Probe of Manhattan DA's Prosecutorial Misconduct Widens

Doubting Case, a Prosecutor Helped the Defense
The New York Times by BENJAMIN WEISER - June 23, 2008

The Manhattan district attorney, Robert M. Morgenthau, had a problem. The murder convictions of two men in one of his office’s big cases — the 1990 shooting of a bouncer outside the Palladium nightclub — had been called into question by a stream of new evidence. So the office decided on a re-examination, led by a 21-year veteran assistant, Daniel L. Bibb. 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. He did, and in 2005 he lost. But in a recent interview, Mr. Bibb made a startling admission: He threw the case. Unwilling to do what his bosses ordered, he said, he deliberately helped the other side win. 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. “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. Mr. Bibb, 53, who said it was painful to remain in the office, resigned in 2006 and is trying to build a new career as a defense lawyer in Manhattan — with some difficulty, friends say, in a profession where success can hang on the ability to cut deals with prosecutors.

Mr. Morgenthau’s office would not comment on Mr. Bibb’s claims. Daniel J. Castleman, chief assistant district attorney, would say only: “Nobody in this office is ever required to prosecute someone they believe is innocent. That was true then, as it is now. That being the case, no useful purpose would be served in engaging in a debate with a former staff member.” The office has said it had good reason to believe that the two men were guilty. Yet whatever the facts of the murder, the dispute offers an unusual glimpse of a prosecutor weighing the demands of conscience against his obligation to his office, and the extraordinary measures he took to settle that conflict in his own mind. “I was angry,” Mr. Bibb said, “that I was being put in a position to defend convictions that I didn’t believe in.” The case also reveals a rare public challenge to one of the nation’s most powerful district attorneys from within his office. As the hearing unfolded in 2005, Mr. Morgenthau, running for re-election, was sharply criticized by an opponent who said he had prosecuted the wrong men.

By then, the Palladium case had become one of the most troubled in the city’s recent history, stirred up every few years by fresh evidence, heralded in newspaper and television reports, that pointed to other suspects. It is not as if Mr. Morgenthau has refused to admit mistakes. In 2002, in spectacular fashion, his office recommended dismissing the convictions of five men in the attack on a jogger in Central Park, after its reinvestigation showed that another man had acted alone. “It’s my decision,” Mr. Morgenthau said then. “The buck stops here.” In fact, the prosecutor who led that inquiry, Nancy E. Ryan, was Mr. Bibb’s supervisor in the Palladium case — though Mr. Bibb would not detail his conversations with her or other superiors, saying they were privileged.

Defense lawyers confirmed that Mr. Bibb helped them, though he never explicitly stated his intentions. Some praised his efforts to see that justice was done. Others involved in the case suggested he did a disservice to both sides — shirking his duty as an assistant district attorney, and prolonging an injustice by not quitting the case, or the office. And some blame Mr. Bibb’s superiors. Steven M. Cohen, a former federal prosecutor who pushed Mr. Morgenthau’s office to reinvestigate, said that while Mr. Bibb should have refused to present the case, his bosses should not have pressed him. “If Bibb is to be believed, he was essentially asked to choose between his conscience and his job,” Mr. Cohen said. “Whether he made the right choice is irrelevant; that he was asked to make that choice is chilling.” At 6-foot-6, Mr. Bibb looks every inch the lawman, with a square jaw, a gravelly voice and a negotiating style that lawyers describe as brutally honest. He joined the district attorney’s office right out of Seton Hall Law School in 1982 and went on to handle some of its major murder cases and cold-case investigations.

The Palladium case certainly looked open and shut in 1992, when Mr. Lemus and Mr. Hidalgo were sentenced to 25 years to life. Several bouncers identified them as the men they scuffled with outside the East Village nightclub. Mr. Lemus’s ex-girlfriend said he claimed to have shot a bouncer there. But the next decade brought a string of nagging contradictions. A former member of a Bronx drug gang confessed that he and a friend had done the shooting. That spurred new examinations by the district attorney’s office, federal prosecutors, defense lawyers, the police and the press. When Mr. Morgenthau’s office was asked to take another look, Mr. Bibb said, his supervisors gave him carte blanche. “It really was, leave no stone unturned,” he said. Over 21 months, starting in 2003, he and two detectives conducted more than 50 interviews in more than a dozen states, ferreting out witnesses the police had somehow missed or ignored.

Mr. Bibb said he shared his growing doubts with his superiors. And at a meeting in early 2005, he recalled, after defense lawyers won court approval for a hearing into the new evidence, he urged that the convictions be set aside. “I made what I considered to be my strongest pitch,” he said. Instead, he said, he was ordered to go to the hearing, present the government’s case and let a judge decide — a strategy that violated his sense of a prosecutor’s duty. “I had always been taught that we made the decisions, that we made the tough calls, that we didn’t take things and throw them up against the wall” for a judge or jury to sort out, he said. “If the evidence doesn’t convince me, then I’m never going to be able to convince a jury.” Still, Mr. Bibb said, he worried that if he did not take the case, another prosecutor would — and possibly win. Defense lawyers said he plunged in. In long phone conversations, he helped them sort through the new evidence he had gathered.

“If I make a mistake in my interpretation of what he said, he’ll correct me,” said Gordon Mehler, who represented Mr. Lemus. “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.” As the defense decided which witnesses to call, he again hunted them down — sometimes in prison or witness protection — and, when necessary, persuaded them to testify in State Supreme Court in Manhattan. “I made sure all of their witnesses were going to testify in a manner that would have the greatest impact, certainly consistent with the truth,” Mr. Bibb said. “I wasn’t telling anybody to make anything up.” He told them what questions to expect, both from the defense and his own cross-examination — which he admitted felt “a little bit weird.” Defense lawyers say they first met some of their witnesses on the day of testimony, outside the courtroom.

During breaks, Mr. Bibb confronted the lawyers when he felt they were not asking the right questions. “Don’t you understand?” one lawyer recalled him saying. “I’m your best friend in that courtroom.” Cross-examining the witnesses, Mr. Bibb took pains not to damage their credibility. Facing a former gang member who had pleaded guilty to six murders, he asked only a few perfunctory questions about the man’s record. Daniel J. Horwitz, the other defense lawyer, said the help was invaluable. “Did Dan play a useful role in making sure that justice prevailed in that courtroom? The answer is unequivocally yes.” When the testimony was over, Mr. Bibb said he made one last appeal to his superiors to drop the convictions. They agreed to do so for Mr. Hidalgo, but not for Mr. Lemus — who was still implicated by “strong evidence,” the office said at the time. “I said, ‘I’m done,’ ” Mr. Bibb recalled. “I wanted nothing to do with it.”

Another prosecutor made final written arguments, and in October 2005, Justice Roger S. Hayes ordered the new trial for Mr. Lemus. Demoralized by the case, Mr. Bibb resigned a few months later. A close friend, Robert Mooney, a New York City police detective, said that if not for the Palladium case, Mr. Bibb “would have spent his entire professional life at the prosecutor’s office. “He’s brokenhearted that he’s not doing this anymore.” In a brief interview after he quit, Mr. Bibb defended Mr. Morgenthau against criticism that the case had been mishandled. “There was never any evil intent on the part of the D.A.’s office,” Mr. Bibb said then.

But around the same time, he distanced himself from the office’s decisions in remarks to “Dateline NBC.” He said that during the hearing, he already believed the two men were not guilty, but proceeded because he had a client to represent: Mr. Morgenthau. “He was aware of what was going on,” Mr. Bibb told the interviewer. “The decision to go to a hearing was not made in my presence.” As for Mr. Bibb’s new revelation that he helped the defense, lawyers and others are divided. Stephen Gillers, a legal ethics professor at the New York University School of Law, said he believed that Mr. Bibb had violated his obligation to his client, and could conceivably face action by a disciplinary panel. “He’s entitled to his conscience, but his conscience does not entitle him to subvert his client’s case,” Mr. Gillers said. “It entitles him to withdraw from the case, or quit if he can’t.”

On the other hand, he added, Mr. Morgenthau could have defused any conflict by assigning another prosecutor. John Schwartz, a former detective who worked to exonerate the convicted men, said Mr. Bibb did them no favor by continuing in the case. “He effectively took part in keeping two innocent men in prison an additional year at least, for not going with what he felt was the truth,” Mr. Schwartz said. But Mr. Mehler, the defense lawyer, said Mr. Bibb acted honorably. While lawyers on both sides must advocate for their clients, he said, “a prosecutor has an additional duty to search out the truth. “I say that he lived up to that.” Today, Mr. Bibb says he does not believe he crossed any line. “I didn’t work for the other side,” he said. “I worked for what I thought was the right thing.”