Special prosecutor urged dismissal of Baldwin's charges

In her role as a special prosecutor in the Alec Baldwin criminal case, Erlinda O. Johnson said she urged her co-counsel to dismiss the charges against Baldwin on Friday after new evidence emerged that had not been disclosed to the defense prior to the trial.

Johnson said she believed she had no alternative but to resign after her co-counsel, lead special prosecutor Kari T. Morrissey, rejected Johnson’s recommendation during a noon-hour meeting.

“Ethically, I saw no other choice,” Johnson said Monday in a phone interview. “Because I had made a recommendation. That recommendation was not followed. The only choice I had was to ask the judge to let me withdraw.”

Morrissey responded Monday that she believed that prosecutors needed to air the facts and issues in a public hearing.

"Ms. Johnson wanted the case dismissed without a hearing or a public record," Morrissey said in a written statement. "I believed that as a special prosecutor it was incumbent upon me to ensure that all of the facts and circumstances were in the public record and I stand by my decision."

About three hours after Johnson’s resignation, 1st Judicial District Judge Mary Marlowe Sommer tossed Baldwin’s involuntary manslaughter charge after finding that prosecutors had withheld evidence from the actor’s defense team.

That evidence included a handful of live bullets an Arizona man turned over to investigators in March. Three of those bullets resembled live rounds found on the “Rust” movie set following the shooting death of cinematographer Halyna Hutchins.

Baldwin, the lead actor and co-producer of the movie, was rehearsing a scene on the set at Bonanza Creek Ranch near Santa Fe when the gun he was holding discharged, fatally shooting Hutchins, 42, and injuring director Joel Souza.

The evidence of the new live rounds came Friday morning on the third day of testimony in Baldwin’s trial in 1st Judicial District Court in Santa Fe. The disclosure led to the dismissal of charges against Baldwin. He cannot be retried.

Johnson said she first saw the evidence at the Friday morning hearing.

“At that point, I thought, this is not good. This is absolutely not good,” Johnson said. “The state should have turned this over. And here we are in the middle of trial. And my recommendation and my belief, based on the law, based on my ethics, is that the state should have dismissed the case.”

Johnson had intended to ask the judge for permission to withdraw immediately after lunch, but the hearing had resumed when she returned to the courtroom.

“When I came back, the judge was already on the bench and I sat down. And as I was sitting there, the only thing that was going through my mind was, ‘This isn’t right. This is not right.’”

During a break in the hearing, Johnson approached the judge for a brief bench hearing with Marlowe Sommer, Morrissey and defense attorney Alex Spiro.

Johnson, who joined the prosecution team in April, explained then that she had known nothing about the new evidence, which Morrissey verified. Marlowe Sommer allowed Johnson to withdraw.

“I sat in the back for a few minutes, and then I left,” said Johnson, who worked 11 years as a state and federal prosecutor, followed by 17 years as a criminal defense attorney.

The new evidence

The existence of the live rounds emerged Thursday afternoon when Spiro asked Santa Fe Sheriff’s Office crime scene technician Marissa Poppell whether a “good Samaritan” had brought ammunition to the sheriff’s office earlier that year.

Poppell acknowledged that she had received Colt .45 rounds in March from Troy Teske, a former Arizona police officer and a friend of veteran movie armorer Thell Reed, the stepfather of “Rust” armorer Hannah Gutierrez Reed.

Gutierrez Reed, now 27, was found guilty in March by a Santa Fe jury of involuntary manslaughter in Hutchins’ death. Marlowe Sommer in April sentenced her to 18 months in prison.

Poppell also testified that the rounds provided by Teske, and a report Poppell wrote about the rounds, were tagged under a case number different than that of the other “Rust” evidence.

The admission prompted Baldwin’s attorneys to file a motion Thursday evening asking the judge to dismiss the case. Poppell’s testimony also came as a revelation to Johnson, she said.

“I learned about the existence of that evidence that had not been turned over” to the defense, Johnson said. “I learned about it during Mr. Spiro’s cross examination of the crime scene technician.”

In a dramatic hearing Friday morning, Marlowe Sommer called for prosecutors to produce Teske’s rounds and Poppell’s report. The judge then donned blue latex gloves, cut open the evidence envelope with scissors, and ordered the rounds displayed on a table in front of the judge’s bench as attorneys gathered around.

The examination determined that three of the rounds had characteristics that resembled the five live rounds found on the “Rust” set, and a spent casing of the round that killed Hutchins.

Defense attorneys seized on the revelation to allege that prosecutors and investigators had concealed evidence from the defense. Marlowe Sommer agreed and dismissed the charges against Baldwin on Friday afternoon.

In another twist, Morrissey took the witness stand Friday and testified under questioning by Spiro. She testified that Teske’s rounds had no evidentiary value in Baldwin’s case.

“I have absolutely no reason to believe that (the rounds) are relevant to the incident that took place on the set of ‘Rust,’” Morrissey said. “These are rounds that were in the possession of Thell Reed and never left the state of Arizona.”

Johnson, who delivered the prosecution’s opening statement in the trial, said she regrets that the case didn’t go to the jury. In her opening, Johnson told jurors that Baldwin violated “cardinal rules” of gun safety by pointing it at Hutchins, cocking the hammer and pulling the trigger.

“I still believe there was evidence of recklessness,” she said. “But that’s not the issue.” The evidentiary value of the rounds may never be known, Johnson said. Had the evidence been disclosed to the defense, prosecutors could have argued that the rounds are irrelevant to the case.

“But that’s not the issue — the issue is the disclosure,” Johnson said. The evidentiary value of the rounds were up to the defense team to determine, she said.

“It’s not a prosecutor’s decision to decide what a defense is going to be,” she said.