Truth, Justice, and the American Way

June 26, 2008
Posted by Jay Livingston

“How can you defend those people?” That’s a question people often ask defense lawyers, especially public defenders, who can’t very well say that they’re in it for the money.

But with all the stories of the exonerated, we might also ask how district attorneys can prosecute people who are innocent, and continue to prosecute them even in the face of exonerating evidence.

The answer is the same for both. If you want to understand what people do and even what they think, look at their roles in the system.

Case in point (and in a story in Monday’s Times):

In 1990, a bouncer is fatally shot outside The Palladium at Union Square. Two men are eventually convicted and sentenced to 25 years. In the next decade, new evidence emerges that two other guys did it. The DA asks prosecutor Daniel Bibb to review the case. Bibb investigates and becomes convinced that the convicted men are innocent.

What will the Manhattan DA’s office do?

If you said “release the innocent dudes,” lose a turn and go back three spaces.

“Top officials told [Bibb] . . .to defend the case anyway.”

The reason you lost a turn (if you did) is that you forgot that in the US, we handle criminal cases on an adversarial model, a contest between two sides, rather than as a search for truth and justice. In this system, the lawyers on each side are supposed to fight for their clients.

But Bibb didn’t fight for his client, which is why the story is newsworthy. He tanked, threw the case. He helped the defense as much as he could – tracked down witnesses, went easy in cross-examination, told defense lawyers when they weren’t asking the right questions. At the judicial hearing on the case, he “lost.” One man had his conviction dropped; the other was granted a new trial and eventually acquitted.

Truth and justice may have been served, but apparently what Bibb did was a no-no.

“He’s entitled to his conscience, but his conscience does not entitle him to subvert his client’s case.” So says Stephen Gillers, a professor of legal ethics at NYU Law.

Bibb’s client was the DA, and the client’s case was to have the convictions upheld. If Bibb didn’t want to work for that goal, he should have taken himself off the case. That way, they could have assigned it to some other prosecutor who would do all he could to keep the innocent guys in jail.

I had thought that prosecutors were also supposed to be concerned about the truth, and perhaps they are. But apparently their role in the adversarial system outweighs that consideration. That role also shapes their perceptions. Their investigator, Bibb, spent nearly two years searching for the truth about the crime, and he concluded that the men were innocent. Nevertheless, the DA’s office “has said it had good reason to believe that the two men were guilty.”

And Bibb? He left the DA’s office, understandably. He’s now a defense lawyer, but his disloyalty has damaged relations with his former colleagues, and those relations are important for defense lawyers. A lot of their work requires them to make deals with prosecutors.