The New York City Lawyer Who Threw a Case

Daniel L. Bibb, a former assistant district attorney in New York City, told a newspaper last year that he deliberately lost a rehearing on the evidence in the murder convictions of two men for killing a bouncer outside a New York City night club.  Defense lawyers say he gave them evidence and held back on cross-examination.  Mr. Bibb, who believed the convicted men to be innocent, said he threw the case after his superiors could not be persuaded that the men were innocent.  Mr. Bibb also said he could not afford to be out of work and that he did not want the men to remain in prison as he pursued other avenues.  “I know I did the right thing.”  The Barometer is not so sure.To be sure, there was political pressure about this very public case, but it was not as if Mr. Bibb faced a spur-of-the-moment, do-or-die decision.  In fact, what we may have here is a case in which reasonable minds could differ.  Robert Morgenthau, the longstanding district attorney for the city, said that Mr. Bibb was participating in what was a fact-finding hearing to determine whether there were grounds for a new trial or a basis for setting aside the convictions.  After the hearing, the DA’s office decided that one of the defendants was indeed not guilty.  The other defendant was retried and acquitted.  The process worked, a process Mr. Bibb wanted to unilaterally circumvent.

Unilateral circumvention of a system, with long established rules and procedures, is always tricky.  What we may “feel,” is curbed by a process that allows objective examination as two sides take their best shots at making a case.  Mr. Bibb deprived the city of that “best shot.”  That zealous representation protects all of us, whether guilty or innocent, because final disposition is made not by an assistant DA, but, rather, by a hearing, evidence, and, often, a jury.  The fact that the post-conviction investigation took two years tells us that this was not an easy case. 

Mr. Bibb’s actions are troublesome because he began with civil disobedience on his mind rather than resolve to persuade through persistence, “I was angry that I was being put in a position to defendconvictions that I didn’t believe in.”  Well, welcome to lawyering, Mr. Bibb.  You think Ira Lee Sorkin believes in Bernie Madoff?  The man snookered thousands out of billions.  But, as Mr. Sorkin notes, “I defend the bad for the sake of the good.”

Mr. Bibb assures us that he tried to convince his superiors that the convictions were unjust.  But perhaps he was unable to convince his superiors of the strength of his convictions because that strength was not immediately evident.  Mr. Bibb felt enough moral indigation to throw canons and court processes to the wind, but not enough to conclude that it was not worth continuing with the hearing or his work with the DA’s office.  Sometimes ambivalence is evident as a bureacracy listens.  Without the passion of conviction, the bureacracy does not hear.  Imagine the credibility Mr. Bibb would have had if, at the height of the re-hearing preparation and political pressure surrounding it, he had resigned.  His actions would have brought the swift resolution he so desired for the men he did not want to languish in prison.  An assistant DA in charge of a controversial case resigns from the office during a re-election campaign for the DA?  Why, Mr. Bibb would have solved the convicted men’s problems and found himself a target for hiring. 

Mr. Bibb opted for an expedient choice, but it was not a choice that demonstrated the strength of his convictions.  And it was a choice with some ethical arrogance.  This is a dangerous business, this decision that we know more and can better judge than a process that was put in place precisely because of the desire to avoid narrow views and unilateral decisions.  We need only be sure that the process is followed.  The irony is that the process reached the results Mr. Bibb believed were needed to serve justice for the two men.  

What happens now that Mr. Bibb is a defense lawyer?  Suppose he “feels” that his client is guilty.  Imagine the ethical outrage if he fed the prosecution evidence and held back on cross-examination.  Why, the very rights of the defendant would be violated!  Exactly.  Both sides have rights, and both sides are entitled to full process for those rights, not the unilateral verdict of Mr. Bibb.  Perhaps that worry about his petulant attitude is what finds him struggling as a defense lawyer.

Know thy case, know thy client, know thy limits.  One limit is you are not always the smartest guy in the room.  We have a process that was created to prevent a grant of power and authority to just one mind.  Mr. Bibb took us back to the archaic era of fiefdoms, lords, and serfs.  “Because I said so,” is not a model for a justice system that makes us comfortable.

Mr. Bibb has been cleared of any ethical violations.  That conclusion does not mean that what Mr. Bibb did was ethical.  Code and Aristotle do part ways on occasion.  This is one of those occasions.  Fast solution, long-term issues.  Quick disposition, agonizing grappling with the fall-out. Expedient, but not ethical.