to contact didn't have any drivers available and I couldn't get a hold of any of the other tow companies. Sitting on the hood of the car, I decided to wait for Roadside Service to get back to me since I didn't want to use up the battery power I had left in my phone.

Finally, Roadside Service called to let me know they could schedule a tow truck to respond, but they were in Merced. That was 45 minutes away so it would take between 45 - 60 minutes to arrive. I said do it since I had no other options at that point. Service request number 3 loaded up on the website which said ETA 45 minutes. The driver called me to confirm my location and I was quite happy to provide any details he needed.

My phone battery was down to 3% by this point and drains quickly when it gets to that level so I did what I could to conserve the remaining power. I checked my watch periodically to track the progress until 45 minutes passed. I looked at the website to see what the progress was and it said Arrival in Progress. The minutes continued to tick by and time sure passes slowly when you are aware of every second. I looked down at my phone and it didn't turn on. Obviously, the battery was drained. So, I plopped myself on the hood of the car and waited.

I ignored the lights that illuminated the area since too many times over the many hours it was a passing vehicle rather than the expected tow truck. However, this time I was very pleasantly surprised when the truck pulled off to the side of the road and slowly backed up towards me.

Gabriel from American Towing showed up a little after 2 am and said "Bet you're glad to see me". I said, "You have no idea." He proceeded to unlock the car and I fetched the keys from the cupholder between the driver and passenger seats as well as my jacket which never felt so good to put on. It only took a few minutes for him to load the car onto the bed of the tow truck then we were on our way. 

We had a good conversation during the short drive and he dropped me off at the Best Western then unloaded the car which I would have to exchange in Oakhurst later that morning. My wife was relieved to say the least and I unloaded our stuff into the room we had for the rest of the night.

And so ends the opening act of the drama that was our flat tire on the way to Yosemite.

Happy New Year 2022!

Another year fades into the past and another year explodes on the scene though more so in some areas than others.  The weather has been extremely wet and it stormed over the weekend, but that did not deter the pyromaniacs from shooting off the aerial fireworks like crazy.  I can't really condemn them since I lit up those things back in the day (though the kinds we set off weren't nearly in the same category as the ones these days).

I spent New Years Eve in the movie theater watching Spider-man: No Way Home (arguably the best movie of 2022).  It was dry, I had my lined, waterproof jacket and was with friends.  Watching a movie in the theaters started a few years back with the Star Wars sequels then the Marvel movies when there was no Star Wars movie that year. 

The weather is still very wet but the new year will be a good one.  I'm claiming that right now.

ONLY Han shot plus Greedo was really stupid

I think about this subject from time to time and chuckle at the various "discussions" especially the "Han Shot First" memes.  In reality, the accurate phrase should be "Only Han Shot" or "Greedo Was Stupid".  Here are the points to prove my assertion:

1. Greedo prevents Han from leaving the cantina at gun point

2. Greedo does not disarm Han

3. Greedo directs Han to sit in a booth and keeps the gun trained on Han

4. Han slouches in his seat and assumes a relaxed posture, concealing his gun below the table

5. Conversation between Greedo and Han continues.  Greedo keeps the gun trained on Han.  Han looks up and to the left while speaking as well as moves left hand idly to distract from right hand motion.

6. Han releases gun from holster and draws the gun below the table

7. Greedo makes statement indicating he is about to kill Han ("That's the idea. I've been looking forward to this for a long time." in response to Han saying "Over my dead body")

8. Han fires and kills Greedo

Mistake #1: Point 2

Mistake #2: Point 4

Mistake #3: Point 6

Only Han shot AND Greedo was stupid 

(QED)

"Change the law" argument

Changing the law should not be the go to answer to society's problems.  This ignores the personal responsibility everyone should have.  Reduce prison populations and adjust sentencing simply because demographic group A, B or C is disproportionately represented (as many people argue) is a horrible idea and does not address the underlying problem. The only question that should be asked is if the law is in line with the Constitution. Any considerations beyond that should come after the behavior of demographic group A, B or C is evaluated.

In other words, to quote Jim Carrey from Liar, Liar, "Stop breaking the law, @$$hole!"

So much uproar recently

So many high-profile cases have dropped all at once, some overlapping each other.  In one that has so many very intelligent people on different sides of the issue, it is very interesting to evaluate the perspectives as a way to see how someone views other issues.

This shooting in Lubbock, TX, between Kyle Carruth and Chad Reid is as clear as mud depending on who is doing the explanation.  I was watching VivaFrei's sidebar with Andrew Branca and Robert Barnes and it was interesting seeing the differing points of view.  There were good points made on both sides of the discussion.

To address what Andrew was saying, which was not an unreasonable assessment; I don't believe that it's reasonable to think that the encounter was over when Kyle was tossed off the porch, and Chad was feet away (6, 8, 10, it doesn't ultimately matter) when viewing all the various parts of the encounter as a whole. This is where much of the disagreement occurs for this case. 

If Kyle had not fired when he did there was a very good possibility (I would argue it was a certainty based on what happened up to this point) that Chad would have charged Kyle again to take the gun away and use it on Kyle or simply beat Kyle, possibly to death. What Kyle believed at the time is what matters rather than our assessment after the fact. Here are the relevant things I see when watching the videos.

• Kyle was entitled to produce his gun and demand Chad leave since he did not comply the first time he was told to leave. Bringing out a gun on your own property is legal in Texas. Kyle does not brandish it or use it in a threatening way. He holds it at high ready when he emerges and demands that Chad leave.
• Chad escalated the situation by not leaving and threatened to take the gun and kill Kyle while Chad charged up to Kyle.
• Kyle fired a warning shot which appeared to be an attempt to de-escalate and make Chad back off which we see did not work. This could be an indication of an initial unwillingness to kill, but that feeling changes later.
• Chad escalated the situation by grabbing the gun and tossed Kyle off the porch while failing to obtain the gun in the process.  It is entirely possible Kyle had an "Oh sh**!" moment while flying through the air and became afraid for his life.
• When Kyle fired, he was landing from the toss and regaining his footing. It appeared to be the first opportunity for a clean shot and prevent Chad from continuing the encounter, i.e., neutralize the threat.
• Chad, at every chance, indicated he was going to continue the encounter if he had the chance in which case, it is reasonable to believe Kyle was in fear of his life.

TL; DR 

Chad threatened to drag everyone into court before Kyle appeared with the gun. Why didn't he storm off and follow through with that? Of course, this tragedy didn't have to happen, but it did because someone didn't control himself.

Creeping Tyranny

It started out as "2 weeks to flatten the curve".  I held out hope until 3/30/2020 that I could go on my Disneyland trip during the first week of April.  No such luck.  Too bad, so sad.  Frankly, I was annoyed and irritated back then, now there is a bubbling anger that has a lid on it.

18 months later, things are still stupid to a ridiculous degree.  Can't go inside a business without a mask, no matter that it does about as much good as a chain link fence does to keep out mosquitos.  Talking about a shot like it is God's gift to the world in spite of no where near the level of scrutiny has been given to it that other shots have been given.  I refuse to call it a vaccine because it is not.  It does not grant immunity and it does not prevent transmission.  Two things that were said that it did, but it turns out does no such thing.  Companies have been sued for less.  And they are talking about boosters?  After 3 months?  Have fun with your quarterly booster.

"Trust the science" is repeated ad nauseum except when anyone points out actual science, then it's "just do what you're told".  The data is all there for anyone to see.  Some have even compiled it into easy to read formats, but the raw data is also available.  This is not the plague or zombie apocalypse.  When a disease has an average mortality age higher than the average lifespan on has to wonder ... Dubya Tee Eff.

Honestly, the 2020s will be known as the decade of the dumbass because that is the kind of person in charge and walking around with their head up their hind-side (presumably for the warmth)

Seriously, though, where does it end because the last time stuff like this crap came about there were some countries capable of stopping it (and it got pretty bad before it did get stopped), but now ... there isn't anyone to stop the tyranny.

Unsettling perspective

 I'm not sure why I was thinking about the seven deadly sins, but I have been off and on for the past year and a half during this "pandemic".  It seems to be more and more prevalent these days among people and it doesn't seem like people believe there is anything wrong with it..

Pride – everything is about self 

• Social media has exacerbated this to the nth degree especially with young people (ugh, never thought I'd use that phrase)

Envy – it’s not fair; x group has more stuff, x group has better things 

• You see this with political correctness and "woke" mentality.  It isn't about equity which is equal outcome.  It is about equality which is equal opportunity

Wrath – if you don’t like it, protest it, boycott it, destroy it 

• Antifa, BLM, fill in the blank group that excuses bad behavior and lashing out.  They solve nothing and only serve to hurt people and destroy property.  No one is left in a better position.

Sloth – how can I get something for nothing?  how can I excuse being lazy? 

• There is nothing wrong with trying to get more done with less effort.  I would argue that it is smart to be efficient, but this is trying to make doing nothing appear to be accomplishing something

Greed – I deserve this, I deserve that; outsource charity to the government 

• The entitlement mentality does so much damage to a person.  It saps their productivity, their creativity and charity

Gluttony – how can I get more?  food, property, liberty 

• This is an unfortunate result of an age of abundance where scarcity is not widely known.  It does not mean that it does not exist, but even the most poor in the US is close to wealthy in other parts of the world.

Lust – nuff said 

That being said, what can be done to "combat" the seven deadly sins.  Well, there are seven virtues that go against the sins

Humility cures Pride  

Kindness cures Envy  

Patience cures Wrath  

Diligence cures Sloth  

Liberality cures Greed  

Diligence cures Gluttony  

Chastity cures Lust  

Whether or not these are entirely relevant or not remains to be seen, but thinking about the seven deadly sins in the course of contemplating big decisions would go a long way to bettering the outcome

Restoring nerddom

With all the rubbish going on in the world, I felt the need to write something fairly inconsequential in the grand scheme and fun.

There was a Big Bang Theory episode where Amy "ruins" Raiders of the Lost Ark for Sheldon and the rest.  She said that Indy wasn't needed.  The nazis would have found the Ark, opened it and all died without him.  They were digging in the wrong spot, but that is only because they had an incomplete copy of the medallion.  

The flaw in her argument is that the man in black, Toht, followed Indy to Marion.  If Indy did not go to her, they would not have found the medallion in order to locate Tanis where the Ark was buried.  So, Indy was an integral component to the story.

Here we go again

For the past few months it has been delta, delta, delta when it comes to the covid-19 disease.  Now that delta is losing its oomph, they are moving on to the mu variant.  How much longer before the doom and gloom shifts to this new variant and the nonsense starts all over again?

Honestly, what is this aversion to getting sick?  There is a total irrational fear about this and a complete lack of faith in ones own immune system.  The numbers were not there when it came to the mortality rate for this thing especially when it comes to the younger.

You want to talk about selfish?  It is the old people that are the selfish ones making policy that is detrimental to the current and future health of the next generation.  I'm closer to the older side than previously, but the principle is the same.  The utter irony of this sentiment coming from someone that played hooky from school by dancing in the grey area of being sick is one that I will constantly talk about.

To all the politicians and policy makers out there ... GET A GRIP ALREADY!