Morgenthau Responds to ADA Throwing Murder Case

The New York Times LETTER TO THE EDITOR - June 30, 2008
The Manhattan District Attorney Responds

To the Editor:

“Doubting Case, City Prosecutor Aided Defense” (front page, June 23), about Daniel L. Bibb, a former assistant district attorney, requires a response. On Nov. 23, 1990, Marcus Peterson, an unarmed 23-year-old bouncer, was gunned down at the Palladium nightclub. Two men were arrested and charged with the crime, which involved a number of participants.

The case against the two was based on substantial evidence, including multiple eyewitness identifications and a confession made by one defendant to his girlfriend. In December 1992, a jury convicted both defendants, who were sentenced to 25 years to life in prison. Their convictions were upheld in postjudgment proceedings in both state and federal court. When new evidence later came to light, my office willingly reopened the case. Mr. Bibb was assigned to investigate. The investigation was protracted, partly because of the passage of time since the murder, but also because of the reluctance, the criminal backgrounds, the conflicting statements and the dishonesty of a number of witnesses. With the concurrence of his supervisors, Mr. Bibb kept the defense informed of the progress of the investigation and of the information developed as matters proceeded. Ultimately, we consented to a hearing at which the relevant evidence would be aired before a judge. Even at that juncture, the investigation was not complete, as additional facts and witnesses continued to be found.

Given his familiarity with the case, Mr. Bibb was a necessary participant in the hearing. A second, senior assistant district attorney was assigned to conduct the hearing with him. Their mission was to conduct a fact-finding proceeding, with witnesses under oath and subject to cross-examination, affording us the opportunity to resolve substantial issues involving the weight and credibility of the evidence. In fact, the hearing resulted in the development of important new evidence. Mr. Bibb was never asked to prosecute someone he believed to be innocent. He was asked to participate in a fact-finding hearing essential to determine the position my office should take with respect to two murder convictions.

It was only after that hearing that we reached a final conclusion as to our position regarding each defendant. Ultimately, at the recommendation of every other staff member involved in the case, we consented to set one conviction aside, and determined that the second defendant should be tried again. We reached that determination because we believed him to be guilty. To the extent Mr. Bibb disagreed with those conclusions, he was neither asked nor required to defend them. He did not participate in the retrial. As the district attorney of New York County since 1975, I stand for the truth, and have taught generations of my assistants to do the same. Mr. Bibb recognized that in his letter of resignation, in which he wrote, “I will also always remember the consummate professionalism of the office and its unyielding pursuit of justice.”

Robert M. Morgenthau
District Attorney
New York, June 24, 2008

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