Tuesday, June 24, 2008

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.


When I prosecuted in Florida, the duty to disclose evidence was nearly complete under the theory that the adversarial system only worked properly when all the facts were presented to the fact finder.

While it is pathetic that Bibb had to educate the defense counsel on how to use the evidence which he provided, Bibb did the right thing in getting the facts out

Prof Luban,

How do the 5.x rules factor in your analysis. We know that a subordinate lawyer can ethically do things she thinks are unethical if it the course of conduct represents a reasonable resolution of an arguable question.

Suppose, for example, a subordinate lawyer thinks that the evidence doesn't meet the high threshold a prosecutor should have before trying a defendant -- but the supervisory lawyer disagrees. Suppose further that the subordinate lawyer recognizes that reasonable minds could differ on that question.

Should the subordinate lawyer accede to the supervisor's orders and try the case, ask to moved to another case, resign from the organization, or secretly subvert the orders while pretending to follow them? The only answer I can't support is the last one.

John Steele

I want to try that again, with fewer typos.

Prof Luban,

How do the 5.x rules factor in your analysis? We know that a subordinate lawyer can ethically do things she thinks are unethical if it is in a course of conduct that represents a reasonable resolution of an arguable question.

Suppose, for example, a subordinate lawyer thinks that the evidence doesn't meet the high threshold a prosecutor should have before trying a defendant -- but the supervisory lawyer disagrees. Suppose further that the subordinate lawyer recognizes that reasonable minds could differ on that question. Finally, suppose that the law legitimately provides that the supervisory lawyer is entrusted with the final decision about going to trial.

Should the subordinate lawyer accede to the supervisor's orders and try the case, ask to be moved to another case, resign from the organization, or secretly subvert the supervisor's orders while pretending to follow them?

The only answer I can't support is the last one. It's deceit on the supervisor, deceit on the organization, and deceit on the court.

John Steele

What's far more likely is the Cape Fear/Max Cady Al Pacino/Out for Justice circumstance where the defendant is factually guilty but the defense attorney has a loophole he or she can offer to get a factually guilty man off free.

In that circumstance, should the defense attorney "bury the report" as did Sam Bowden?

A response to John Steele:

First, I think the 5.x rules don't much affect the answer. 5.2 says that even if the subordinate lawyer thinks it's unethical to go forward, he or she doesn't violate the rules by acceding to the supervisor's reasonable judgment to the contrary. It in no way indicates that the subordinate has to go forward, only that the subordinate can't be disciplined for going forward. In any case, I don't think that what the superior (Morgenthau?) asked Bibb to do was unethical in the technical sense of the rules. As long as there was probable cause (a pretty low standard), it was okay to continue to prosecute the two men. There is no ethical rule that says that a lawyer should not prosecute a case in which the lawyer is convinced that the defendant is not guilty; perhaps there should be. But, absent that rule, I don't see any of the 5.x rules being engaged.

You second set of points is really interesting. Let's assume that you're right, and Bibb's help to the defense was done secretly, without notifying his supervisor. In that case, there is no question that he was being deceitful to the supervisor, and presumably the organization. That is a conscience call - he stayed in the case because he thought that otherwise the organization would go ahead and try to keep two innocent men in prison, after he had spent 21 months trying to ascertain their innocence. Obviously, he must have thought that the organization was working a serious injustice, after he'd given his best non-deceitful shot at stopping it. The stakes were not triflling - 25 or more years of two men's lives. Bibb must have thought that in the balance of evils, the deceit was the lesser one. And I agree with him.

But, third, I don't see why you think this was a deceit on the court. Putting on honest witnesses (I'm assuming) to testify truthfully, with defense lawyers drawing legitimate connections between the evidence, and Bibb asking honest questions on cross (even if the witnesses knew what those questions would be) is NOT a deceit on the court. It's a trial that's closer to a search for truth than the alternative. Maybe you mean it's a deceit on the court because the court is assuming a real adversary hearing, and instead it's a bit of a charade. But it's a charade in an upside-down sense: it's the kind of trial that would have happened if the defense was better and more heavily resourced. In other words, it's a BETTER adversarial trial than it would have been if Bibb hadn't helped the defense.

If you consider that the burden of proof is on the State, this doesn't seem so strange. Any prosecutor could consider themselves reasonable, and if they cannot be convinced by their own reason that the defendant is guilty as charged, how can they justify any attempt to convince twelve citizens of something you don't believe?

The system is not balanced, but defense and prosecution could seek the same ultimate goal: due process. This is the ultimate standard which provides the ethical basis for both the defense and the prosecution.

What about the "gatekeeper" role of the legal profession? Consider on the civil side the burdens regarding the bringing of frivolous complaints. Shouldn't the same apply on the criminal side? We've all heard that a prosecutor can get a grand jury to indict a ham sandwich. Fortunately we have a pure food law, provided it is enforced. Like capitalism for the economy, the adversarial system is the best we got, although it may not search out the truth, with the result that sometimes "the law is a ass." Think of the code of professional responsibility and the obligation of an attorney not to violate attorney client privilege regarding knowledge that a non-client convicted murderer was actually innocent. The law is not "prefect."

David: I'm very uneasy with your response to John Steele.

The prosecutor here was the elected Manhattan D.A., who chose to go ahead with the prosecution. Let's look at that actor for a second. You quote Zacharias as saying that "prosecutors should not prosecute unless they have a good faith belief that the defendant is guilty." If the D.A. only thought there was probable cause, and not proof beyond a reasonable doubt, then it was wrong to go forward with the prosecution: There might not be any *ethical* rule that says that a lawyer should not prosecute a case in which the lawyer is convinced that the defendant is not guilty, but it's unconstitutional: a denial of due process. One should not be urging a jury to make findings that you don't think the evidence supports, when you represent the state and the jury's verdict will result in such a radical restriction on liberty.

But let's assume, as we must here, that the D.A. was not persuaded by Bibb, and concluded that the defendant was guilty beyond a reasonable doubt.

At that point, Bibb is acting as an *agent* of the D.A. If he firmly believes his supervisor was wrong, Steele is correct that he can -- perhaps should -- ask to be removed from the case, or resign. If he thinks the D.A. is willfully acting unlawfully, perhaps he should even make a stink about to the relevant authorities or in public.

But act as an unfaithful agent? Can the conscientously objecting soldier (your analogy) really try to "do the best he could to lose" the battle" by "secretly subverting the supervisor's orders while pretending to follow them"?

This may not be an ethics violation -- but it's a violation of one's contract with the principal, a violation of agency principles, and, as you concede, a fraud on the D.A.

None of which, of course, answers the moral question whether one should commit all of those wrongs in order to prevent what one sees as a miscarriage of justice. You appear to answer "yes." I'm pretty sure (but not certain) that I disagree.

Yes, one could imagine an egregious case in which Bibb is confident that the D.A. himself knows the defendant is innocent: Even then, my inclination would be to say that the proper thing to do is to resign and, perhaps, reveal the wrongdoing in an appropriate manner.

But Steele posited that "the subordinate lawyer recognizes that reasonable minds could differ on that question." If that's the premise, then why should Steele favor his own (sincerely held) views to those of his superior? Why is he so confident that his judgment is better? Shouldn't his presumption be that it's not, when to act otherwise would be to egregiously abuse his role of the D.A.'s agent?

All of which is to say that your description needs a richer account -- perhaps outside the realm of legal ethics -- for the complex dynamics of elected officials who must act through many folks who are supposed to be trusted agents of the principal. Bibb is not a lone wolf here: He is part of an *organization* acting on behalf of someone else. That complicates the picture, surely.

Might we contrast this with John Yoo in the role of subordinate lawyer at OLC?

In the day to day practice of law, there is much to be uneasy with. That's why we (or some of us) get paid the big bucks for the risks we take for our clients. (Like backdating stock options, pushing tax shelters, etc.) But when life or liberty is at stake, it becomes uneasier with matters of conscience to deal with.

Even Hamilton Burger, who prosecuted more innocent people than any DA, real or fictitious, would eventually agree to drop charges when Perry Mason proved the defendant innocent.

I'm comfortable with the adversary system from the defense point of view. But the state should have a higher standard. I'm appalled by prosecutors who oppose the introduction of evidence that might prove the innocence of someone they convicted, or a Supreme Court that rules that actual innocence is no bar to being executed as long as the defendant had a "fair trial".

Acknowledging this as pure hearsay, I have been told that NY has peculiar (and extremely minimal in relation to other states) requirements of criminal discovery. Can anyone opine on whether some/all of the information sharing might have occurred under more typical arrangements?

I am also curious as to the role that those rules, and whether they depart from the mean, would have an impact on the PR conclusions discussed above.....

My response to Marty:

1. Richer facts of the case would indeed be helpful. Bibb had been urging his superiors to drop the cases because the men were innocent. When the superiors nevertheless told him (rather thans someone else) to conduct the hearing, leaving him with prosecutorial discretion about how to conduct it, maybe they understood that he wasn't going to pull out all the stops. Maybe they felt that for political reasons they couldn't confess error on the cases, and solved their own moral problem by putting someone in charge of the case who (a) wasn't going to go to the mat to defend the previous convictions and (b) knew so much from his own investigation that he would be severely constrained by rules of honesty in what assertions he could make to defend the previous convictions. In other words, maybe Bibb was being a faithful agent, not a faithless one. (That would explain why he wasn't fired after the hearing; and he himself won't disclose his conversations with his superiors.) It would be interesting to know.

2. But let's assume for the sake of argument that he was indeed being a faithless agent of his elected-official boss. My two claims were (1) that he, not the boss, was closer to the prosecutor's ethical ideals as expressed in the official documents and - more importantly (2) that being a faithless agent of the DA is a lesser moral wrong than keeping two innocent men in prison for decades. You say you don't agree with me on (2), but I don't really understand why.

3. Part of the problem is the gap between what the minimalist ethics rules require (don't prosecute without probable cause) and what the "seek justice not victory" ideal requires (don't prosecute someone you think is innocent even if you have probable cause - indeed, even if and ESPECIALLY if you are sure you can win a conviction or a plea agreement). Let's suppose that both Bibb and Morgenthau agree that the probable-cause standard is met (that's easy), so no rule would forbid them trying to defend the convictions. And, as you say, let's suppose that Bibb is convinced they're innocent, Morgenthau disagrees, and that Morgenthau's side of the argument is not unreasonable. You think the subordinate should not substitute his reasonable judgment for the boss's. (Because the boss is elected? Or would you say the same thing if the boss was a political appointee?) I think that the most that follows from the superior-subordinate relation is that Bibb should think hard about whether he might be wrong. He should not be cocksure. Maybe he's gotten too invested in his own earlier investigation and lost his objectivity. Maybe he's overlooked something in the evidence that Morgenthau noticed. I agree that he MUST consider these possibilities.

But if, after considering them, he remains convinced of the men's innocence, I think he cannot in good conscience try to keep them locked up, and if he thinks that resigning will simply allow the DA's office to proceed with a terrible injustice, conscientious disobedience is the morally praiseworthy path.

4. My analogy to conscientious objection on the battlefield was, I now see, a bad one. The difference is that when the soldier conscientiously disobeys on the battlefield, the result may be catastrophic loss of life among his buddies, or military defeat. No analogy here to what Bibb did! Nobody is harmed by his conscientious disobedience. And, if you accept my proposition that the DA's "client" is the people of New York, and that the people of New York have an interest in freeing the innocent, Bibb's action has actually HELPED "his side" rather than helped defeat them. (I'm assuming, of course, that Bibb is correct about the men's innocence.)

5. Take a far more extreme case. One of the heroes of WW II was the German lawyer Helmut James Moltke. (There's a magnificent volume of his letters to his wife, LETTERS TO FREYA in English.) He worked in the German foreign office, and stayed in his job during the Third Reich in order to do what he could to mitigate the evils. (He also belonged to the anti-Hitler resistance who created the July 20 bomb plot; he was captured and executed in grisly fashion, maintaining his dignity and courage until the end.) Moltke managed to save lives - kind of a lawyerly Oscar Schindler, but without Schindler's other vices. Moltke was, in your terms, a faithless agent, but I can't bring myself to criticize his choice to stay in the foreign office rather than resigning. - Don't get me wrong: I am not trying to equate the NYC DA's office with the Third Reich! My point is that someone who stays in a job rather than resigning, and sabotages a real injustice that the office is doing (and does so, moreover, without harming anyone) has a lot to be said on their behalf. Calling them a "faithless agent" is true, but it is only one factor in the story.

6. Finally, I want to return to the specifics of what Bibb did. He facilitated the court making a better-informed judgment that was more likely to get at the truth. Normally we don't think that's a lawyer's role in the adversary system. But maybe that's a problem with the adversary system, not with the lawyer! My own essay "The Adversary System Excuse" (it's chapter one of LEGAL ETHICS AND HUMAN DIGNITY) and chapters 4 and 5 of my 1988 book LAWYERS AND JUSTICE examine the various arguments on behalf of the adversary system and concludes that they are pretty weak - and that the only reason for keeping the adversary system is that it isn't worse than the available alternatives. I also argue that when an institution is that weakly justified, it doesn't provide much moral cover for injustices that people work within the system. It seems to me that we can only be outraged at what Bibb did (roughly: break slightly from the role of one-sided advocate in order that the court reaches a better-informed decision) if we drink deeply from the Kool Aid of the adversary system excuse.

I'm not so sure about David Luban's claim that "[a]s long as there was probable cause (a pretty low standard), it was okay to continue to prosecute the two men." The ABA Criminal Justice Standards state that "[a] prosecutor should not be compelled by his or her supervisor to prosecute a case in which he or she has a reasonable doubt about the guilt of the accused." ABA Criminal Justice Standard, Prosecution Function, 3-3.9(c). Similarly instructive, for federal cases (which obviously Bibb's case was not), the US Attorney's Manual instructs a prosecutor to go forward with a case only if "he/she believes that the person's conduct constitutes a Federal offense and that the admissible evidence probably will be sufficient to obtain and sustain a conviction." It notes that "both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person probably will be found guilty by an unbiased trier of fact." USAM 9-27.220 commentary. Having served nearly 10 years as a federal prosecutor, I never knew a prosecutor who thought it ethically "okay" to prosecute someone only because there was probable cause to support a charge if he/she did not also believe that the admissible evidence at trial would prove the case beyond a reasonable doubt. Whether Bibb should have secretly scuttled the case is another issue, but that conversation should start from the supposition that a prosecutor should never be forced to pursue a case (initially or post-conviction) in which he/she personally harbors a reasonable doubt.

I appreciate the post and the reply to my comment.

First, I want to address a side issue about the threshold for taking a criminal case to trial. True, the Model Rules, at 3.8(a), appear to have a low threshold, but the comments to the rules point out that jurisdictions typically have higher standards and that the ABA Standards do too. Here, I agree with Jeffrey’s comment above.

Now, on to the main point. My assertion about the 5.x rules was not that the subordinate is required to proceed, but just that under my hypo no ethics violation occurs if she does proceed. At that point, the subordinate is left with the choice of being non-deceitful (my first three options) or resorting to deceit (the fourth option).

As you are aware, being deceitful is generally not an option under the rules (e.g., 8.3 & 8.4) and is deeply problematic even if one takes an external view. (I’d say it’s a non-starter under an external view of my particular hypo (where by definition reasonable minds can differ), but that’s a long discussion for another day.)

You appear to agree that the fourth choice is deceit on the supervisory lawyer on a significant issue that has been entrusted by law to the supervisor and a deceit on the institution.

You disagree on whether it’s a deceit on the court. You assume, correctly, that I’m asserting that it’s a charade on the court, or as it’s sometimes called, “collusive litigation.”

To quote the US Supremes, speaking a different context, “Such a suit is collusive because it is not in any real sense adversary. It does not assume the ‘honest and actual antagonistic assertion of rights’ to be adjudicated-a safeguard essential to the integrity of the judicial process’” United States v. Johnson, 319 U. S. 302, 305 (1943) (citations omitted).

Litigators have a duty of candor to the tribunal. They not only cannot engage in fraudulent conduct regarding the tribunal, they must remedy any such conduct regardless of who is doing it. (3.3(b)) I haven’t had time to research it, but I predict that the average, reasonable judge would find it collusive and fraudulent if she learned that the prosecutor was secretly meeting with the defense counsel to help them work up the defense. (As a thought experiment, imagine what a judge might say if the prosecutor revealed his conduct after the jury came back with an acquittal.) The court would not declare, "I commend trial counsel for providing me with a better trial." The court would more likely declare, "what made you believe a collusive, charade trial was acceptable?"

Prof Luban,

I hope it's not hijacking this thread to point out that over at my blog, Legal Ethics Forum, my co-bloggers are debating the recent review of your recent book.

John Steele

I'm in Asia at the moment, jet-lagged and time-pressed, but David was kind enough to send me notice of his post and I want to reply. Forgive me if I repeat what others have said but I haven't had opportunity to read all the comments and I've just gotten off a 19 hour nonstop flight.

Steve Lubet and I both posted comments on the Times site - the Times invites comments on some articles for about a day after they appear. And I think I can speak for Steve in saying that we agree. But let me summarize briefly where I think David goes wrong and if Steve is lurking somewhere out there, he can chime in.

1. Morgenthau speaks for the client, the People. He was elected not Bibb. It is analogous to a CEO or Board speaking for the company. Imagine the situation if each line or midlevel assistant could ignore superivsor's decisions and choose for themselves what justice required! Therer are hundreds of assistants in the office. So absolutlely Bibb violated his client's direction as conveyed by the person or his designated subordinates (Bibb's bosses) with authority to make decisions. The buck has to stop somewhere and it stops with the elected D.A., who has final discretion.

2. David perhaps implies and some other comments elsehwere have explicitly assumed that this is a situation where the 'right' thing was to vacate the convictions and that that was apparent at the time Bibb acted. But that is not so at all. This is a key fact. We all know that lawyers can view the inferences from evidence differently. Bibb had opportunity to forcefully express his views to his bosses and he was overruled. This goes back to #1. He had then to obey or seek to be relieved. He could not, as he said he did, choose to go on with the case in order to make sure his office lost, becasaue he was fearful that a new assistant might take the case and win.

3. Would David support a Bibb-like act in the next case if another assistant threw the case honestly convinced that it is what justice required, ignoring contrary instruction, and it turned out that the freed person really was factually guilty? We law professors have the luxury of living in a more or less hierarchy- free world, but in the 'real life' of big law offices, including government ones, hierarchy is process.

4. It would be different if Bibb were asked to do something in violation of legal ethics rules or law and courageously refused and did the opposite. It may be how he would like to see it.But that is not the case at all. There would also be other remedies in that instance. Here, however, his bosses simply read the results of the investigation differently from the way he did and no one suggests, and the article does not imply,that their different view was not plausible. This situation must be analyzed on the assumption, not contradicted by the article or anyone (except perhaps the defense lawyers), that Bibb and his superiors held different views of the facts and both views were reasonable.

I hestitate to disagree with David. We rarely do disagree, I think. His post made me think hard about my views here. But for me this is an easy case. Perhaps David can respond to my questions above. Perhaps this case should be a AALS panel discussion.

This has turned into such an interesting thread that I will reprint and respond to several of the posts in a separate post - but not tonight!

Thank you for this useful dialogue! I have some questions for the follow-up post:

1. As per Steven Giller's post, to what extent should it matter that the prosecutor making the moral decision is factually correct? Prof. Gillers assumes that innocence is underdetermined, and therefore we can't give the prosecutor the discretion to throw the case. Another argument is that innocence is determinable and that we will judge the prosecutor based on whether he is right or wrong on the issue. What do you think?

2. On the issue of deceit, should he have been up front about his point of view to the judge? I don't think Prof. Luban should be so quick to take back the conscientious objection analogy, but I'd use it in a different way. The distinction I would make is that between conscientious objection and civil disobedience. Conscientious objection is a private decision, based on private morality. Civil disobedience is a public decision, based on universal morality, for which the objector is willing to pay the consequences. (Arendt and Rawls both draw this distinction). Here what the prosecutor did is in some ways more like conscientious objection (not public) and in other ways like civil disobedience (taking a public stand after the fact). It seems to me the problem is with the acts that are more like conscientious objection - the secrecy - rather than with whether the trial was a show or truly adversarial.

3. As for ameliorating a broken system from within, what of the danger of complicity? Is an actor with good intention in a wrongheaded system free from moral complicity? Quitting is a little too clean, because it leaves the problem for another lawyer to solve. But what if he had instead testified for the defense? It seems that the universe of options is greater than either quitting or secretly throwing the trial.

From the facts offered here are that the prosecutor expressed his opinions and reasons for them to his superiors clearly, emphatically and repeatedly well in advance of the trial.

I wonder why his superiors did not take him off of these cases.

I wonder if any of them watched any of the trial.

I wonder if in the view of the superiors there was a political need to do one thing and a professional obligation to do something else in an unusual way.

I do not know the extent to which this may be relevant, but I think that in both the UK and the USA, the prosecution role is to serve the purposes of justice, not to "win at all costs". The Courts speak of the role of prosecution counsel being that of "the minister of justice".

We have perhaps the advantage of a much greater degree of separation between those who prepare the case (in the UK, the Crown Prosecution Service) and those who act as Counsel in Court at the trial.

From the moment the prisoner is put in charge of the jury, it is Counsel in the courtroom who has the conduct of the case and there is strong tradition that the ultimate decisions as to the conduct of the prosecution in the Court are for him, not for the back office.

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