By Andrew Hay
(Reuters) -A New Mexico judge on Monday told the district attorney overseeing the "Rust" movie-set shooting case that she could not appoint a new special prosecutor and remain on the case herself, marking another potential setback for the prosecution.
The comments by district court Judge Mary Marlowe Sommer came after the armorer charged in the 2021 shooting filed a motion to block appointment of a new special prosecutor after the previous one resigned.
Lawyers for Hannah Gutierrez-Reed also sought to stop Santa Fe District Attorney Mary Carmack-Altwies from acting as a co-prosecutor in the case, as she previously did.
The filing was the latest effort by defense lawyers to weaken a prosecution beset by legal errors since it filed criminal charges in January against Gutierrez-Reed and actor Alec Baldwin for the fatal shooting of cinematographer Halyna Hutchins.
Marlowe Sommer told Carmack-Altwies the statute underpinning use of a special prosecutor said a district attorney could only appoint one if he or she had "good cause" not to take part in a prosecution themselves.
"You cannot use it unless you're not going to prosecute," said the judge, who scheduled another hearing for Friday.
Carmack-Altwies said she still planned to use the statute to appoint a special prosecutor, telling the judge her short-staffed office could not handle the "massive amounts of time" required for the "Rust" case on top of its existing workload.
Andrea Reeb, who is a Republican state representative, resigned as special prosecutor in the case on March 15 after Baldwin's lawyers argued that serving in two branches of government simultaneously was unlawful as it could lead to a conflict of interest.
Carmack-Altwies has only five weeks to appoint a new special prosecutor before a May 2 preliminary hearing in which Marlowe Sommer will decide whether there is probable cause to try Gutierrez-Reed and Baldwin.
Baldwin has pleaded not guilty to an involuntary manslaughter charge and Gutierrez-Reed is expected to do the same.
Hutchins was killed and "Rust" director Joel Souza injured when a revolver Baldwin was rehearsing with fired a live round.