[UPDATED] This post is about fascinating case, where a prosecutor may or may not have intentionally "thrown" a case in the defense's favor. We had a lot of discussion about the case at this blog and at the Balkinization blog as well, and then David Luban used the case as the grist for his Tabor Lecture at Valparaiso. Just recently, we had a commenter leave a message that she became aware of another situation that appears to be similar, and so I decided to let David Luban know and then bump the post. In my original post, I linked to the SSRN version of Luban's speech, but just recently in the comments below David suggested that people who are interested in the case should read his final, updated version as it was printed in the law Valparaiso Law Review:
"By the way, the published version of my "The Conscience of a Prosecutor" is significantly different from the draft I posted on SSRN and linked here. After I posted the draft, one of the defense lawyers read it and contacted me to offer his very different impressions of the case. On the basis of my conversations with Cohen, I re-interviewed Dan Bibb, who fleshed out the story still more. I would urge anyone interested in this case to read the version published in 45 Valparaiso L. Rev. 1 (2010) rather than the version posted on SSRN."
Here's, "The Conscience of a Prosecutor," the 2010 Tabor Lecture at Valparaiso, by David Luban. (The abstract is below.) The lecture deals with a NYC prosecutor, Daniel Bibb, who "threw" a case because he believed the defendants to be innocent. David Luban blogged about the matter at Balkinization, several of us chimed in with comments (Stephen Gillers, Marty Lederman, and me), and the comments became part of Luban's lecture. My view, in a nutshell, is that if by "threw" we mean "covert deceit" then the prosecutor erred. Btw, the lecture was dedicated to the memory of Fred Zacharias.
UPDATE: See the comments below by Brad Wendel, whose new book will reference the blawgospheric debate.
This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving lengthy sentences. Bibb’s superiors required him (over his protests) to defend the convictions in a hearing to determine if the men should be retried. He had exhaustively reinvestigated the case, including interviews with reluctant witnesses who it seemed unlikely that anyone but Bibb could get to testify. This essay delves into the facts of the case and includes interview material with Daniel Bibb. It defends Bibb’s conduct, and argues that rather than facing professional discipline (as some ethics experts suggested), Bibb deserves praise. The essay uses the episode to examine the meaning of familiar adage that prosecutors must seek justice, not victory; the question of whether a subordinate lawyer in an organization must defer to the judgment of his or her superiors; and the role of conscience in legal ethics.