When former ADA Dan Bibb spilled his guts to the New York Times about how he was forced to pursue one of the Palladium murder defendants, even though he believed him to be guilty, and how he intentionally threw the case, it was like thrusting a huge knife in the heart of the beloved New York County District Attorney, Robert Morgenthau. 

Morgy is not only a figure of historic proportions in New York, but one that has endured for so long as to take his place in the Pantheon of District Attorneys, right next to his predecessor, Frank Hogan.  One does not attack living legends lightly.  Adding yet another wrinkle, Morgy, swiftly approaching his 112th birthday, will be challenged again by legend-wannabe, Leslie Crocker Snyder, who should be anticipated to disingenuously use this to body slam Morgy during the primary campaign.

But men like Robert Morgenthau do not get into the gutter to fight it out.  He’s from a day when dignity at all costs was the rule, and he’s not about to change now.  So, Morgy took the high road by sending a letter to the New York Times, reprinted here in its entirety:

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

The letter was perfectly adequate, right up to the last paragraph.  When you have to fall back on a line from a letter of resignation to make one’s point, it smells of desperation.  Though dramatic, Bibb’s positive final words were obviously not written to address this particular instance, but to leave the office on a positive note.  Nothing more, and Morgy no doubt knows this well. 

But one sentence in Morgenthau’s letter is curious:  “To the extent Mr. Bibb disagreed . . . he was neither asked nor required to defend them.”  Defend “them” what?  Defend the conclusions with which he disagreed?  Defend the defendants?  Considering that this letter, likely the effort of the best and brightest minds of the District Attorney’s office, with the big guy himself giving final approval, was to blunt the thrust of Bibb’s blade, how is it possible that the critical line is so obviously confusing and confused.

I’m constrained to conclude that the Morgy defense committee couldn’t figure out a way to express their defense against Dan Bibb without digging themselves into some other, perhaps deeper, hole.  The decision to go with such a vagary was their only choice.  A poor choice, but when there is no better answer, a punt may be the best you can do. 

Even though my legal career has no ties with Robert Morgenthau, and I owe him no debt, I am saddened to see something like this mark the December of his career.  He came from a time when people were bigger than their office, and public service was a calling rather than an excuse to get decent dinner invitations.  I miss those days, and Morgy is the last of the great dinosaurs.  Whoever follows him will never fill his shoes.  And will never understand why the shoes don’t fit.