The Special Responsibilities of Prosecutors -- and Other Local Government Attorneys

An article on the front page of today's New York Times presents us with an opportunity to focus on the special ethical responsibilities of prosecutors, and other local government attorneys.

An assistant district attorney in Manhattan, Daniel Bibb, was asked to reinvestigate a murder where the conviction of two men was put into question by new evidence. Bibb came to believe that the two men were not guilty, but he was told by superiors to defend the case anyway. He recently admitted that he aided the defense by tracking down witnesses who pointed to other suspects and preparing them to testify for the defense.  He also talked strategy with defense lawyers.

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The New York Lawyer's Code of Professional Responsibility makes it clear that public prosecutors, as well as other government lawyers, have different responsibilities than private lawyers. Ethical Consideration 7-13 states, "The responsibility of a public prosecutor differs from that of the usual advocate; it is to seek justice, not merely to convict." The ethical consideration goes on to say, "With respect to evidence and witnesses, the prosecutor has responsibilities different from that of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to the prosecutor, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce a punishment.  Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused." Disciplinary Rule 7-103B requires that public prosecutors "make timely disclosure to counsel for the defendant ... of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused..."

This flies in the face of what lawyers are taught about the adversary process and zealous advocacy. The ethical consideration makes it clear why: "the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers." The parties are not equal.  They may both have legal representation, but their resources, not to mention their credibility, are not nearly equal.

Ethical Consideration 7-14 sets forth the duty of someone in Bibb's position: "A government lawyer not having such discretionary power who believes there is lack of merit in a controversy submitted to the lawyer should so advise his or her superiors and recommend the avoidance of unfair litigation."  This is exactly what Bibb did.

When he was told to pursue the case despite his belief that the two men were innocent, he had a choice.  He could have withdrawn from the case, which would have allowed another assistant district attorney with none of his knowledge of the case to have zealously defended the convictions. He could have gone public with his beliefs, thereby making it almost impossible for his office to defend the convictions. This would likely have led to his firing (there's no whistleblower protection where there has been no wrongdoing) and being disciplined by the bar.  Or he could have done what he did, which was to zealously fulfill his ethical requirements by following their spirit and going beyond their words.

Bibb was told to present the government's case and let a judge decide, which is the ordinary view of how the adversary system works.  It's not up to the lawyer to decide, that's what judges and juries are for.  However, for prosecutors and other government lawyers, this isn't true.  Their goal isn't to win, but to do justice.  If they have evidence showing that a defendant is not guilty, then how can they try to prove guilt beyond a reasonable doubt? Or as Bibb said, "If the evidence doesn't convince me, then I'm never going to be able to convince a jury."

What interested me most about the story is not how Bibb went beyond his duties, but how, apparently, others fall short of their duties. The attorney for one of the defendants told the Times, "If there's a piece of evidence that bears on another piece of evidence I'm talking about, he'll remind me of it.  That's not something that a prosecutor typically does." Even when the prosecutor has a much greater grasp of the evidence than court-appointed counsel. Yet I doubt that disciplinary action is ever taken in such instances.

After the testimony was over, Bibb went to his superiors again, and they did agree to drop the conviction against one of the defendants.  At this point, Bibb withdrew from the case, allowing another prosecutor to make the final written arguments.  A new trial was ordered for the remaining defendant, and Bibb resigned a few months later.

This is an extreme situation, but I think there are lessons to be learned from it. And I think it should cause local government lawyers to consider what their special duties are, whether they are involved in litigation or not. The government is not a typical client.  It has special rights, powers, and responsibilities. And so does any lawyer who represents it.

Robert Wechsler
Director of Research-Retired, City Ethics