Erma Fights Back 

In 2000, Erma was spending time with friends in an area of Midland known as “the Flats,” when officers approached her group for no reason other than the Flats being a high-crime area. Not knowing what the officers wanted or why they were approaching her, Erma exercised her right to walk away from them. Even though the officers had no reason to suspect Erma committed a crime, they followed and yelled at her. Erma’s was afraid, so she ran. The officers ultimately placed her under arrest for fleeing. After she was in the police car, officers told Erma that they found crack cocaine near the place Erma had been standing. Even though no officer saw Erma drop anything and finding drugs on the ground was a common occurrence in the Flats, they accused her of possessing the substance. Erma truthfully told the officers it was not hers, but they were not satisfied. Officers informed Erma that she would only be released if she told them who the drugs belonged to. Erma didn’t know, so she was arrested. 

Maintaining her innocence, Erma rejected every plea offer she received and took her case to trial, putting her faith in the Constitution and the due process it promises.  

Erma’s trust, unfortunately, was misplaced. Throughout the trial, key motions were decided against her, despite their legal soundness. And ultimately, it was Petty, not an impartial judge, who secretly drafted the final judgment and sentencing order that sealed Erma’s fate. Petty’s work as a law clerk for the judge in the case—a clear conflict of interest—was never disclosed to Erma or her attorney. To the contrary, it remained a secret between the DA’s Office, the judges, and the county for decades. 

A first-time offender, Erma was sentenced to eight years of probation, but the lasting consequences of her conviction run much deeper. Since she was nine years old, Erma has dreamed of becoming a registered nurse. In fact, at the time of her conviction, she was already a Certified Nursing Assistant, caring for the elderly and terminally ill. But because Texas will not grant registered nursing licenses to people convicted of drug-related offenses, Erma was never able to realize her dream. At times, she struggled to make ends meet and provide for her children because employers were hesitant to hire someone with a felony record. Over the years, Erma has had to work twice as hard to stay in the medical field and convince employers that she is a safe, reliable hire despite her past conviction.  

Erma is 20 years into a life-long punishment despite never receiving a fair trial—one untainted by advantages and biases in the government’s favor. Midland County, the District Attorney, and Ralph Petty had a duty to uphold the Constitution and ensure that Erma and every other defendant who passed through their doors received due process of law. Yet they shirked that duty in favor of easier wins for the prosecution and lighter workloads for the judges.  

There is nothing that can be done to give Erma back the last 20 years of her life or her missed nursing career. But Erma can fight to hold the wrongdoers accountable and ensure that similar violations do not happen to others. 

Erma’s Case is Not an Isolated Event 

Erma’s case highlights three problems with today’s U.S. justice system that are all too common: Those entrusted to enforce the law are not accountable, transparent or impartial. Erma received none of these protections. And her case is not isolated.  

Through Petty’s misconduct alone, hundreds were denied their rights to due process, and 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 his 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. It ruled that: 

Judicial and prosecutorial misconduct—in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him—tainted Applicant’s entire proceeding from the outset. As a result, little confidence can be placed in the fairness of the proceedings or the outcome of Applicant’s trial. . . . 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. 

Midland County is not alone. Examples of prosecutors escaping liability are ubiquitous in the United States. For example, the 2nd U.S. Circuit Court of Appeals recently ruled that a group of nurses could not sue Suffolk County prosecutors who hid evidence and engaged in other misconduct as a political favor. Similarly, a Maryland court held in 2021 that a prosecutor could not be held personally accountable for withholding lab test results proving that a man jailed for allegedly flying with methamphetamines was in fact carrying only honey, just like he said. In both cases, as in Erma’s, prosecutors withheld the truth to serve their own interests, and they were never held to account for their violations. 

The Claims 

This case raises claims under the Fourteenth Amendment’s Due Process Clause, arguing that Ralph Petty and former District Attorney Al Schorre personally violated Erma’s constitutional rights, as did Midland County through its policies and official decisions.  

The Due Process Clause of the Fourteenth Amendment guarantees fair and just proceedings. Yet the government of Midland County and its officials permitted Petty to serve conflicting roles, violating “the due process maxim that no man can be a judge in his own case.”1  

Unfortunately, holding Petty, Schorre and the county to account in a court of law is not as simple as proving that this obvious due process violation occurred. All three defendants have immunity doctrines available that, in most circumstances, shield them from liability. This infographic prepared by the Institute for Justice demonstrates how difficult it is for ordinary people to hold government officials accountable when they violate someone’s constitutional rights. Through this lawsuit, IJ and Erma seek to challenge these doctrines and demonstrate their incompatibility with the pursuit of justice, especially in such an egregious and obvious case of wrongdoing. 

Prosecutorial Immunity 

Prosecutorial immunity is an absolute shield against damages lawsuits for claims that arise from prosecutorial actions. Believing that the constant worry of lawsuits would impede prosecutors’ ability to do their job, courts created this immunity to serve “public trust,” the “goal of accurately determining the guilt or innocence of defendants,” and “the effective functioning of the criminal judicial system.”2 Instead of serving these goals, however, experience shows that this immunity enables prosecutors to disregard constitutional rights in pursuit of convictions. Despite prosecutorial immunity’s fundamental flaw, there is only one carveout to this otherwise impervious protection: It does not shield prosecutors from being sued for actions that are not related to advocating for the prosecution, such as acting as an investigator or police detective. In other words, “the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.”3 

Petty’s conduct as a law clerk for judges, advising on and authoring the outcomes of his own cases, and the former DA’s decision to hire Petty knowing about his unfair advantage, falls far outside the bounds of the prosecutorial function. But it is unlike typical prosecutorial immunity cases, which deal with prosecutors acting as police or detectives. Courts have yet to recognize an exception to prosecutorial immunity for employment decisions like those made in this case. Given the ramifications of Petty’s and the DA’s actions on “public trust,” “accurate determinations of guilt or innocence,” and “the effective functioning of the criminal judicial system,” the outrageous circumstances of this case demand such a recognition and denial of prosecutorial immunity.  

Qualified Immunity 

After overcoming the hurdles of prosecutorial immunity, Erma must still grapple with qualified immunity, which shields government officials from liability unless they violated a constitutional right that was “clearly established.” What qualifies as “clearly established”? Courts generally require plaintiffs to identify a case (1) from their own jurisdiction (2) with virtually identical facts (3) that holds that the specific right at issue exists. More often than not, even the smallest factual difference will prompt courts to save government officials from accountability, no matter how clear and gross the constitutional violation.  

Qualified immunity presents a unique challenge—and opportunity—in this case. Petty’s and the DA’s misconduct here is unprecedented, meaning there are no cases addressing this exact violation and declaring it unconstitutional. But that does not mean the courthouse doors are firmly shut to Erma.  

Recently, the U.S. Supreme Court has emphasized that judges must not shut their eyes to obvious constitutional violations and that government officials will not be shielded from liability simply because there is not a factually identical case on point. The relevant question is whether the government actors were “on notice” that their behavior violated the Constitution’s demands. And here, there is no question that a prosecutor serving as a de facto judge offends the Constitution. 

Municipal Liability 

Generally, municipalities like Midland County are likewise shielded from accountability for their role in constitutional violations. However, this immunity can be overcome by showing that the violation resulted from a municipal policy or custom, or that it was authorized by an official with final decision-making authority. In this case, the county undeniably knew about and signed off on Petty’s dual role. 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. 

Together, Petty, former District Attorney Schorre and Midland County created a system that guaranteed hundreds of people would be denied their constitutional right to due process. And they must be held accountable for their actions. 

The Litigation Team 

Institute for Justice senior attorney Robert McNamara and IJ attorneys Alexa L. Gervasi and Jaba Tsitsuashvili represent Erma Wilson.  

The Institute for Justice 

Founded in 1991, the Institute for Justice is the national law firm for liberty. IJ is dedicated to fighting judge-made rules that make it extremely difficult to hold government officials accountable for violating the Constitution. Our efforts include direct lawsuits against government officials at all stages of litigation (such as our cases on behalf of Sylvia Gonzalez, Cassi Pollreis, Hamdi Mohamud and Kevin Byrd), appellate friend-of-the-court briefs in support of individuals who have suffered at the hands of government officials, and outreach to members of the public who want to know more about the difficulties of suing governments and their employees for violating individual rights. We do all this because of our fundamental belief that following the Constitution means being held accountable for violating it.