The Conscience of a Prosecutor

19 Pages Posted: 24 May 2010 Last revised: 26 May 2010

See all articles by David Luban

David Luban

Georgetown University Law Center

Date Written: May 24, 2010


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.

Keywords: Legal Ethics, Criminal Law, Prosecution

JEL Classification: K00, K40

Suggested Citation

Luban, David, The Conscience of a Prosecutor (May 24, 2010). Valparaiso University Law Review, Forthcoming, Georgetown Public Law Research Paper No. 10-27, Available at SSRN:

David Luban (Contact Author)

Georgetown University Law Center ( email )

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