Mitchell Driskell

Published on March 8th, 2023 | by Mitchell Driskell


The Local Lawyer: Barstool Briefs Part 31: “Short Stories on Legal Affairs”

Alec Baldwin and Ex Post Facto

Let’s say that you get caught stealing eggs and are arrested. Before your case goes to court, there is a major egg shortage and the government passes a new law saying that anyone getting caught stealing eggs has to go to prison for at least one year. When your case goes to court, can you be sentenced to prison under the new law?

No, because ex post facto. “Ex post facto” is Latin for “after the fact.” An ex post facto law is a retroactively changes the legal consequences of actions that were committed before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed or it may change the punishment prescribed for a crime by adding new penalties or extending sentences. Our founding fathers hated ex post facto laws and banned them in The Constitution. The rule against ex post facto laws is Criminal Law 101—it looks like the New Mexico prosecutors going after Alec Baldwin failed Criminal Law 101.

After the tragic gun accident on the set of the movie Rust in which Alec Baldwin was holding a gun that fired a live round and killed cinematographer Halyna Hutchins, New Mexico passed a new law providing mandatory jail time for involuntary manslaughter involving a firearm. The prosecutors charged Baldwin under the new law and you might recall headlines and commentary focusing on the fact that Baldwin faced mandatory prison if convicted.

Baldwin’s lawyers passed Criminal Law 101 pointed out the ex post facto problems of charging Baldwin under the new law. In the “motion” filed with the Court, Baldwin’s lawyers said that prosecutors in the case had “committed an unconstitutional and elementary legal error” by charging Baldwin under a statute that didn’t exist at the time of the shooting. Instead of admitting error and apologizing, the prosecutor said that they agreed to dismiss the mandatory jail time charge “in order to avoid further litigious distractions by Mr. Baldwin and his attorneys.”

According to the New Mexico prosecutors, holding them to the criminal rules established by the Constitution is a “litigious distraction.” In my opinion, this whole prosecution is a “political” distraction brought by New Mexico politicians trying to make a name for themselves out of a horrible accident. They tried to throw the kitchen sink at Baldwin, but ex post facto got in the way. Now, without mandatory prison time to hold over his head, I almost guarantee they will not get a guilty plea and the chance of a conviction is slim.

Should’ve Said No—To Arbitration

Live Nation and subsidiary Ticketmaster asked a U.S. judge on Friday to halt a proposed consumer class action over their sales of Taylor Swift concert tickets and instead force claims to be heard privately in arbitration. Arbitration is a four-letter word to trial lawyers who file lawsuits for consumers.

Trial lawyers want consumer claims alleging fraud or faulty products to be heard in court, by a jury of other consumers. Companies want claims against them to be heard in a private meeting called an “arbitration” where the case is settled by lawyers trained to be essentially a private judge. Arbitration is far less risky than letting what big companies see as the unsoiled, uneducated masses decide their legal liability. In just about every consumer transaction, from buying Taylor Swift tickets on-line, to buying a new car, to buying a new computer at Office Depot, companies insert arbitration provisions in the sales documents where the consumer, almost always unknowingly, agrees to give up the constitutional right to a jury trial and instead go to arbitration. When consumers say that they did not know they agreed to arbitration, the rule that a person is expected to read every word of a contract, every word of the “terms of use” of a website, comes into play.

Taylor Swift fans may soon learn these lessons. Ticketmaster and Live Nation are hoping to head off a lawsuit in California federal court accusing them of violating antitrust and consumer protection laws. The lawsuit alleges the 2010 merger of Live Nation and Ticketmaster eliminated market competition and let the companies charge higher prices for Swift tickets. The companies argue that a customer must agree to arbitration multiple times in the on-line buying transaction and that customers are bound to those “I agree” clicks. Next time you agree to terms and conditions, read through it and notice the arbitration agreement. You can either click it or shake it off.

Sex Trafficking Sidekick Seeks Second Chance

Ghislaine Maxwell has asked a United States appeals court to throw out her conviction for helping Jeffrey Epstein sexually abuse teenage girls, saying a slew of errors marred the case as prosecutors made her a scapegoat because the financier was dead. Maxwell is currently in a federal prison in Tallahassee, Florida, serving a 20 year sentence. I say feed her to the gators and move on.

Mitchell Driskell practices law with the Tannehill Carmean firm (voted Oxford’s Best Law Firm every year since 2010) and has been an Oxford lawyer for twenty two years. You can call him at 662.236.9996 and email him at He practices criminal law, civil law and family law.

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About the Author

Mitchell Driskell practices law with the Tannehill Carmean firm and has been an Oxford lawyer for twenty-two years. You can call him at 662.236.9996 and email him at He practices criminal law, civil law, and family law.

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