The Institute for Justice has announced is it bringing a lawsuit over a situation in one Texas county where the hired prosecutor also was moonlighting as a paid law clerk for the judges who were hearing his cases.
Essentially, he was suggesting how the judges should rule on the cases he was bringing against citizens of the county.
“Allowing [Prosecutor Ralph] Petty to serve as a law clerk—a right-hand advisor—for judges in his own cases eviscerated the line between prosecutor and judge; it gave Petty the ability to surreptitiously shape judicial thinking, draft rulings in his favor, gain access to confidential defense materials, and earn over $250,000 in the process,” charged Institute for Justice Attorney Alexa Gervasi.
“In other words, Petty was essentially the de facto judge for those he prosecuted and in cases where his primary employer—the district attorney’s office—was a party. This was a clear, indisputable conflict of interest.”
The organization said Petty spent 20 years moonlighting as a law clerk for the same judges he argued before, effectively playing both prosecutor and judge in more than 300 cases.
“It is one of the most brazen and obvious examples of prosecutorial abuse in modern American history, yet Petty and the others who oversaw this miscarriage of justice have never been held personally accountable for their actions in a court of law,” the IJ said.
It intends to try to do that with its lawsuit, which is on behalf of former Midland County resident Erma Wilson.
She said she was “wrongfully convicted of possessing crack cocaine in 2000.”
“Like so many others, she had no idea about Petty’s conflict of interest, which secretly rigged the system against her. Keeping her faith in a system she expected to be fair and impartial, Erma rejected every plea deal she was offered and took her case to trial, where Petty worked behind the scenes as a law clerk to the judge overseeing her case. Erma was ultimately convicted and received an eight-year suspended sentence,” the IJ reported.
But she’s still paying, as she wanted to become a nurse, and now cannot in Texas which denies licenses to those convicted of certain offenses.
“All I want now is to hold Petty and Midland County’s entire judicial system accountable, so other prosecutors will think twice before violating the people’s rights,” Erma said. “There is nothing that can be done to give me back the past 20 years of my life or my missed nursing career, but I can ensure that similar violations don’t happen to others.”
“Erma’s case highlights three problems with today’s justice system that are all too common,” said Jaba Tsitsuashvili, a lawyer for the institute.
“Those entrusted to enforce the law are supposed to be accountable, transparent and impartial. Erma received none of these protections. And her case is not isolated. Similar examples of prosecutorial abuse of power have been documented across the nation; the difference here is that through our federal lawsuit, we seek to hold former prosecutor Petty and the entire system in Midland County that enabled him accountable.”
Petty’s dual roles actually affected “hundreds” of cases.
The IJ reported, “In at least one case, this conflict of interest nearly cost a man his life. Clinton Young was wrongly convicted of capital murder in 2003 and sentenced to death. After spending 17 years on death row and in solitary confinement, the current district attorney for Midland County revealed that Petty had worked on both sides of Clint’s case. In fact, Petty argued numerous consequential motions on the prosecution’s behalf, and then turned around and wrote the judge’s order ruling in the prosecution’s favor. In September 2021, the Texas Court of Criminal Appeals—Texas’ highest court on criminal matters—reversed Clint’s conviction.”
The legal team charged that Midland County officials knew about the Petty strategy to work two jobs.
“In fact, the county attorney authored a memorandum expressly condoning this employment arrangement; and the county acknowledged the relationship during an IRS audit to explain why Petty received checks from multiple departments in Midland County. In other words, the official policy of Midland County was that prosecutors may serve as law clerks for the same judges they practice before and be paid for both roles,” the institute report said.
The lawsuit challenges the various doctrines that generally assure governmental officials of immunity for their decisions to violate the constitutional rights of others.
Scott Bullock, president of the Institute for Justice, said the legal action is part of his group’s Project on Immunity and Accountability, which charges “government officials are not above the rules; if citizens must follow the law, then government must follow the Constitution.”
The case is in the U.S. District Court for the Western District of Texas.
Wilson’s case resulted in a conviction through the strategies used by Petty, after police officers arrested her and then claimed they found a bag of crack cocaine on the ground nearby.
That’s even though the officers were unable to say they saw her throw or drop anything, or that they ever saw her in possession, and they conceded she did not appear to be under the influence, nor did she have drug paraphernalia on her.
They also admitted that any number of other people had access to that area of ground where they found the crack.
She testified truthfully that the drugs were not hers and she did not know to whom they belonged.
Petty now is retired and the judge in Wilson’s case is dead. The defendants only found out about the behavior after Petty’s retirement. Before then, he was able to resolve “countless consequential disputes in the prosecution’s [I.e., his employer’s] favor.”
A new district attorney found out about the issue and wrote to defendants offering them “documentation” if they wished to pursue their concerns.
The Supreme Court of Texas found Petty was engaged in “professional misconduct” and canceled his law license.
But he was allowed to hold both jobs, prosecuting cases and advising judges in those cases, until that point, even though “both federal and state codes of ethics prohibit law clerks from working on cases where a former, current, or future employer is a party because doing so, at best, gives the appearance of impropriety and, at worse, sacrif8ices the law clerk’s ability to act impartially.”
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