Tuesday, June 24, 2008

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, was ordered to reexamine two men’s murder convictions because of new evidence. After an exhaustive 21-month investigation, Bibb became convinced that they were not guilty. But he couldn’t persuade his superiors to drop the cases, so he went in to the hearing and, in his words, threw the case. "‘I did the best I could,’ he said. ‘To lose.’"

He made sure that the exculpatory witnesses showed up at the hearing, told witnesses what questions he was going to ask them on cross-examination, and helped defense lawyers draw connections between different pieces of evidence when they weren’t getting it. All the while, he continued to ask his superiors to drop the cases. They agreed to do so for one of the men, and a new trial was ordered for the other. At that point, Bibb said, "I’m done....I wanted nothing to do with it." Bibb eventually resigned – although all he had ever wanted to be is a career prosecutor. Today he’s trying to start over as a defense lawyer.

There’s no doubt that what Bibb did was unusual. And there’s no doubt that he violated the usual role expectations of the adversary system, where lawyers never try to help the other side make their case even when they think the other side is right. But did Bibb do anything wrong?
Stephen Gillers, a nationally-renowned legal ethics expert, thinks he did, and might 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 worried that if he did not take the case, another prosecutor would — and possibly 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.

Before I explain why, let’s see what the ethics case against Bibb might be. Imagine that a private lawyer representing a private client did the same thing: located truthful but adverse witnesses, revealed his cross-examination, coached the opposing lawyers. And suppose his client lost. The lawyer did it because he thought the other side was right. First, there is no question that the lawyer could be sued for malpractice. As for ethics violations, the lawyer could be charged with violating the requirement of competency (Model Rule 1.1); the requirement that the client, not the lawyer, sets the goals of the representation (Rule 1.2(a)); the requirement of diligence ("zeal," although the Model Rules don’t use that word in Rule 1.3); and the conflict of interest provision (Rule 1.7). Conceivably the lawyer could also be charged with using client confidences against the client’s interests, if any of his conduct was based on confidential information from the client. In short, a mountain of ethics violations.

Presumably, the same could be said of a prosecutor (except for the confidentiality violation); and New York’s rules contain counterparts to all these ABA rules.

But there is a difference. Prosecutors aren’t supposed to win at all costs. In a time-honored formula, their job is to seek justice, not victory. It’s a mantra that appears in all the crucial ethics documents: in the current ABA Model Rules of Professional Conduct ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." Comment to Rule 3.8); in the previous ABA Code of Professional Responsibility ("The responsibility of a public prosecutor differs from that of the usual advocate: his duty is to seek justice, not merely to convict" (EC 7-13)); in the ABA’s Standards for the Prosecution Function ("The duty of the prosecutor is to seek justice, not merely to convict....", standard 3-1.2(c)). The ancestor of all these pronouncements is the Supreme Court’s dictum in a 1935 case, Berger v. U.S.:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim 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’ is a grandiose and vague word. (Holmes famously said "This is a court of law, young man, not a court of justice," and wrote that whenever someone starts talking about justice he knows that legal thinking has come to an end.) The actual ethics rules – as opposed to aspirational standards – take a pretty minimalist view of the prosecutor’s responsibilities. They shouldn’t proceed without probable cause, they should make a reasonable effort to ensure that the accused has been informed of his rights, they shouldn’t try to get an unrepresented person to waive rights, and they should do timely Brady disclosures. That's about it. It’s a widely recognized fact that a lot of prosecutors measure their success by their conviction rate. Fred Zacharias, a noted ethics authority, thinks that the "justice" prosecutors seek "has two fairly limited prongs: (1) prosecutors should not prosecute unless they have a good faith belief that the defendant is guilty; and, (2) prosecutors must ensure that the basic elements of the adversary system exist at trial." (That’s from his 1991 article "Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?,"44 Vand. L. Rev. 45, 49.)

And yet I’ve talked with a lot of prosecutors who take "seek justice, not victory" seriously, even if they aren’t 100% confident they know exactly what it requires. At the very least, they know it means that you shouldn’t try to 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 to deal with prosecutors' obligations when new evidence suggests that they obtained wrongful convictions. Rule 3.8(g) requires a prosecutor who learns of "new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted," to disclose the evidence to the proper authorities as well as the defendant, and initiate an investigation. And Rule 3.8(h) requires a prosecutor who receives clear and convincing evidence that a defendant was convicted of a crime he did not commit to "seek to remedy the conviction."

This rule is brand-new. It isn’t in New York's Code of Professional Responsibility yet, and it’s perfectly clear that the ABA wasn’t thinking of Bibb’s unorthodox tactics as the way a lawyer should "seek to remedy the conviction." But what, after all, did Bibb do wrong? He persuaded witnesses to show up in court and testify (against the state). Think for a moment about the alternative. Bibb was charged with investigating the case, and he did a yeoman’s job to locate the witnesses. Bibb "and two detectives conducted more than 50 interviews in more than a dozen states, ferreting out witnesses the police had somehow missed or ignored." Once he had these witnesses’ evidence, he was under an obligation to turn it over to the defense.

The alternatives: don’t investigate the case for fear you’ll find out that the guys doing 25-years-to-life are innocent; or, having investigated it, don’t turn over the exculpatory evidence to the defense, violating your constitutional and ethical obligations; or, having turned it over, put the defense to the difficulty of locating the witnesses and getting them 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 the evidence fits together, and weirder still to tell witnesses what you’re planning to ask them on cross examination. But how does that subvert criminal justice? How does that harm anybody or violate anyone's interests?

This is the real question. Steve Gillers says that Bibb subverted his client’s case. But who is his client? Bibb himself seems to think his client was Morgenthau, the DA, but that’s a misunderstanding. Prosecutors work for their boss, they don’t represent them. 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. It helps us to focus on the question of why the people or state of New York have an interest in two innocent men serving long prison terms. For that matter, wouldn’t the people or state be better served if the police couldn’t close the books on the Palladium killings, given that the real killers are very likely still at large? The fact is that Bibb didn’t harm any discernible interest of his client.

And don’t think that Bibb’s conduct is totally unusual. A former federal prosecutor tells me that prosecutors often throw cases at the grand jury stage, because they think the case stinks but they’re under political pressure to take it to the grand jury. That’s less conspicuous than Bibb throwing the case at the hearing, but morally it’s hard to see the difference; and if my former prosecutor friend is right, it’s how conscientious prosecutors operate.

In the interest of full disclosure: I’ve never thought that the adversary system is the mightiest engine of truth and justice ever devised. And I’ve always thought that lawyers who shrug their shoulders at injustices they cause and say, "Don’t blame me, blame the adversary system" are ducking their moral responsibilities. Blaming the system is the weasel’s way out.

But even if I’m wrong about the adversary system in general, the prosecutor’s role is different. To "seek justice, not merely to convict" means that prosecutors aren’t supposed to be the ruthless partisan warriors the adversary system presupposes. Bibb was in a tough spot – ordered, for whatever reason, to defend convictions that he thought were wrong. He became a conscientious objector on the battlefield. His way out was unusual enough to land him on the front page of the New York Times. But he did the right thing, and hopefully THAT isn’t unusual.


Thanks to David for allowing us to cross-post his views on this fascinating story. (Mike Frisch)


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There's a wonderful discussion in the comments section at the original post at Balkinization involving Marty Lederman and John Steele (of Legal Ethics Forum fame).

Posted by: Patrick S. O'Donnell | Jun 25, 2008 1:48:49 PM

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