Prosecutor Throws Case

By TChris, Section Innocence Cases
Posted on Mon Jun 23, 2008 at 12:45:00 AM EST
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Manhattan's District Attorney, Robert Morgenthau, took some heat in an election contest for apparently prosecuting the wrong men for the 1990 shooting of a bouncer outside the Palladium nightclub. He asssigned Daniel Bibb to reexamine the case. Bibb reported that "the two imprisoned men were not guilty, and that their convictions should be dropped." Yet Bibb was told to defend their convictions in the face of strong evidence that the men were innocent. Was Morgenthau unwilling to concede a serious mistake for fear that voters might punish him?

Remarkably, Bibb admits that he defied his bosses and threw the case when the defendants asked for a new trial.

He tracked down hard-to-find or reluctant witnesses who pointed to other suspects and prepared them to testify for the defense. He talked strategy with defense lawyers. And when they veered from his coaching, he cornered them in the hallway and corrected them. “I did the best I could,” he said. “To lose.”

Bibb got his wish, and both men are free today. Bibb resigned in 2006. [more ...]

Did Bibb do the right thing? This is the textbook answer:

Stephen Gillers, a legal ethics professor at the New York University School of Law, said he believed that Mr. Bibb had violated his obligation to his client, and could conceivably face action by a disciplinary panel. “He’s entitled to his conscience, but his conscience does not entitle him to subvert his client’s case,” Mr. Gillers said. “It entitles him to withdraw from the case, or quit if he can’t.”

Opinions differ, but this take is right on:

Steven M. Cohen, a former federal prosecutor who pushed Mr. Morgenthau’s office to reinvestigate, said that while Mr. Bibb should have refused to present the case, his bosses should not have pressed him.
“If Bibb is to be believed, he was essentially asked to choose between his conscience and his job,” Mr. Cohen said. “Whether he made the right choice is irrelevant; that he was asked to make that choice is chilling.”

The by-the-book decision would have been a refusal to defend the case, even if he placed his job at risk. But Bibb knew that some other prosecutor would step in to fill the void, and he worried that the system wouldn't produce what he believed to be the correct result.

[H]e worried that if he did not take the case, another prosecutor would — and possibly win.

In that light, here's another point of view:

Mr. Mehler, the defense lawyer, said Mr. Bibb acted honorably. While lawyers on both sides must advocate for their clients, he said, “a prosecutor has an additional duty to search out the truth. I say that he lived up to that.”

You can understand why the defense lawyers were a bit unsettled by Bibb's assistance.

During breaks, Mr. Bibb confronted the lawyers when he felt they were not asking the right questions. “Don’t you understand?” one lawyer recalled him saying. “I’m your best friend in that courtroom.”

It's a tough call, but it was Bibb's to make and Bibb's to live with. If Bibb did the right thing for justice by shirking his duty as an advocate, he also did the right thing by resigning. How could anyone work for bosses who want to prosecute the innocent?

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Prosecutor Throws Case | 37 comments (37 topical)

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To me, the telling issue is (5.00 / 6) (#2)
by frankly0 on Sun Jun 22, 2008 at 11:51:32 PM EST

who, really, is "the client" referred to in this quote:

"He's entitled to his conscience, but his conscience does not entitle him to subvert his client's case"

I'm certainly not a lawyer, but in criminal prosecutions, isn't it "the people" vs the alleged criminal?

Well, what do "the people" really want: what the prosecutor's bosses say, or true justice?

That's an excellent point (5.00 / 3) (#3)
by TChris on Mon Jun 23, 2008 at 12:03:04 AM EST

but it is also true that Morgenthau, not Bibb, was elected to represent the will of the people. Nobody elected Bibb, so it is really a question of whether Bibb was correct to substitute his judgment for Morgenthau's. And if so, whether he was correct to subvert an adversarial system of justice to assure that, in his view, justice was done. In the end, who is to say what "the people" want? He did what he thought best.


: Problem was (none / 0) (#29)
by Iphie on Mon Jun 23, 2008 at 10:38:51 AM EST

that Morgenthau has been around forever and until his last election, hadn't really faced a strong challenger in decades. Morganthau has been in office during a time of enormous reduction in crime, and I don't think that people were paying close enough attention to the race -- they were for the most part satisfied with him. Aside from Morganthau's age, the issue that got the most play was the death penalty; Morgenthau is against it and Leslie Crocker Snyder (his challenger) is for it. In Manhattan, at least, that matters.
At the risk of behaving like the RBC by asserting what voter's really meant when they went to the polls, I have to say that had all of this information been available before the election, Morgenthau would have lost. I think voters in Manhattan would be more likely to side with Mr. Bibb on this issue -- this is the borough, after all, where opposition to the death penalty was a positive factor for a prosecutor.
I understand the questions about Bibb's ethical choice and his responsibility to his employer, but I certainly feel like his moral choice was the correct one.

As a former prosecutor, it seems to me (5.00 / 1) (#5)
by oculus on Mon Jun 23, 2008 at 12:19:59 AM EST

Bibb should have expressed his concerns to his superiors and, if he was not given discretion to dismiss the case in the interests of justice, hs should have requested the case be assigned to a different prosecutor, He should not have tried to throw the case or work w/t he defense during the trial. If he felt the DA or others in the office were violating the state bar code of conduct, he should report them to the state bar. Probably best to resign first though.

Isn't there any obligation to the truth? (5.00 / 1) (#7)
by dianem on Mon Jun 23, 2008 at 12:24:18 AM EST

I'm pretty sure there is something in the Constitution that says that innocent people shouldn't be in jail. Or does it only say that innocent people have to get a fair trial, and if they do and end up wrongly convicted then they should rot?

I have to admit that the legal section of the blog has been enlightening. I cannot imaging that anybody would expect someone to be prosecuted in the face of clear evidence that they were not guilty, and especially that anybody who did the right thing and refused not only to prosecute them but also to step aside so that somebody else could would be reprimanded. The one who should be prosecuted is the man who said that these people should be retried when the evidence said that they were guilty. This is creepy. Really, really creepy. It's not that I'm so naive that I assume that everybody will always do the right thing, but I do tend to assume that the system, overall, is designed that way, even if it doesn't always work.

: I don't know (5.00 / 3) (#9)
by Jackson Hunter on Mon Jun 23, 2008 at 01:11:16 AM EST

the exact quote, but wasn't it Scalia who said something to the effect of "Innocence is not necessarily a bar to a legal conviction."
Jackson

Another take... (5.00 / 5) (#10)
by DeanOR on Mon Jun 23, 2008 at 01:15:01 AM EST

Just my initial non-lawyerly reaction, but it seems to me that Bibb's action may be ethically equivalent to civil disobedience, which one resorts to in extreme circumstances where the established law and process is supporting an injustice - which was the case here. So I applaud him.

: Me too..... (5.00 / 1) (#19)
by kdog on Mon Jun 23, 2008 at 08:42:04 AM EST

When justice doesn't jive with the "rules", any human being of conscience throws the rules out the window.
Bibb saw an injustice, the system was ineffectual or worse, so he did what had to be done. He's a hero in my book.

Well, we certainly know what the people want. (5.00 / 1) (#11)
by Newt on Mon Jun 23, 2008 at 02:09:03 AM EST

The people want honest courts and true justice. Morgenthau may have been the one who was elected, but Bibb, as an employee of that office, is an extension of the peoples trust in Morgenthau. We the people expect our elected officials to do what's right. Seems like Bibb did what he could, given the situation. It would be better to resign over an issue like this, but hey, maybe he thought it wisest to stay there to fight another day.

Heartwarming Tale (5.00 / 1) (#12)
by creeper on Mon Jun 23, 2008 at 05:11:07 AM EST

It's amazing to find that there's anyone left in the legal system with a sense of justice and the will to act on it.

one could also argue that (5.00 / 3) (#13)
by cpinva on Mon Jun 23, 2008 at 05:17:14 AM EST

bibb is under no ethical or legal obligation to obey an unlawful order from his superior or his client. thus, refusing to re-prosecute, because he believed the underlying facts dictated that the person was innocent, would have been his recourse, because prosecuting an obviously innocent person is, itself, illegal.

if he truly felt that way, he should have resigned, and reported his boss to the state bar.

i'm sure that must have been just a tad disconcerting to the defense, how frequently does that happen?

Bibb's duty is different from defense counsel (5.00 / 1) (#18)
by befuddledvoter on Mon Jun 23, 2008 at 08:29:09 AM EST

In essence, as prosecutor he has no "client." Defense counsel has client. Bibb represents the state. the US Supreme Court has made clear that the duties and obligations of defense counsel and prosecutor are distinct.

Defense counsel has an unbriddled duty to zealously defend his client. Prosecutor has the duty to see justice is done.

Prosecutors, as "ministers of justice," have the
obligation to seek truth. As stated in Giles v. Maryland, 386
U.S. 66, 98 (1967) (Fortas, J. concurring), "[t]he State's
obligation is not to convict, but to see that, so far as possible,
truth emerges.

I'd say that. . . (5.00 / 1) (#21)
by LarryInNYC on Mon Jun 23, 2008 at 08:53:06 AM EST

he has the public, or the public interest, as his client. And I think he served it well -- although not as well as if he had publicized the mistake rather than relying on his somewhat chancy effort to throw the case, although may well have cost him his career rather than just his job.

Then again, I don't believe that defense lawyers ought to have an "unbriddled duty to defend their clients". Rather, they ought to provide the client with the best defense consonant with the truth and the law (notwithstanding the fact that it's sometimes difficult to know the law and often difficult to know the truth).


Of oucrse defense counsel's (5.00 / 1) (#23)
by befuddledvoter on Mon Jun 23, 2008 at 09:33:38 AM EST

duty to zealously defend means within the bounds of the law. Sorry for omitting that.


: No, no. . . (5.00 / 1) (#26)
by LarryInNYC on Mon Jun 23, 2008 at 09:45:12 AM EST

I wasn't suggesting that you were out of bounds. Just that I hold a different view from the generally accepted one. The generally accepted view (as I understand it) is that the defense counsel's responsibility is to attain a not guilty verdict for his client regardless of what the counsel knows to be the truth. That is, a defense counsel is expected to get a client off even if he or she believes the client to be factually guilty. I don't believe that the law should operate that way.

The system (5.00 / 1) (#22)
by Carolyn in Baltimore on Mon Jun 23, 2008 at 09:06:39 AM EST

A normal view of lawyers is that they're competitive and many want to win for winnings sake.

However ethically, prosecutors must share evidence they know of that point to innocence.

Seems to me this was an extreme case of the prosecutor sharing exculpatory evidence with the defense.

At any rate: I see him as a hero. As opposed to the many prosecutors who hide such evidence and leave innocent people in prisons for decades.

: the best thought: (5.00 / 1) (#24)
by Molly Pitcher on Mon Jun 23, 2008 at 09:38:03 AM EST

"However ethically, prosecutors must share evidence they know of that point to innocence.
"Seems to me this was an extreme case of the prosecutor sharing exculpatory evidence with the defense."

I think he fulfilled his duties (5.00 / 1) (#25)
by Arjun on Mon Jun 23, 2008 at 09:40:35 AM EST

Justice Ivan Rand of the Canadian Supreme Court said it best:

"The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings."

How many plea bargains (5.00 / 1) (#27)
by wurman on Mon Jun 23, 2008 at 10:31:16 AM EST

will "competent" defense counselers make in similar situations? The presumably innocent accused often take the plea offered because of the potential "gamble" involved in going to trial, especially in circumstances such as this.

If a zealous prosecutor (often running or preparing for re-election) insists on aggressive tactics, how is justice served?

tough case (5.00 / 1) (#28)
by txpublicdefender on Mon Jun 23, 2008 at 10:33:59 AM EST

I agree with the civil disobedience analogy. He had to know, though, that he was risking his career by doing what he was doing. Maybe the best thing would have been to track down all the witnesses and prepare the evidence that pointed to innocence, since that is not in conflict with his duty as a prosecutor, and then, withdraw from the case and resign, stating publicly and in open court what his reasons for the withdrawl were. I think that would have upheld his ethical responsibilities and still resulted in the just outcome that he desired.

Still, I can't imagine having been in his position, and I think his story makes for a good case study for ethics classes in law schools and prosecutor training programs around the country.

Bibb's best-selling book to follow. (none / 0) (#1)
by oculus on Sun Jun 22, 2008 at 11:48:20 PM EST

: sounds like he could use the money (none / 0) (#16)
by Molly Bloom on Mon Jun 23, 2008 at 07:51:25 AM EST

if the implication from the Times is correct concerning his ability to build a practice.

here's the (none / 0) (#6)
by Jeralyn on Mon Jun 23, 2008 at 12:23:44 AM EST

judge's decision tossing the convictions. The Dateline show on the efforts to overturn the convictions was good.

Wonder who (none / 0) (#8)
by oldpro on Mon Jun 23, 2008 at 12:46:36 AM EST

will play Bibb in the movie? No doubt he'd be the hero.

Reminds me of one of my favorite lawmovies..."And Justice For All" with Al Pacino as the liberal criminal defense lawyer who, like Bibb, gets put in an impossible situation and his conscience requires him to set aside his client obligation and reveal the truth.

He did the right thing (none / 0) (#14)
by Grace on Mon Jun 23, 2008 at 07:00:56 AM EST

all the way around.

He did the right thing by not prosecuting and he did the right thing by resigning.

He's my hero because he stayed with his principles on this.

He prosecuted (2.00 / 1) (#15)
by jimakaPPJ on Mon Jun 23, 2008 at 07:31:19 AM EST

but he threw the case.

His actions were essentially secret from his client, the people.

In this case his judgment may have been correct.

What happens next time?

He gamed the system and now we want to make him a hero?

I think not.


Hmmmm. (5.00 / 2) (#17)
by pie on Mon Jun 23, 2008 at 07:54:17 AM EST

He gamed the system...

He gamed the gamed system.


And as one of "the people".... (5.00 / 2) (#20)
by kdog on Mon Jun 23, 2008 at 08:46:48 AM EST

he was representing, I couldn't be more pleased with the job he performed on my behalf.

I'd bet dollars to donuts most NY'ers would agree that justice trumps a blind adherence to rules.


And what happens (none / 0) (#32)
by jimakaPPJ on Mon Jun 23, 2008 at 04:32:08 PM EST

when the system is gamed the other way??


Your example has (1.00 / 0) (#35)
by jimakaPPJ on Mon Jun 23, 2008 at 07:45:38 PM EST

nothing to do with the post. Said post being about trials....

Now, please go away. I have a headache and don't want to read your blatherings.


Ban you? (1.00 / 0) (#38)
by jimakaPPJ on Wed Jun 25, 2008 at 12:00:22 PM EST

Good heavens.

Your blatherings alone are worth the price of admission...


: Asking a person who is (1.00 / 0) (#41)
by jimakaPPJ on Thu Jun 26, 2008 at 07:34:12 AM EST

annoying you is blathering??
Didn't know that.
Now, go tell us how a 90MW solar power generator can replace a 900MW nuclear power generator.

It's gamed the other way... (none / 0) (#34)
by kdog on Mon Jun 23, 2008 at 05:32:00 PM EST

on the regular old friend.

The good guys won one because an individial broke the rules...lets enjoy it.


: Oh I'm not gonna (1.00 / 0) (#36)
by jimakaPPJ on Mon Jun 23, 2008 at 07:48:07 PM EST

jump out the window over it.... but if it's ok for him to work with the defense...
I think you see were I'm going..

well kdog, (none / 0) (#30)
by cpinva on Mon Jun 23, 2008 at 12:08:18 PM EST

that's the issue: could the same result have been obtained, had he followed the rules?

When the fate of an innocent human being.... (none / 0) (#31)
by kdog on Mon Jun 23, 2008 at 12:19:08 PM EST

is at stake, better safe than sorry.

I have little faith in the rules, apparently so did Bibb, and he should know.


: Just do your job (none / 0) (#39)
by jondee on Wed Jun 25, 2008 at 12:26:51 PM EST

and dont upset the status quo even if you know that what you are doing is causing unwarranted harm to others.
Hannah Arendt called that "the banality of evil" in another context.