Injustice With Impunity: A Texas Tale

Photo by Clyde Robinson via Flickr

Now-retired prosecutor Ralph Petty earned a living at the Midland County District Attorney’s Office in West Texas. But that wasn’t his only job. He also moonlighted as a law clerk for the same judges who presided over his cases.

By day he prosecuted criminal suspects and opposed prisoner appeals. By night he drafted court documents for judges to sign. In the process, he ruined the lives of hundreds of defendants who came before him by denying them due process.

As a subsequent ruling by the Texas Court of Appeals finally made clear, the arrangement was not a momentary lapse in judgment or a one-time offense induced under pressure.

It went on for 20 years, demonstrating not just a conflict of interest by one prosecutor, but an entire system of justice that abetted Petty’s actions.

Besides padding his government salary by more than $250,000, the double-dipping gave Petty other advantages. He had access to defense materials generally unavailable to prosecutors. And he had power to influence judicial thinking behind the scenes.

Defense attorneys would have protested if they knew what was going on, but county and court officials kept the arrangement quiet among themselves.

Many people suffered as a result. One of them was Clinton Young.

Alexa Gervasi

Young spent almost 20 years on death row until the Texas Court of Criminal Appeals reversed his murder conviction in 2021 in a ruling that pulled no punches about how Petty had gamed the system.

In its unanimous ruling, the panel said, “Judicial and prosecutorial misconduct—in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him—tainted [Young’s] entire proceeding from the outset.”

Overall, Petty simultaneously served as a prosecutor and law clerk at least 300 times.

Erma Wilson was another individual ensnared by Petty’s conduct in office. She was convicted of possessing crack cocaine in 2000. Although she had no drugs on her at the time of her arrest, officers said they found some near her on the ground.

Maintaining her innocence and placing her trust in the judicial system that she expected would provide her with due process, Wilson rejected plea offers and proceeded to trial.

Nobody told her that Petty would be working both sides of the bench in her case.

Two decades later, Wilson’s felony record continues to block her lifelong dream of becoming a nurse in Texas—a state that denies licensure to people convicted of specific crimes, including drug offenses.

Rather than accept the violation of her rights, Wilson fought back on April 12 with a federal lawsuit against Petty, his former boss at the Midland County District Attorney’s Office who signed off on his clerking, and the county itself.

Our public interest law firm, the Institute for Justice, represents her.

The case highlights three problems with the U.S. justice system that are all too common: the ease with which public officials can escape accountability, transparency and impartiality.

Wilson received none of these protections, and her case is not isolated.

In Search of Accountability

Lack of accountability could thwart Wilson’s lawsuit before it starts. No matter how strong her case, courts routinely toss complaints against prosecutors without allowing plaintiffs like Wilson to present evidence.

A judge-made doctrine known as “prosecutorial immunity” makes people like Petty nearly untouchable no matter how gross their constitutional violations.

A recent New York ruling shows just how far immunity has metastasized.

The case started in 2006, when a health care provider recruited 10 nurses from the Philippines to work at various Long Island nursing homes. When the Filipinos arrived, they found themselves trapped in a situation they described as “forced labor.”

They complained to an immigration and employment attorney about long hours and poor living conditions. Based on his advice, they quit their jobs in protest.

Prosecutors in Suffolk County, N.Y., responded by charging all 10 nurses and their attorney with “patient abandonment.” The nurses allege in a lawsuit that prosecutors hid exculpatory evidence from a grand jury and engaged in other forms of misconduct—all as a political favor for the health care company.

The allegations are serious, but nothing will be proved on the witness stand. The 2nd U.S. Circuit Court of Appeals ruled on March 9 that the nurses cannot sue. Even if Suffolk County prosecutors provided muscle to aid human traffickers, they are immune from civil liability.

Wilson will face similar challenges in Texas.

Even if she overcomes prosecutorial immunity, other barriers would remain, including something known as “qualified immunity.”

All government employees—not just prosecutors—now receive this layer of protection.

To clear the hurdle, ordinary citizens must prove that government employees crossed “clearly established” lines into the realm of unconstitutional conduct. If someone cannot point to a previous ruling in the same jurisdiction with nearly identical circumstances, then courts dismiss civil complaints without considering the merits.

Neither of these legal doctrines would stop the government from policing itself. But public agencies are notoriously bad at doing this.

Only once has a prosecutor gone to jail for misconduct. And an Innocence Project review of 660 cases found only one instance in which a prosecutor received discipline following misconduct allegations.

Petty’s case fits the pattern. He has faced no consequences for anything he did in Midland County. Either way, Wilson has no control over the county’s internal affairs. Her only recourse is to seek civil damages.

If she is now allowed to have her day in court, then the system is broken. Constitutional rights are mere suggestions if government officials can violate them without penalty.

In Search of Transparency

Closely associated with accountability is the constitutional promise of transparency. Citizens cannot hold the government accountable if they don’t know what the government is doing.

In the criminal justice realm, this means no secrets from defense attorneys and no backroom arrangements with the judge.

Court officials also must disclose conflicts of interest.

Judge Paul A. Bonin failed to do this in the Orleans Parish Criminal District Court in Louisiana. On multiple occasions he ordered criminal suspects to pay for pretrial ankle monitoring, which is not unusual. But Bonin went further.

He directed defendants to use one specific ankle monitoring company without mentioning two alternate providers—and without mentioning his personal, political and financial ties to the preferred company.

Daryl James

The conflict of interest came to light only after a judicial watchdog organization, Court Watch NOLA, pored over campaign finance records and connected the dots in a 2019 report. The information allowed two coerced customers—who each paid hundreds of dollars for ankle monitoring—to file a lawsuit with representation from the Institute for Justice.

For obvious reasons, government officials who engage in misconduct hate transparency.

When Carter Walker, a newspaper reporter from LNP Media Group in Pennsylvania, requested civil forfeiture records in Lancaster County, he got stonewalled in 2019. Eventually he filed a lawsuit under the state’s Right to Know Law.

Again, the Institute for Justice provided representation.

Walker’s questions were valid. Civil forfeiture allows the government to seize and permanently keep people’s cash, cars and other valuables without a criminal conviction. The process invites abuse, and Walker’s reporting led to an audit that uncovered corruption.

As a result, the Pennsylvania Office of Attorney General announced charges against the former Lancaster County Drug Task Force supervisor on March 15. Allegations include theft of more than $200,000 in civil forfeiture proceeds.

Sadly, public records are not always available to scrutinize. Alaska, Montana and North Carolina, for example, do not require law enforcement agencies to collect or report information related to civil forfeiture.

The lack of oversight is the ultimate barrier to transparency. Members of the public cannot review records that do not exist, and public officials cannot be trusted to disclose unflattering information voluntarily.

Wilson knows this from firsthand experience in Texas.

In Search of Impartiality

The third prong of due process is impartiality. Accountability and transparency correct most types of bias, but policymakers sometimes allow conflicts of interest to fester in the open.

A recent Institute for Justice case in Indiana provides a particularly troubling example. The state not only allows counties to hire private practice attorneys to prosecute civil forfeiture cases, but it requires payment on a contingency fee basis.

The formula is simple: Forfeit more, profit more. Prosecutors get nothing if they lose, so they are highly motivated to pursue forfeiture even at the expense of justice.

In one high-profile case, the state battled for eight years to take a car from a first-time petty criminal named Tyson Timbs. Prosecutors eventually lost—after two trips to the Indiana Supreme Court and one trip to the U.S. Supreme Court. But the same incentive system remains in place to encourage future abuse.

Wilson encountered a different type of bias in Texas. She trusted the court to treat the prosecution and defense with equal deference, but the process was rigged against her fom the start.

The Constitution promises accountability, transparency and impartiality. People like Wilson get lack of due process instead.

Problems took decades to develop, but the Institute for Justice has model legislation that can turn back the clock. Lawmakers should start the reform process immediately.

Alexa L. Gervasi is an attorney. Daryl James is a writer at the Institute for Justice in Arlington, Va.