Fallout mounts from Texas prosecutor’s moonlighting job as judicial clerk

(Reuters) – A lawsuit filed last week on behalf of a Texas woman who alleges her life was upended when she was falsely convicted of felony drug possession seeks accountability for prosecutorial abuse spanning two decades.

Erma Wilson, a certified nursing assistant and home health aide, says she was never able to fulfill her lifelong dream of becoming a nurse because of a tainted conviction, obtained by a prosecutor with the gravest sort of conflict of interest. Texas law denies nursing licenses to people convicted of drug-related offenses.

Starting in 2001, Weldon Petty prosecuted hundreds of criminal cases for the Midland County District Attorney’s Office while secretly moonlighting for the judges hearing those very same cases, even writing decisions for the court in some instances.

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That’s like a ball player taking off his team jersey halfway through the game and returning in a striped shirt to call fouls. Except the losing team risks life or freedom in each contest.

Attempts to reach Petty were unsuccessful, and his lawyer did not respond to requests for comment. Petty is now retired.

The conflicted arrangement was known to judges and at least two preceding district attorneys. It was uncovered publicly in 2019 when the current DA inadvertently found records showing Petty worked for the prosecution in a capital murder case against Clinton Young, while also working as a law clerk for the judge in the case.

I previously wrote about Young, who was convicted of capital murder and sentenced to death in 2003. Young maintains that he was framed. The Texas Court of Criminal Appeals overturned his conviction in September, holding that the undisclosed “relationship between the trial judge and the prosecutor appearing before him” fundamentally tainted the proceedings from the beginning.

Petty invoked his Fifth Amendment privilege against self-incrimination in the case. The Texas Supreme Court ultimately terminated his law license in connection with Midland’s unscrupulous arrangement in April 2021. But Petty has never faced legal action for his misconduct, largely due to prosecutorial immunity. Judges and prosecutors have absolute immunity, a broader right to freedom from suit than qualified immunity: Officials can not be sued for crimes or money damages as long as they’re acting within the scope of their official duties.

In the case filed on April 11 in federal court in Western Texas, Wilson is represented by Institute of Justice lawyer Alexa Gervasi, who told me that Wilson’s lawsuit serves to challenge the immunities that shield prosecutors from meaningful accountability for even grave and knowingly corrupt behavior.

“Petty is no longer practicing law, but that does not do anything for our client,” Gervasi said. “The only way to get public accountability here is for the court to declare that what happened to Erma is unconstitutional, and to hold government officials personally accountable for the consequences of their actions, ”Gervasi said.

Wilson’s complaint claims a violation of her constitutional due process rights based on the fact that Petty worked as a clerk for the judge in her case, John Hyde, while Petty’s colleagues at the DA’s office were asking Hyde to convict her. Hyde also presided over Young’s case.

Russell Malm, Midland County attorney, told me the county will not comment on pending litigation. Malm and other county officials did not respond to my questions about potential moves to further investigate the involvement of judges or any other officials, or the full scope of cases affected by Petty’s conflict. The current district attorney, Laura Nodolf, also did not respond to my requests for comment.

The disclosures in Young’s 2020 appeal made it clear enough that there are other similarly tainted cases, although Young’s is apparently the only capital case in which Petty worked both for the prosecutorial team and for the judge handling the case. And a USA Today investigation in February 2021 identified at least 355 people whom Petty had prosecuted while simultaneously advising and writing opinions for nine different judges who heard those cases. Seventy-three were still in prison at the time, with 21 serving sentences of 50 years or more, including four people serving life.

Although ethics experts and the state court system have acknowledged a years-long fundamental structural defect in Midland courts, the response from officials thus far is hardly proportional.

Midland County has notified most of the known defendants in which Petty had a conflict of interest in their cases. But no formal investigation or systemic effort to review cases has occurred, and no individual, nor the county, has had to answer to any adjudicator.

In fact, the entire saga came to light only because Young’s case happened to involve a capital offense – which meant he was provided a lawyer to challenge his conviction, unlike other defendants, who are typically unable to afford one.

The due process claims Wilson asserts in her case could be made by many other defendants. And it rests on undisputed facts that demonstrate the dangers of granting nearly blanket immunity to officials with so much power. That issue is now in the purview of the federal court in Wilson’s case, but Midland County could certainly do more.

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Hassan Kanu

Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, DC Reach Kanu at [email protected]

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