There is an inverse relationship between the shock value of Erma Wilson’s criminal justice experience and the remedy, or lack of remedy, afforded her for an alleged violation of her constitutional rights. Even though a federal judge called her story “absolutely insane,” she was barred from standing before a jury and making her civil case against a crooked former prosecutor.
On a rare occasion, that may finally change. The U.S. Court of Appeals for the 5th Circuit this week agreed to hear his petition, implying that a majority of the justices may be inclined to reverse the court’s previous ruling, which shielded a former assistant U.S. attorney from liability district of Texas who allegedly helped prosecute Wilson while he secretly worked for the same judges who oversaw his cases.
In 2001, the Midland County District Attorney promoted Weldon “Ralph” Petty Jr. from law clerk to prosecutor. But instead of moving into his new role, he retained both, simultaneously prosecuting cases and assisting judges as their right-hand man. This means that by day Petty, like any prosecutor, pursued rulings in defense of the government. And then at night, like no prosecutor, he would have drawn up the same sentences he had sought.
That year, Wilson found himself in the same court. Police arrested her after finding crack cocaine on the ground near where she and some of her friends were standing. She vehemently denied that she belonged to her and the police informed her that she could be free if she told them who she belonged to. She said she didn’t know.
The government attempted to avoid a trial by offering Wilson several plea deals. She refused them all, insisting both on her innocence and on a jury trial, the latter of which is extremely rare in the modern criminal justice system. She was found guilty and sentenced to eight years of community supervision. But Wilson’s punishment has survived to this day, as her conviction prevented her from becoming a nurse, her dream since childhood, because Texas bars people convicted of drug-related crimes from getting a nursing license.
Petty’s double-hat shenanigans lasted from 2001 to 2014, and again from 2017 to 2018. They didn’t come to light until the following year, when Midland County District Attorney Laura Nodolf examined his accounting records and He was confronted with the fact that hundreds of cases may have been tainted by his conflict of interest. Fortunately for Petty, the timing of that discovery coincided with his retirement. He was ultimately disbarred in 2021, two years after leaving office.
It is an extremely difficult task to obtain a remedy when a prosecutor violates the Constitution, as the role is generally protected by absolute immunity. After Petty’s misconduct came to light, Wilson nevertheless attempted a lawsuit alleging that Petty had violated his Fourteenth Amendment rights by moonlighting for then-Judge John G. Hyde, who tried his case . Hyde died in 2012.
But when Wilson sued under § 1983 – the relevant civil rights law – his claim died before a court could consider whether Petty was entitled to absolute immunity, thanks to yet another barrier placed before alleged victims of government abuse located in a similar position. “A convicted party may not seek damages under § 1983 for an unconstitutional conviction or imprisonment without first showing that the conviction or sentence was overturned on appeal or otherwise declared invalid,” Judge Don Willett wrote for the 5th Circuit in December. “The problem here is that Petty’s contentious double-hat deal only came to light After Wilson had served his entire sentence.”
In other words, a technicality would prevent Wilson from asking the jury whether she deserved damages. Willett wrote that he was bound by precedent and that only a Supreme Court ruling or an en banc decision — in which all the judges on the 5th Circuit convene to hear and reconsider a case — could overturn it. The 5th Circuit obliged.
If they decide in Wilson’s favor, she will have to deal with absolute immunity, which, true to its name, usually dooms cases before they begin. This case might be different. The doctrine protects prosecutors from civil suits if their alleged misconduct was committed in the course of their judicial duties. But Petty technically worked as a law clerk. Wilson’s statement “is a stepping stone toward lifting prosecutorial immunity,” Alexa Gervasi, a former attorney at the Institute for Justice, told me in 2022. “What this case will do is show why absolute immunity in every respect is wrong. It creates incentives to do harm and violate the Constitution.”
Midland County says Petty, despite working for Hyde, did not interfere with Wilson’s case. The same couldn’t be said for Clinton Young, who was sent to death row in 2003 for a murder he long claimed he didn’t commit. At trial, one of Young’s co-defendants, David Page, testified that Young, not Page, killed Doyle Douglas and Samuel Petrey. What’s interesting, however, is that Page’s testimony came in exchange for a more lenient sentence—something Young’s lawyers say was not adequately disclosed.
Petty’s dual settlement amounted to “shocking” misconduct that “destroyed any semblance of due process,” Senior District Judge Sid Harle wrote in 2021, a nauseating twist under any circumstances, but especially when you consider that he almost sent a man to his death.
“Avid sports fans scream nonstop about bounced calls and delight in blaming officials for losing the game,” Willett wrote in that December decision. Indeed. And if you wouldn’t want someone close to your sports team, you obviously wouldn’t want them as a prosecutor or judge, much less both.