Timing is everything.  The Supreme Court granted cert in Van de Kamp v. Goldstein, reviewing whether  prosecutors deserve absolute immunity for their administrative failure. I’ve done a  series of  posts about young prosecutors flexing their muscles when many are not yet ready to do so.

Then, everything turned on its side yesterday when Dallas DA Craig Watkins came out of the immunity closet.  Looking at the 45 wrongful convictions in Dallas, Watkins announced in the Dallas Morning News :

Something should be done,” said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. “If the harm is a great harm, yes, it should be criminalized.”

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

This is earth-shattering.  Posts about this already about in the blawgosphere.  See Grits, Gideon, Robert Guest and Shawn Matlock. 

Why has this created such a stir?  It does two things, both quite significant.  First, Watkins has broken the rule of silence, the rule that keeps everyone pretending that prosecutors don’t deliberately violate Brady and withhold exculpatory evidence.  Withholding Brady material is tantamount to deliberately convicting innocent people. 

It’s not that this is new to the criminal defense lawyer.  We’ve lived with  the Brady joke for years.  It’s that a big city District Attorney has finally stepped forward and admitted the truth.  Sure, the truth was apparent from the fact that all these people were subsequently exonerated, where there convictions were obtained in part because of the Brady game, but the courts still clung to the idea that the rights of defendants were secure in the hands of prosecutors.  Courts are good a maintaining legal fictions.

Watkins then takes the problem one step farther.  Not only does he let the cat out of the bag, but he publicly announces that prosecutors who violate Brady should be subject to criminal prosecution or lawyer discipline.  Wow!

Consider:  We were arguing a mere weeks ago whether prosecutors are worthy of total immunity, meaning that they could not be subject to civil liability for their failures, whether in the prosecutorial function or the ordinary administrative function.  This would be a radical departure from the historic grant of absolute immunity, the shield surrounding prosecutors that protects them from liability no matter how badly, or intentionally, they harm someone.  Today, we speak of criminal liability.

It would have been easy enough for Watkins to fall back on the “one bad apple” excuse, or the “need to train them better” solution.  These are usually enough to calm the nerves and leave the masses satisfied that their elected officials are fixing the problem.  But Watkins didn’t skirt the problem or the solution.  Clearly, he has no future as a presidential candidate.

Naturally, Watkins epiphany has not been greated warmly by all District Attorneys. 

John Bradley, the district attorney for Williamson County near Austin, said taking criminal steps against prosecutors, even when they intentionally withhold evidence, is a “ridiculous step” and an “overreaction.”

Was this what the public wants from their prosecutors?  Is this the way they are supposed to do their job?  And what would Bradley do to deal with the problem?

But he said he supports changing state bar rules to allow grievances to be filed when they are discovered rather than within four years of the alleged misconduct, as currently required. There is no recourse when Brady violations are discovered decades later.

It’s wonderful when District Attorney’s discover mercy and temper their righteous lust for convictions.  It’s unfortunate that it doesn’t apply to anyone other than their own.  This tepid and worthless “fix” shows why changes need to be made, radical changes, to hold prosecutors responsible for the very real harm they can do.  And it shows why it can’t be left to prosecutors to police prosecutors. 

This subject desperately need some sunshine, “the best disinfectant.”  It needed to be brought out publicly as a dirty little secret of the system that can do as much harm to an innocent victim as the slug from a Glock.  Convicting innocent people by withholding evidence is a criminal act, one that is worse than a great many of the crimes that have become the subject of the war du jour.  If we want to talk about conduct that diminishes faith in the system, this should go to the top of the list.

Now that Craig Watkins has opened the door, let’s deal with it.  The first step is for the Supreme to affirm Van de Kamp v. Goldstein.  After that, we can eliminate immunity for intentional violations of law.  Then we can debate whether criminal sanctions are needed, or disbarment is good enough.  We have a lot to talk about.