Topic: Media

The Case of the Conflicted Prosecutor

Expect this story to be used on “Law and Order.”

Faced with being ordered by his superiors to prosecute two men who he had become convinced were innocent, Assistant Manhattan District Attorney Daniel L. Bibb “took a dive,” in prize fighting parlance. He lost their trial on purpose, in the interest of justice.

Was he ethical?

Bibb obviously thinks so, which is why he has come forward now to admit throwing the 2005 re-trial of two men convicted and imprisoned for a shooting outside a nightclub in the 1990’s. Bibb had researched the case for more than two years, and told the District Attorney that his findings, combined with the new evidence that got the men their new trial, had persuaded him that the men were wrongly accused. But his bosses didn’t agree.

So Bibb helped the defense, under the table. He tracked down missing or reluctant witnesses who implicated other suspects, then he coached them to testify for the defense. He gave tactical advice to the defense attorneys. If they made a blunder in court, he refused to exploit it. Cross-examining defense witnesses, Bibb was careful not to damage their credibility. In his cross of a former gang member who had pleaded guilty to six murders, for example, he glossed over his rap sheet, though any other prosecutor would have made it the centerpiece of his impeachment efforts.

After the defendants were acquitted and freed, Bibb resigned from the District Attorney’s office. His claim to ethical conduct rests on one principle and one rationalization. The ethical principle: prosecutors are charged with seeing that justice is done, not just winning the case. The rationalization: if Bibb had refused to accept the case, another prosecutor would have taken over, and might have won a conviction. The only way to achieve certain justice was for Bibb to take the case and lose.

We can discard the rationalization first. Bibb had decided he was a one-man justice system, and he isn’t. No man is, in this country. His certainty that a given result was the only just one was no more valid than that of a defense lawyer who is certain her client is innocent. She cannot manufacture evidence or suborn perjury just because she’s “sure” that she is on the right side. The job of determining which side prevails belongs to judge and jury. Bibb’s subversive actions did as much to deny a fair trial as lying witnesses and fake evidence would have done. If another prosecutor, doing his or her job — that is, representing the position of the City vigorously and honestly under the law — would have obtained a conviction, then that would be a legitimate result. One individual’s heartfelt certitude must not and cannot be permitted to trump the entire justice system.

As for the legal principle, Bibb is far, far off the mark. Making sure that justice is done does not suggest or justify vigilante prosecutors.

American Bar Association Model Rule 3.8 (h) reads…

When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. 
That’s what Bibb did when he tried to persuade the Manhattan DA that charges should be dropped…. “seek to remedy the conviction.”  But the attorney for the City was Robert M. Morgenthau, Bibb’s superior, and he obviously was not similarly convinced. Unless Bibb knew for a fact that Morgenthau agreed that the men were innocent and was re-trying them anyway, and there he has never suggested that he thought or suspected this, then Bibb had one, and only one, course of action that was and is ethical under the professional ethics rules He could have refused the case, and, if necessary, quit the office. He could not, under any ethical standards known to the profession of law, continue to represent the city yet assist the City’s adversaries. That is a breach of loyalty, a conflict of interest, and dishonest, however sterling his motives may have been. Lawyers have an ethical duty to represent their clients’ interests as their clients see them, not as the lawyers would like them to be. When a lawyer believes that a client wants something that the lawyer finds repugnant or imprudent, then the lawyer may withdraw (Model Rule 1.16). That was Bibb’s situation.

What he did was an unequivocal, impermissible, bright-line violation of the duties of a lawyer, and deserves the harshest penalty that the bar disciplinary committee can devise. Remember “Cape Fear”? Defense attorney Nick Nolte had intentionally botched his defense of his client, a violent rapist (Robert De Nero), sending him to prison because Nolte thought his client was a menace to society. As the movie proves, Nolte was right about De Nero, but he was still a disgrace to the legal profession. It wasn’t Nolte’s job to condemn his own client, just as it wasn’t Bibb’s job to single-handedly make sure the men he was assigned to prosecute went free. Both attorneys’ actions were betrayals of their clients and a justice system the attorneys had sworn to serve.

But did Bibb do the right thing?  That’s a different question. He believed, apparently beyond any doubt, that justice demanded that the two men be acquitted. He did not think that justice was certain enough to occur without his help, so he violated his oath and his professional standards to get the imprisoned men exonerated. That was noble and courageous. I would have no ethical problems with his conduct if he had admitted what he had done the second the trial was over. Then his message would be, “Take my law license if you want; I would do this again. Two innocent men had to be freed.” Bravo. But he didn’t do that. He waited until now; he ducked his accountability. He covered up his professional ethics violation with silence, and that was wrong.

The ethics verdict on Daniel Bibb is a split decision. He made a courageous decision, and two men, apparently unjustly imprisoned, can thank him for their freedom. He did one of the hardest things an ethical person can do: break the rules in the interest of doing the right thing. But Bibb also shattered a core principle of the practice of law: loyalty. Never undermine your client. And in doing so, he breached another: candor. If you are going to do something your client won’t want you to do, you must reveal it first. These two professional violations constitute a major betrayal of trust, and ought to disqualify Bibb from the practice of law.

He’s a good man. He’s just not an ethical lawyer.

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