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. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.Via TalkLeft comes a story from the New York Times of an Assistant NY District Attorney caught between his obligation to his boss and his obligation to the Constitution. Daniel Bibb was an ADA who was tasked with reviewing the convictions of two men in a nightclub shooting in 1990. After almost two years of review, Bibb decided that the two men were wrongfully convicted and recommended that the convictions be dropped. His bosses disagreed and ordered him to defend the convictions in a new hearing.
Berger v. US, 295 U.S. 78, 85 (1935)
Convinced he was right, Bibb decided to take a dive:
He tracked down hard-to-find or reluctant witnesses who pointed to other suspects and prepared them to testify for the defense. He talked strategy with defense lawyers. And when they veered from his coaching, he cornered them in the hallway and corrected them.The Times article solicits several opinions on the propriety of Bibb's actions, but I'm disappointed that none of them mention the Supreme Court's sentiments in Berger. It's not just about winning for the prosecution. The fact that Bibb's supervisors let winning get in the way of justice is more troubling than Bibb's rolling over.
'I did the best I could,' he said. 'To lose.'
Today, the two men are free. At the end of the hearing, which stretched over six weeks, his superiors agreed to ask a judge to drop the conviction of one, Olmedo Hidalgo. The judge granted a new trial to the other, David Lemus, who was acquitted in December.
1 comment:
As you know, JDB, that is my very favorite case quote---it should be tattooed on the hand of every prosecutor, so when they start rubbing their hands gleefully drooling when thinking about how they are going to stick to someone, maybe they'll see the Berger quote. Ahhh, no, you're right---if you understand Berger, and believe in it, then you don't need to have it tattooed anywhere. And if ya don't get it, you can have it tattooed everywhere and it won't matter.
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