Criminal Justice

Doubting Prosecutors

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So you're a prosecutor. Your boss, the district attorney, asks you to prosecute a case in which you strongly believe the defendants are innocent. What do you do?  Assume that the DA's decision to prosecute is based on a good-faith belief in the defendant's guilt, and there's no evidence of evidence hiding or other extra-legal malfeasance.

I'm not sure that this guy's approach was the correct one, but it sure makes for a fascinating story (for those of you who don't want to click through and read—he took the case, then surreptitiously helped the defense lawyers—and deliberately lost the case in court).

But I'm not sure what the correct course of action should be, either. I'm tempted to say you resign in protest, then tell the defense team what you know. But what if sticking around for a bit longer could help you get access to more information confirming the defendants' innocence—information that would likely be left undiscovered were you to resign?

Discuss.

NEXT: The Puppetmasters

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  1. Wasn’t this the plot for “Sleepers” with Brad Pitt?

  2. This is why I don’t vote for anybody for DA. I think you’d have to be a sick fuck to want that job.

  3. Without RTFA…

    You don’t resign. You simply tell your boss that you can’t take the case because you don’t believe in its position. Then you, completely aboveboard, inform the defense of what you know that might help it.

    If the DA balks about any of that, then you resign and bring a civil rights suit against the office.

  4. Yeah, I can’t say I agree with the subversive nature of this instance. He should resign as publicly as possible before the case, and work to stop any wrong doing.

    But just as a defendant deserves his day in court, the DA and victim’s families do as well. You don’t combat corruption with corruption, because you lose your moral high ground.

  5. MikeP has about the right idea. The only plus to the method in which he went about it, not having RTFA, is that the defendant most likely cannot be tried again. He had adequate representation and the DA’s office would have a hard time convincing a judge to retry.

    Now to RTFA and see if I am wrong.

  6. You don’t resign. You simply tell your boss that you can’t take the case because you don’t believe in its position. Then you, completely aboveboard, inform the defense of what you know that might help itnext prosecutor so as to better help him/her make a decision as to whether they should take the case.

    If the DA balks about any of that, and goes through an entire office of prosecutors who are unwilling to take the case, then you resign and bring a civil rights suit against the office.

    A few tweaks is all.

  7. Wow! A prosecutor with a conscience?!

    Thus explaning why he’s an EX-prosecutor.

  8. Nuke him from orbit. It’s the only way to be sure.

  9. Seeing that a prosecutor’s job is (supposedly) to seek justice and not just convictions, you could say that he did exactly that. The only reason he didn’t withdraw charges himself was that his superiors didn’t want him to. So he found another way.

    Within the (supposed) ethics of the legal profession, this is a bit dubious. Within the ethics of human beings (which excludes lawyers, that’s why they have their own ethics) this is fine.

  10. MikeP said:

    bring a civil rights suit against the office

    On what grounds? The DA can elect their own interpretation of the evidence.

    The problem here is that as soon as you rat out your boss in public (which is what you’d be doing by giving overt assistance to the defense), you put your whole career in jeopardy. Yes, at a minimum, the ADA should refuse the case and then seek other employment since they have a fundamental moral disagreement with their employer. But should they be self-sacrificial? That’s a deeply personal decision.

  11. I think the prosecutor’s actions were completely in keeping with his duty to seek *justice* rather than convictions.

  12. On what grounds? The DA can elect their own interpretation of the evidence.

    On the grounds that the DA (a) did not allow a prosecutor not to take a case he did not believe in and/or (b) did not allow a prosecutor to discuss truthful evidence with the defense.

    I would think that the usurping of either of those should be outside the powers of a DA and that they run directly against the rights of the accused and the interests of the state to reach a just decision.

    But should they be self-sacrificial? That’s a deeply personal decision.

    Agreed. That’s why it would be nice to see the (a? any?) DA’s office so interested in justice that it not only tolerated but supported such actions.

  13. Within the (supposed) ethics of the legal profession, this is a bit dubious. Within the ethics of human beings . . . this is fine.

    I haven’t RTFA but I think I agree with this for the most part. I’m more concerned with the overall result of not prosecuting an innocent person than strict adherence to the legal profession’s ethical guidelines. Sure, in a perfect world he should either resign or refuse the case, but as MP noted this kind of self-sacrifice is asking an awful lot. So while it might be preferable if someone was willing to do it above-board, I wouldn’t hold it against anyone who felt that was professional suicide and chose to go the more surreptitious route.

    I think another question is how convinced is the prosecutor of the defendant’s innocence? The more sure he is the more I’d want him to stay on the case to make sure it doesn’t simply get handed off to someone else to prosecute and to make sure he gets access to as much evidence as possible.

  14. to seek justice and not just convictions

    What is this word “justice” you use?

  15. “I’m your friend and I’m telling you, I don’t think your clients belong in jail but I don’t get to make that call. I represent the government of the United States without passion or prejudice and my client has a case.”

  16. Yeah, Jack… That line came to my mind too.

  17. I loved Justice! She was $4,000 a night as I recall, and worth every penny.

  18. Maybe the prosocuter gave up a little moral high ground, but hey, we’re talkin’ about lawyers here. The high ground can’t be much of a hill. And, deep down, doesn’t it just give you a warm feeling to see the DA take it in the shorts?

  19. Just refuse to take the case. He should only be “helping out” the defense to the extent it involves providing exculpatory evidence (as is constitutionally required), rather than the prosecutor’s mental impressions and trial strategies.

  20. Mr. Bibb-

    BRAVO.

  21. “I’m your friend and I’m telling you, I don’t think your clients belong in jail but I don’t get to make that call. I represent the government of the United States without passion or prejudice and my client has a case.”

    You’re a lousy fuckin softball player, Jack!

  22. This is why there needs to be spending parity, on a case by case basis for prosecution and defense. It doesn’t sound like Mr. Bibb was secretly turning over wrongly withheld exculpatory evidence. It sounds like Mr. Bibb was just providing regular old lawyering services to the defense.

  23. Attorney’s have a duty to be “zealous advocates” for their clients. When you’re a prosecutor, your client is the government. Taking a dive might be an ethical violation, just as it’s an ethical violation for a criminal defense attorney to take a dive in order to let a factually guilty defendant be convicted when there’s a procedural defense (e.g., statute of limitations or exclusionary rule).

  24. This is why there needs to be spending parity, on a case by case basis for prosecution and defense.

    I think you can make a good case for pay ceilings for lawyers, on the basis that they essentially derive their power from the State’s monopoly on violence.

    No one would care which lawyer won the case if there weren’t guns behind the court.

  25. Seeing that a prosecutor’s job is (supposedly) to seek justice and not just convictions, you could say that he did exactly that.

    But what if, by the letter of the law, they were guilty as charged? If he had moral qualms about trying the case, he should have made that clear to the DA; if not, he should have plainly laid out the state’s evidence, and let the chips fall where they may. If he truly believed that the man was innocent, then laying out the facts truthfully should be able to make that clear to a jury (unless the defense was utterly incompetent, which is another issue).

  26. No one would care which lawyer won the case if there weren’t guns behind the court

    Layman! For most lawyers, they’re are no stakes too trivial to be left uncontested.

  27. Attorney’s have a duty to be “zealous advocates” for their clients. When you’re a prosecutor, your client is the government.

    I thought prosecutors represent “the people,” not the government. But regardless of whether the DA’s client is the government or the people, what does it mean to be a “zealous advocate” for them? I think a guilty defendant has an interest in avoiding punishment for his crime, so being a zealous advocate for the defense means trying to exonerate your client regardless of his guilt or innocence. But the government (or the people) don’t have any interest in putting an innocent person in jail–so being a zealous advocate for that side might mean working for a conviction, or it might mean working against it.

  28. Mr. Bibb spent nearly two years reinvestigating the killing and reported back: He believed that the two imprisoned men were not guilty, and that their convictions should be dropped. Yet top officials told him, he said, to go into a court hearing and defend the case anyway.

    That “never surrender”, “convict everyone” attitude is at the core of what makes just about ever DA in the country a bottom-feeding scumbag.

    I don’t have the first clue as to how we should go about changing that.

  29. Defense atty is duty bound to defend client. Prosecutor is duty bound to seek justice. Prosecution is duty bound to reveal exculpatory evidence if aware of it. Defense is not obligated to reveal incriminating evidence (I think it might be unethical to do so.)

  30. Justice getting done is the responsibility of the District Attorney, not the prosecutors who work for him or her. Rather, they have the same duty as other attorneys, to serve their client (the DA) and act in accordance with the client’s wishes, regardless of their personal feelings.

    If they can’t do that, they have no option but to remove themselves from the case (as defense attorneys also do when they have severe differences with the client).

  31. Complicated, to say the least. I’m troubled by the fact that he would have to so overtly “help” the defense, though. If there was poor evidence, or evidence that would help the defense, this would already come under disclosure rules. I guess my only concern here is that if an D.A. “manipulates” a case for “good”, what’s to stop one from “manipulating” one for bad. Good and bad being subjective and relative terms, of course.

  32. C:\Pot
    So the DA is the boss and gets to call it? Prosecutor works for the DA and has to go along?

    And, I guess the DA decides what evidence is exculpatory and gets shared with the defense?

    (You seemed pretty clear, so I’m asking, not challenging.)

    And then, I guess if this guy (Pitt, was it?) is sure the DA is wrong, and is withholding exculpatory evidence, then he can decide if he wants to be a “whistleblower”, but was remiss in his duty to do things the way he did?

    x

  33. Seeing that a prosecutor’s job is (supposedly) to seek justice and not just convictions, you could say that he did exactly that. The only reason he didn’t withdraw charges himself was that his superiors didn’t want him to. So he found another way.

    I would agree with his. Prosecutors are supposed to seek Justice, not convictions at all costs. If this guy genuinely thought the defendants were being railroaded and his own office didn’t care, I have no problems with his actions — in fact I respect and admire them.

    Prosecutors represent The People, not their direct boss. I don’t think an underling should be forced to do nothing (or be relegated to merely resigning in protest) when he sees what he considers to be an injustice occurring.

  34. Related to what Paul said, if there are weaknesses in the case isn’t the prosecutor required to disclose? Granted, not every prosecutor will perceive the strengths and weaknesses of the case in the exact same way, so some might make different judgment calls, but if this guy is pretty sure that the defendants are innocent I’d think he could make that point in court by handing over the evidence and highlighting the ways that it supports the defense. Then he doesn’t have to sneak around.

    Of course, I’m not a lawyer, so maybe there are aspects to this that I’m missing.

  35. Of course, I’m not a lawyer, so maybe there are aspects to this that I’m missing.

    It doesn’t sound like Mr. Bibb was secretly turning over wrongly withheld exculpatory evidence. It sounds like Mr. Bibb was just providing regular old lawyering services to the defense.

    Time to turn off the INCIF!

  36. What this guy did went far beyond disclosing evidence.

    If this happened in a police brutality case, everyone here would be up in arms about the prosecutor compromising his case to protect the officers.

  37. C:\Pot> makes a good point.

  38. If this happened in a police brutality case [blah, blah, blah]

    hahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahaha . . .

    “if”!?!?

  39. Actually, maybe I should open an alternate question up for debate: if a DA decides to prosecute cops for manslaughter in one of these no-knock SWAT raids, and the prosecutor he assigns to the case helps the cops’ attorneys and avoids harming the credibility of their witnesses during cross-examinations, would you all be applauding him for serving justice and obeying his conscience?

  40. Actually, maybe I should open an alternate question up for debate: if a DA decides to prosecute cops for manslaughter in one of these no-knock SWAT raids, and the prosecutor he assigns to the case helps the cops’ attorneys and avoids harming the credibility of their witnesses during cross-examinations, would you all be applauding him for serving justice and obeying his conscience?

    You mean if some cops were falsely identified as the cops involved in the raid, but really weren’t involved, you mean?

  41. Double word to C:\Pot. Whenever you get these kinds of where-do-we-draw-the-line questions, it always helps to clarify with a circumstance you know you wouldn’t be comfortable with, yet can realistically be seen as the same thing.

    I guess I see this through the same lenses I see driving: If your maneuver or parking is questionable, it’s probably illegal.

  42. Dave W,

    Try writing a law or a code of ethics that distinguishes between the two cases in an objective way.

  43. I thought prosecutors represent “the people,” not the government.

    FOOL! WE ARE THE PEOPLE!

    DO NOT QUESTION US!!

  44. would you all be applauding him for serving justice and obeying his conscience

    A good question, and one of course controlled by our biases. For me, I always want a prosecutor to err on the side of the defendant. But cops, by attacking people (no-knock raids), have, in a way, changed these roles somewhat.

    I don’t want an innocent cop going to jail for a valid split-second decision. However, if he got himself in a situation by agreeing to violently raid non-violent people’s homes in a military manner, I stop caring.

  45. C:/Pot,

    def var codeofethics as char.
    assign codeofethics = “Respect the truth.”

    repeat:
    display codeofethics.
    end.

  46. Try writing a law or a code of ethics that distinguishes between the two cases in an objective way.

    here’s the way I look at it, personally:

    having the prosecuting attorney help the defense attorney is: (i) bad when the same amount of money is being spent on the defense lawyers as prosecution lawyers; (ii) less bad when less money is being spent on the defense lawyers than prosecution lawyers; (iii) much, much less bad when much, much less money is being spent on the defense lawyers than prosecution lawyers. what the crime is doesn’t figure into my personal sense of ethics on this.

    To apply this to your police brutality hypo, it would depend on what kind of counsel FOP was springing for.

  47. Epi,

    As much as I agree with the “better 10 guilty go free than one innocent go to jail” ideal, it is important that as many truly guilty people be convicted as possible. Otherwise the law is made a mockery. Beyond sharing exculpatory evidence, the prosecutor has to give his or her all to the state’s case. There are oodles of safeguards built in already that favor the defense.

  48. assign codeofethics = “Respect the truth.”

    I’m not sure everyone will agree on what that means.

  49. Dave W,

    Money couldn’t buy the help this guy gave to the defense. In any case, since the money gap between prosecution and defense seems to be your new hobbyhorse, what with high corn prices choking the HCFS-industrial complex, I’d recommend you work on getting that situation fixed separately, without castrating the prosecution.

  50. Money couldn’t buy the help this guy gave to the defense.

    Disagree strongly on that. RTFA. If these guys had OJ’s defense team (or at least its survivors), then they would have known all the things Mr. Bibb told them w/out Mr. Bibb telling them.

    In any case, since the money gap between prosecution and defense seems to be your new hobbyhorse . . .

    I have been suggesting mandatory spending parity for prosecution and criminal defense for a long time here at the HnR. Back in the day Karen and I used to mix it up over that proposal back in tha day. I would go back and show you, excepting one sad day Mr. Balko got his panties in a bunch and deleted all my old posts here.

  51. If these guys had OJ’s defense team (or at least its survivors), then they would have known all the things Mr. Bibb told them w/out Mr. Bibb telling them.

    I did RTFA, and that’s nonsense. How much money would it take to make the prosecutor take a dive during cross-x? That’s what this guy admits to doing.

    one sad day Mr. Balko got his panties in a bunch and deleted all my old posts here.

    Yeah, people tend to get pissed off when you sign your comments with their name on a thread they are also commenting on.

  52. I did RTFA, and that’s nonsense. How much money would it take to make the prosecutor take a dive during cross-x?

    Probably not much.

    Yeah, people tend to get pissed off when you sign your comments with their name on a thread they are also commenting on.

    Yup. That’s why I was pissed off that day. U nailed it!

  53. I’m not sure everyone will agree on what that means.

    That’s the problem with our legal system, and why we have people interpreting the Second Amendment as “we can take all your guns if we can gin up some concern about crime” and the Fourth Amendment as “we can legislate what you’re allowed to ingest, right of privacy be damned, if we can gin up some concern about addiction.”

  54. I’d act surreptitiously if only because it’s more fun.

  55. Wasn’t this the plot for “Sleepers” with Brad Pitt?

  56. In Sleepers , the defendants were guilty.

  57. There’s a lot of confusion as to who a prosecutor’s client is. While in an abstract sense, prosecutors represent “the people,” legally speaking their client is the government. For example, a prosecutor could represent a friend in a child custody dispute without a conflict of interest, even though that friend is one of “the people.” But a prosecutor could not represent the same friend in a worker’s comp claim because the prosecutor would have a conflict of interest with the state agency.

    There seems to be a misconception that prosecutors should seek “justice” almost as if they are independent judicial authorities. For better or worse, our criminal justice system relies on advesarial proceedings to determine the truth. I’m told that in France prosecutors are more like independent judges with investigative authority. Maybe that works out for them. But over here, if a prosecutor doesn’t zealously advocate for the client, then the jury only hears half the story.

    While a prosecutor (as does every lawyer) has a duty of candor to the court–which would require the disclosure of exculpatory evidence–they are not required to ditch cases where there is some question about the defendant’s guilt. They are required to put that question to the jury.

  58. Legal ethics is a is an oxymoron. What other ethical code reserves the nuremburg defense for itself?

  59. Then you, completely aboveboard, inform the defense of what you know that might help it.

    Lets not forget that the prosecution is obligated to inform the defense of exculpatory evidence. So, this isn’t much of a stretch.

  60. Fuck the formalities. I think everyone involved should work for justice, not for procedures. The defense lawyer should throw the game too if s/he thinks that side is wrong. But keep the money, because what’s wrong with taking money away from a wrongdoer?

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