A lawyers conscience

Dwight Sullivan and I have often referred to Professor Melinkoff’s book, “The Conscience of a Lawyer.”  One synopsis says:

Begins with the 1840 murder trial Regina vs. Courvoisier, when, before the second day of trial, Benjamin Courvoisier, the accused, confesses to his lawyer that he committed the crime. The first half of the text describes, in polished narrative style, the course and circumstances of this highly intriguing trial. In the remainder, the author discusses the intricate ethical, moral and strategic issues raised by the uncomfortable position in which the defense counsel is found.

In a CAAFLog posting Dwight says:

It’s a book-length answer to the question, "How can you defend that guy?" And it explains the history, application, benefits, and faults of the Anglo-American legal tradition (and now professional obligation) that a defense counsel zealously protect his or her client’s interests.

Now Professor David J. Luban, Georgetown University Law Center, contributes to the prosecutors perspective – how can you prosecute a person you know is innocent.  Here is a link to his, “The Conscience of a Prosecutor.”  The piece is Georgetown Public Law  and Legal Theory Research Paper No. 10-27 May 2010,  to be published in the Valparaiso University Law Review.  Here is the abstract.

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.