Luban On New York Prosecutor Story
When a Good Prosecutor Throws a Case
David Luban
Should a prosecutor throw a case to avoid sending men he thinks are innocent to jail?
This story appeared in yesterday’s New York Times:a career prosecutor in New York City’s DA’s office, Daniel Bibb, wasordered to reexamine two men’s murder convictions because of newevidence. After an exhaustive 21-month investigation, Bibb becameconvinced that they were not guilty. But he couldn’t persuade hissuperiors to drop the cases, so he went in to the hearing and, in hiswords, threw the case. “‘I did the best I could,’ he said. ‘To lose.’”
Hemade sure that the exculpatory witnesses showed up at the hearing, toldwitnesses what questions he was going to ask them on cross-examination,and helped defense lawyers draw connections between different pieces ofevidence when they weren’t getting it. All the while, he continued toask his superiors to drop the cases. They agreed to do so for one ofthe men, and a new trial was ordered for the other. At that point, Bibbsaid, “I’m done….I wanted nothing to do with it.” Bibb eventuallyresigned – although all he had ever wanted to be is a careerprosecutor. Today he’s trying to start over as a defense lawyer.
There’sno doubt that what Bibb did was unusual. And there’s no doubt that heviolated the usual role expectations of the adversary system, wherelawyers never try to help the other side make their case even when theythink the other side is right. But did Bibb do anything wrong?
StephenGillers, a nationally-renowned legal ethics expert, thinks he did, andmight face professional discipline. “He’s entitled to his conscience,but his conscience does not entitle him to subvert his client’s case.It entitles him to withdraw from the case, or quit if he can’t.” Bibb,on the other hand, said that he didn’t withdraw because “he worriedthat if he did not take the case, another prosecutor would — andpossibly win.”
I have great admiration for Steve Gillers, but in this case I think he’s wrong. Daniel Bibb deserves a medal, not a reprimand.
BeforeI explain why, let’s see what the ethics case against Bibb might be.Imagine that a private lawyer representing a private client did thesame thing: located truthful but adverse witnesses, revealed hiscross-examination, coached the opposing lawyers. And suppose his clientlost. The lawyer did it because he thought the other side was right.First, there is no question that the lawyer could be sued formalpractice. As for ethics violations, the lawyer could be charged withviolating the requirement of competency (Model Rule 1.1Rule 1.2(aRule 1.3Rule 1.7).Conceivably the lawyer could also be charged with using clientconfidences against the client’s interests, if any of his conduct wasbased on confidential information from the client. In short, a mountainof ethics violations.
Presumably,the same could be said of a prosecutor (except for the confidentialityviolation); and New York’s rules contain counterparts to all these ABArules.
But there is a difference. Prosecutors aren’t supposed towin at all costs. In a time-honored formula, their job is to seekjustice, not victory. It’s a mantra that appears in all the crucialethics documents: in the current ABA Model Rules of ProfessionalConduct (“A prosecutor has the responsibility of a minister of justiceand not simply that of an advocate.” Comment to Rule 3.8EC 7-13Berger v. U.S.:
TheUnited States Attorney is the representative not of an ordinary partyto a controversy, but of a sovereignty whose obligation to governimpartially is as compelling as its obligation to govern at all; andwhose interest, therefore, in a criminal prosecution is not that itshall win a case, but that justice shall be done. As such, he is in apeculiar and very definite sense the servant of the law, the twofoldaim of which is that guilt shall not escape or innocence suffer. Berger, 295 U.S. 78, 88 (1935).
Admittedly,there’s a Delphic quality to “seek justice, not victory.” ‘Justice’ isa grandiose and vague word. (Holmes famously said “This is a court oflaw, young man, not a court of justice,” and wrote that wheneversomeone starts talking about justice he knows that legal thinking hascome to an end.) The actual ethics rules – as opposed to aspirationalstandards – take a pretty minimalist view of the prosecutor’sresponsibilities. They shouldn’t proceed without probable cause, theyshould make a reasonable effort to ensure that the accused has beeninformed of his rights, they shouldn’t try to get an unrepresentedperson to waive rights, and they should do timely Bradydisclosures. That’s about it. It’s a widely recognized fact that a lotof prosecutors measure their success by their conviction rate. FredZacharias, a noted ethics authority, thinks that the “justice”prosecutors seek “has two fairly limited prongs: (1) prosecutors shouldnot prosecute unless they have a good faith belief that the defendantis guilty; and, (2) prosecutors must ensure that the basic elements ofthe adversary system exist at trial.” (That’s from his 1991 article”Structuring the Ethics of Prosecutorial Trial Practice: CanProsecutors Do Justice?,”44 Vand. L. Rev. 45, 49.)
And yet I’vetalked with a lot of prosecutors who take “seek justice, not victory”seriously, even if they aren’t 100% confident they know exactly what itrequires. At the very least, they know it means that you shouldn’t tryto keep people behind bars if you think they didn’t do it.
And just this year, the ABA House of Delegates agreed. The ABA added two new Model Rules todeal with prosecutors’ obligations when new evidence suggests that theyobtained wrongful convictions. Rule 3.8(g) requires a prosecutor wholearns of “new, credible, and material evidence creating a reasonablelikelihood that a convicted defendant did not commit an offense ofwhich the defendant was convicted,” to disclose the evidence to theproper authorities as well as the defendant, and initiate aninvestigation. And Rule 3.8(h) requires a prosecutor who receives clearand convincing evidence that a defendant was convicted of a crime hedid not commit to “seek to remedy the conviction.”
This rule isbrand-new. It isn’t in New York’s Code of Professional Responsibilityyet, and it’s perfectly clear that the ABA wasn’t thinking of Bibb’sunorthodox tactics as the way a lawyer should “seek to remedy theconviction.” But what, after all, did Bibb do wrong? He persuadedwitnesses to show up in court and testify (against the state). Thinkfor a moment about the alternative. Bibb was charged with investigatingthe case, and he did a yeoman’s job to locate the witnesses. Bibb “andtwo detectives conducted more than 50 interviews in more than a dozenstates, ferreting out witnesses the police had somehow missed orignored.” Once he had these witnesses’ evidence, he was under anobligation to turn it over to the defense.
The alternatives:don’t investigate the case for fear you’ll find out that the guys doing25-years-to-life are innocent; or, having investigated it, don’t turnover the exculpatory evidence to the defense, violating yourconstitutional and ethical obligations; or, having turned it over, putthe defense to the difficulty of locating the witnesses and gettingthem to court – so, if they don’t succeed, the truth stays buried.THAT’s the ethical obligation of a public prosecutor?
Admittedly,it’s weirder to have the prosecutor remind the defense about how theevidence fits together, and weirder still to tell witnesses what you’replanning to ask them on cross examination. But how does that subvertcriminal justice? How does that harm anybody or violate anyone’sinterests?
This is the real question. Steve Gillers says thatBibb subverted his client’s case. But who is his client? Bibb himselfseems to think his client was Morgenthau, the DA, but that’s amisunderstanding. Prosecutors work for their boss, they don’t representthem. The court record says that a prosecutor’s client is the “people”or “state” of New York. That doesn’t help much, but it helps some. Ithelps us to focus on the question of why the people or state of NewYork have an interest in two innocent men serving long prison terms.For that matter, wouldn’t the people or state be better served if thepolice couldn’t close the books on the Palladium killings, given thatthe real killers are very likely still at large? The fact is that Bibbdidn’t harm any discernible interest of his client.
And don’tthink that Bibb’s conduct is totally unusual. A former federalprosecutor tells me that prosecutors often throw cases at the grandjury stage, because they think the case stinks but they’re underpolitical pressure to take it to the grand jury. That’s lessconspicuous than Bibb throwing the case at the hearing, but morallyit’s hard to see the difference; and if my former prosecutor friend isright, it’s how conscientious prosecutors operate.
In theinterest of full disclosure: I’ve never thought that the adversarysystem is the mightiest engine of truth and justice ever devised. AndI’ve always thought that lawyers who shrug their shoulders atinjustices they cause and say, “Don’t blame me, blame the adversarysystem” are ducking their moral responsibilities. Blaming the system isthe weasel’s way out.
But even if I’m wrong about the adversarysystem in general, the prosecutor’s role is different. To “seekjustice, not merely to convict” means that prosecutors aren’t supposedto be the ruthless partisan warriors the adversary system presupposes.Bibb was in a tough spot – ordered, for whatever reason, to defendconvictions that he thought were wrong. He became a conscientiousobjector on the battlefield. His way out was unusual enough to land himon the front page of the New York Times. But he did the right thing, and hopefully THAT isn’t unusual.
Posted 5:07 PM by David Luban [link]
Thanks to David for allowing us to cross-post his views on this fascinating story. (Mike Frisch)