Doubting Case, a Prosecutor Helped the Defense

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.

 

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