‘Rust’ Prosecutors’ Challenge: Why It’s So Hard to Get Convictions From Movie Set Deaths

·9-min read

When Richard Jones’ daughter Sarah Jones died while filming on active railroad tracks during the first day of filming director Randall Miller’s “Midnight Rider” in 2014, he founded the nonprofit Safety for Sarah to insure that such a fatal on-set accident “never again” happen, only to become heartbroken when cinematographer Halyna Hutchins died on the set of “Rust” last month.

While Sarah Jones’ death during the production of the indie film was not the only case in which someone was fatally wounded in an on-set accident, it remains the only instance in the U.S. in which a director was convicted on criminal charges. In 2015, Miller pleaded guilty to charges of involuntary manslaughter and criminal trespass and served a year in jail followed by probation.

Between 2011 and 2019, the U.S. Bureau of Labor Statistics tracked 17 fatal occupational injuries within the motion picture and video production industry — and at least 25 since 2003. One of those was the result of a gunshot wound. And according to data from the Associated Press in 2016, there have been at least 194 serious injuries on film and TV sets in the U.S. between 1990 and 2014, with at least 43 deaths in that period.

While some on-set accidents and deaths have led to outrage, reforms in industry protocols, fines or other consequences, the question remains: Why haven’t more of these tragedies led to criminal cases and convictions?

“Never again. Never forget what happened to Sarah when safety was not a priority and never again let it happen, another person die,” Richard Jones told TheWrap of his group’s mission. “There’s been success. But then as far as the ‘never again let it happen,’ we obviously are disappointed. That’s an understatement that we had hoped to prevent another death, and we didn’t, and Halyna, of course, she paid the ultimate price. It breaks my heart.”

In 1993 when Brandon Lee was killed by a blank on set of “The Crow,” an investigation found that there was negligence on set, but no foul play, and no charges were filed. When Jon Erik-Hexum died after he shot himself in the head with a blank while playing Russian Roulette on the set of “Cover-Up” in 1984, police ultimately ruled the shooting an accident. No charges were filed in the 1995 death of stuntwoman Janet Wilder on the set of the film “Gone Fishin’ when a speedboat misjudged a jump and crashed into separate boats with crew and extras. And more recent cases, such as those involving deaths on “Deadpool 2,” “Resident Evil: The Final Chapter” and “The Walking Dead,” have led to civil lawsuits and some victories for the victims, but no criminal charges.

One other famous example was on the 1983 film “Twilight Zone: The Movie,” in which director John Landis, as well as four other crew members, were charged with manslaughter for the death of actor Vic Morrow and two child actors when a helicopter crashed due to a special effects explosion gone horribly wrong. However, all five were acquitted in 1987 after a lengthy trial. Criminal lawyer Harland Braun was the defense attorney who successfully litigated the case, and in an interview with TheWrap, he explained why movie sets are such a unique animal when it comes to proving criminal negligence.

brandon lee
Brandon Lee in “The Crow”/Miramax

A movie set, Braun said, is different from any other workplace with safety concerns, such as a hospital or a factory. A set moves from location to location, involves people who may know each other but may never have worked together before. And the presence of guests, extras and actors who come and go from the set further complicate the issue.

But more crucially, movie sets operate with multiple layers of safety precautions and numerous individuals tasked with oversight — which can make it tricky for a prosecutor to make a criminal case. Who exactly is responsible when the work of one individual depends on the work of another?

“The fact that three or four people are involved in the safety, that’s great, that’s exactly how you want to protect yourself, because if one person screws up, it doesn’t necessarily kill someone,” Braun told TheWrap. “However, from a prosecutor’s point of view, there may be five people involved, and each one relied on the other person. Can you really say that they’re reckless regarding the person that’s ahead of them? The very thing that the movie tries to layer on safety features creates a problem where no one person is responsible.”

In the case of “Rust,” authorities in New Mexico have reported that both armorer Hannah Gutierrez-Reed and assistant director Dave Halls handled the firearm before handing it to actor Alec Baldwin, who fired the shot that killed Hutchins. But what remains unanswered by police is how live ammunition made its way to the “Rust” set and got loaded into the gun.

Santa Fe District Attorney Mary Carmack-Altwies said at a press conference last month that it was too early to determine whether criminal charges would be filed over Hutchins’ death but that no one yet has been ruled out to face charges. “We are not at that juncture yet. If the facts and evidence support charges, we will initiate charges at that time,” she said at the time.

Even if criminal charges are filed, prosecutors may struggle to prove a case beyond a reasonable doubt. In the “Twilight Zone” trial, Braun said he took the unusual approach of assembling the most educated jury he could find. His goal was to get the jury to understand the experts who explained the accident resulted from a helicopter malfunction and the deaths and injuries were “unforeseeable.” Had the helicopter tipped a different way, it could have killed Landis or whoever was in the vicinity of the crash.

But if the district attorney on “Rust” is to bring charges, Braun explains she’ll also have the challenge of distinguishing between “simple negligence” and “criminal negligence.”

Bill Quinn And Helen Shaw In 'Twilight Zone: The Movie'
“Twilight Zone: The Movie” (1983)/Warner Brothers/Getty Images

“Simple negligence is what you knew or should’ve known,” he said. “Even if you didn’t know about the danger but you should’ve known about the danger, you’re responsible. Criminal negligence is when there’s a known danger that you know about and despite that danger, you go ahead knowing that you created a risk.”

Safety bulletins for film sets are considered standard practice in the industry, especially in the wake of the “Twilight Zone” accident. In fact, guidelines about firearms are Safety Bulletin #1, and Gutierrez-Reed has maintained that live ammunition should never be around a film set and that she does not know how a live round found its way onto the set of “Rust.”

As of this writing, an investigation into the “Rust” tragedy remains ongoing and no charges have been filed. But despite how rare such charges or convictions are, Neama Rahmani, president of West Coast Trial lawyers and a former federal prosecutor, said he expects manslaughter charges for both Gutierrez-Reed and Dave Halls and that the circumstances in this case meet the necessary standard of negligence for criminal charges.

“Criminal negligence, if I give you a firearm, I tell you it’s a cold gun, it’s not loaded, I haven’t even checked it? That’s grossly negligent,” Rahmani said on “TheWrap-Up Podcast.” “The armorer for sure, and also if it was me, if it was my case, I would also charge manslaughter for Dave Halls.”

Those charges may come in addition to workers compensation claims and civil lawsuits for wrongful death — which would leave the film’s producers, including Alec Baldwin, on the legal hook. And while Gutierrez-Reed’s lawyers have claimed she had no knowledge of the live rounds, even suggesting that “sabotage” could have been to blame, she could still face civil lawsuits for her role in Hutchins’ death.

“She is responsible for handling the firearms, loading them, importantly checking them — she’s the one who told law enforcement that she checked them,” Rahmani said. “Even if you take [sabotage] at face value, which is a dubious proposition, she is responsible. Blanks look different from live rounds, she is the one who supposedly has expertise in live rounds… She is responsible. I think manslaughter charges are appropriate for her. It’s grossly negligent to handle a firearm in such a way.”

Jones recalls that the “Midnight Rider” investigation revealed a “sequence of events that occurred, bad decisions, no decision, etc., that occurred that allowed Sarah ultimately to be killed.” He suspects something similar will be revealed once the “Rust” inquiry is complete, and reports thus far have discussed complaints about the working conditions that don’t stop at one individual.

Candlelight Walk And Memorial For Sarah Jones
Richard Jones (left) at a memorial for his daughter Sarah Jones after the accident on set of “Midnight Rider”/David McNew/Getty Images

But Jones knows all too well how difficult it can be to make a criminal case. “Certainly, an investigation will show that there was very, very bad decisions made, and probably a bad job, they didn’t do the job very well, but that in itself may not be a crime,” Jones said. “It’s difficult to prove.”

Jones believes that the industry itself needs to hold individuals accountable, and in 2020 he publicly called on the Directors Guild of America to revoke the guild membership of Randall Miller, as well as other directors who neglect safety guidelines and are convicted as criminals. (A rep for the DGA did not respond to a request for comment)

In the years since his daughter’s death, he’s visited film sets and reminded people of the dangers and all that could go wrong, and he’s been heartened to see people using Sarah’s name as a way for crew members to speak up about their concerns. But revised safety procedures alone won’t be enough for the people who ignore them.

“The people who do care, they woke up and they listened and they have improved. The people who don’t care, you could have all the rules you want, and it won’t matter,” Jones said. “My message to the industry is we’ve got to be able to enforce the guidelines that are in place. If the guidelines or safety protocols need to be strengthened, we need to do that, but without enforcement, you’re not going to stop this kind of tragedy.”

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