Prosecutor Throws Case
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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