by Anthony Barkow, Executive Director of the Center on the Administration of Criminal Law at New York University School of Law
A prosecutor’s primary obligation is to do justice. Daniel L. Bibb, a former Manhattan Assistant District Attorney who reinvestigated the 1990 murder of a bouncer outside the Palladium nightclub, thought he was doing just that when he deliberately lost the hearing in which he was told by his supervisors to defend the convictions of Olmedo Hidalgo and David Lemus, two men he believed to be innocent.
Some hail Bibb as a hero who performed honorably. Others have criticized him for violating his duty to represent the government zealously. Stephen Gillers, one of the nation’s leading legal ethics scholars, has pointed out that Bibb could face bar discipline for his conduct.
But the focus should not be on Bibb; it should be on the supervisors who Bibb says ordered him to defend the convictions after he concluded the defendants were wrongly convicted.
Bibb alleges that, despite his conclusion — based on his two-year investigation — that the men were innocent, he was ordered to argue in support of the convictions anyway, and let the judge decide what to do. If Bibb’s allegations are true, those who gave those orders committed an abuse of prosecutorial power. A prosecutor cannot and should not seek or defend a conviction if the prosecutor does not believe the defendant is guilty. No supervisor should instruct or pressure a prosecutor to do otherwise.
In all criminal justice systems, multiple decisions must be made before a person can be deprived of his or her liberty. A legislature must pass a law criminalizing conduct. The executive must conclude that the defendant violated the law. The judiciary must decide that enough evidence has been presented to permit a jury to decide the case. And a jury of the defendant’s peers must be convinced of the defendant’s guilt beyond a reasonable doubt. If Bibb is to be believed, his supervisors abdicated their role as a gatekeeper.
Every prosecutor’s office has layers of supervision. Supervisors ensure that office policy is followed, approve charging decisions, and make sure that line prosecutors are neither too zealous nor too willing to offer “sweetheart” deals. Regardless of one’s role, all prosecutors — whether on the line, in the supervisory office, or elected or appointed — have the same fundamental obligation: to do justice. No one in the prosecutor’s office should let concerns about professional advancement or office image affect decisions about right and wrong.
Bibb’s allegations of inappropriate pressure by supervisors to proceed despite his belief that the men were innocent should be investigated by an impartial body. If Bibb’s story is true, his supervisors should be ashamed of themselves. And they, not Bibb, should be subject to disciplinary action by the bar — and by voters.