More than two decades ago, Erma Wilson, then a certified nursing assistant in her mid-20s, was convicted of cocaine possession after police in Midland, Texas, claimed a bag of crack they said they had found on the ground belonged to her. To this day, Wilson denies that the crack was hers. But her felony conviction resulted in an eight-year suspended sentence and prevented her from becoming a registered nurse—her dream since childhood. And although Wilson continued to work as a certified nursing assistant and, after further training, as a medical assistant, her criminal record often made employers leery of hiring her, with the result that she sometimes struggled to support herself and her family.
Twenty years after that 2001 conviction imposed lifelong professional and financial penalties on Wilson, she learned that Ralph Petty, who worked for the Midland County District Attorney’s Office as a prosecutor at the time of her trial, was simultaneously working as a law clerk for local judges—including John G. Hyde, the judge who had presided over her case. Although that blatant conflict of interest was clearly inconsistent with due process, three judges on the U.S. Court of Appeals for the 5th Circuit unanimously but reluctantly ruled last week, Wilson cannot sue Petty, the district attorney who hired him, or Midland County under 42 USC 1983, the federal statute that authorizes people to seek damages from state and local officials who have violated their constitutional rights.
“Today’s result is difficult to explain,” Judge Don Willett writes for the 5th Circuit panel. “What allegedly happened here (and in hundreds of other criminal cases in Midland County) is utterly bonkers: the presiding judge employed a member of the prosecution team as a right-hand adviser.” But because of a binding 5th Circuit precedent that restricts use of Section 1983, Willett says, Wilson’s lawsuit cannot proceed.
“The judges recognize that what happened to me was unfair, unconstitutional, and ruined my dreams,” Wilson said in a press release from the Institute for Justice, which represented her in the U.S. District Court for the Western District of Texas and in her appeal to the 5th Circuit. “I’m hopeful that the full court will hear my case and reverse the rule that keeps me and so many other people from vindicating our constitutional rights.”
That rule is based on the 5th Circuit’s interpretation of Heck v. Humphrey, a 1994 case in which the U.S. Supreme Court said a plaintiff cannot seek damages under Section 1983 for an unconstitutional conviction or sentence without a “favorable termination” of his criminal case. As Willett explains, that means the plaintiff has to show “the conviction or sentence has been reversed on appeal or otherwise declared invalid, such as by federal habeas relief”—a process through which “a person in custody” can challenge his detention. But in this case, Willett notes, “Petty’s conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence, making federal habeas a non-option.”
Since “Heck aims to avoid a collision between § 1983 and federal habeas,” Willett says, Wilson has “a solid argument” that it does not apply “where federal habeas is unavailable,” as most federal appeals courts addressing the issue have ruled. But the 5th Circuit concluded otherwise in the 2000 case Randell v. Johnson. “Under our precedent’s expansive reading of Heck, noncustodial plaintiffs must meet the favorable-termination requirement, too—even if it’s practically impossible for them to do so,” Willett writes. “Put simply, our rule of orderliness bars relief for the disorderliness that Wilson suffered.”
Willett does not pretend that outcome makes sense. “This result is unseemly,” he says. “Absent § 1983, noncustodial individuals on the receiving end of violative conduct, however egregious, will have no federal forum to vindicate their federal constitutional rights. But as a three-judge panel bound by controlling circuit precedent, our hands are tied. Only the en banc court, or the United States Supreme Court, can deliver a different result that better aligns with Congress’ broad textual command in § 1983.”
In addition to highlighting the unjust implications of Randell, the panel’s ruling in Wilson v. Midland County underlines the appalling lapses that created the “utterly bonkers” situation that Willett describes. Petty began working as a law clerk for Midland County judges in March 2000. As Wilson’s April 2022 lawsuit notes, that job included “advising them on legal matters and drafting the judges’ orders and opinions.” In early 2001, then–District Attorney Albert Schorre Jr., another defendant named in the lawsuit, hired Petty as an assistant district attorney, “knowing Petty would have a dual role as a prosecutor and a law clerk to the same judges he would be practicing before.”
On February 12, 2001, Petty signed an employment contract with Schorre’s office. It explicitly noted that Petty “shall be permitted to continue the performance of legal services for the District Judges of Midland County, Texas and perform such work for the said District Judges as they shall desire and be paid for the same as ordered by the District Judges.” Yet Schorre “never disclosed this relationship to defendants or their counsel.”
Midland County Attorney Russell Malm also signed off on Petty’s “conflicted dual-hat arrangement.” In 2002, Judge Hyde asked Malm “whether or not Mr. Petty could receive additional pay in addition to his district attorney salary for doing work for the District Judges on habeas corpus cases.” Yes, Malm said: Petty could “be paid for this additional work.”
Teresa Clingman, who began working as a Midland County prosecutor in 1991 and served as district attorney from 2007 to 2015, also was aware of Petty’s side job. During a 2008 audit, the IRS asked why Petty was receiving both a W-2 and a 1099 from the county. According to Wilson’s complaint, Clingman “explained that the County paid Petty for both his role as a prosecutor and his role as a law clerk to the District Judges.” She noted that when “a writ of habeas corpus is filed, post-conviction, [Petty] responds to it for the judges, at their discretion or assignment.” She “did not disclose that Petty opposed those same habeas petitions on behalf of the prosecution.”
According to county records, Petty served as a de facto adjudicator as well as an advocate from 2001 to 2014, then again in 2017 and 2018. During this time, the lawsuit says, he “advised, performed legal research for, and wrote orders and opinions for District Judges at all stages of the criminal process.” He simultaneously “was involved in almost every case prosecuted by the District Attorney’s Office in some capacity, often as an advisor on prosecution strategies and arguments.” In total, he earned more than $250,000 as a law clerk, in addition to his salary as a prosecutor.
All of this came to light after Laura Nodolf, Midland County’s current district attorney, discovered the dual payments to Petty while reviewing accounting records in August 2019. “In addition to having regular ex parte communications with District Judges on cases prosecuted by the District Attorney’s Office,” Wilson’s lawsuit notes, “Petty surreptitiously drafted hundreds of orders and opinions for District Judges, resolving countless consequential disputes in the prosecution’s (i.e., his employer’s) favor.” Nodolf’s investigation “also revealed that Petty used unique formatting and styling when drafting documents for District Judges,” which made it possible to identify orders he not only influenced but actually wrote.
Petty, who resigned in 2019, asked the Texas Supreme Court to accept that outcome “in lieu of disciplinary action.” In April 2021, the court concluded that Petty had engaged in professional misconduct. Agreeing that his resignation was “in the best interest of the public, the profession and Weldon Ralph Petty, Jr.,” the court canceled his law license and prohibited him from practicing law in Texas.
All told, Petty is believed to have served as both the lead prosecutor and the law clerk in over 300 cases. Nodolf sent letters to many of the affected defendants, noting “a potential violation of the rules of ethics for attorneys.”
One of those cases involved Clinton Lee Young, who was convicted of capital murder in 2003. After Young learned about Petty’s dual role in his case as a prosecutor and as a law clerk for Hyde, the presiding judge, he successfully challenged his conviction, which the Texas Court of Criminal Appeals vacated in September 2021. The court said “the evidence presented in this case supports only one legal conclusion: that Applicant was deprived of his due process rights to a fair trial and an impartial judge.”
Unlike Young, Wilson did not receive a letter from Nodolf. But Wilson became aware of Petty’s conflict in April 2021, after Young’s case attracted national press coverage.
According to Wilson’s lawsuit, “Petty communicated with and advised fellow prosecutors in the District Attorney’s Office” regarding her drug case and her appeal. Meanwhile, he was advising and assisting Hyde, the judge presiding over Wilson’s case. County records “show that Petty invoiced Judge Hyde for work he performed on Erma’s case while he was employed by the DA’s office,” her complaint says. That work gave him “access to documents and information generally unavailable to prosecutors.” And judging from “Petty’s unique formatting and style,” he drafted “documents affirming the jury’s verdict and imposing the terms of Erma’s sentence.” Here is how Wilson’s lawsuit sums up the significance of Petty’s double duty in her criminal case:
Because of Petty’s role as a law clerk in Erma’s case, little confidence can be placed in the outcome of her criminal proceedings. Principally, Petty was serving as a law clerk on a case where his employer was a party….Further undermining confidence in Erma’s criminal proceedings, Petty and Judge Hyde engaged in ex parte communications concerning Erma’s case. Petty was given access to information from both Judge Hyde and the District Attorney’s Office that the defense did not have access to. Consequential motions, such as Erma’s motion to suppress, were resolved in the prosecution’s favor throughout trial. And despite the weak evidence against her, Erma’s motion for a new trial was not granted. Any of these facts by itself undermines the integrity of Erma’s trial. Together, these facts eviscerate it.
Thanks to the 5th Circuit’s reading of Heck, however, Wilson will not have a chance to seek “accountability for unconstitutional wrongdoing that upended her life” (as Willett puts it) unless the appeals court reconsiders its precedent. “Three judges here unanimously agreed that what happened to Ms. Wilson was an egregious constitutional violation,” said Institute for Justice attorney Jaba Tsitsuashvili. “We understand they felt their hands were tied by precedent, but we look forward to the full Fifth Circuit taking up the issue and ensuring that Ms. Wilson and other victims of prosecutorial misconduct can have their day in court.”
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