A Texas Prosecutor Played Judge for 20 Years; Now IJ Is Holding Him Accountable
Every grade-school American social studies class teaches that, in the United States, we have a system of separation of powers. To the Founders, it was obvious that the executive branch must be separated from the judicial branch, both of which must be separated from the legislative branch. After all, James Madison explained, quoting Montesquieu, if a judge were also a prosecutor, “the judge might behave with all the violence of an oppressor.”
Despite this centuries-old command, Midland County, Texas, for 20 years employed lawyer Ralph Petty as both an assistant district attorney by day and a law clerk to Midland County’s judges by night. In other words, Petty worked for the executive branch as a prosecutor while also working for the judicial branch as judges’ right-hand adviser in his own cases and in cases where his primary employer—the District Attorney’s Office—was a party.
Throughout the course of his unconstitutional dual employment, Petty played prosecutor and judge in more than 300 cases. Yet neither Petty nor those who oversaw his moonlighting have ever been held accountable—that is until the Institute for Justice filed a lawsuit on behalf of Erma Wilson in April.
In 2000, Erma was arrested for possession of a controlled substance after officers claimed to have found drugs near her on the ground in a high-crime area. The officers told Erma that unless she told them who the drugs belonged to, she would be taken to jail. 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. She was convicted. And it would be two decades before records revealed that Petty, while also a prosecutor, was the law clerk on Erma’s case.
The lasting consequences of Erma’s conviction run much deeper than the eight years of probation she received. Since she was 9 years old, Erma has dreamed of becoming a registered nurse. But Texas denies registered nursing licenses to people convicted of drug-related offenses. So Erma’s dream has gone unfulfilled. Unable to pursue her chosen career, Erma has at times struggled to make ends meet and provide for her children because employers were hesitant to hire someone with a felony record.
Erma is now 20 years into a lifelong punishment despite never receiving a fair trial. And though nothing can be done to give her those years back, she can fight to hold the wrongdoers accountable and ensure that similar violations do not happen to others.
Erma’s fight is also a chance for IJ to take on the pernicious doctrine of “prosecutorial immunity.” This judge-made doctrine makes a mockery of constitutional protections by shielding prosecutors from liability even for flagrant constitutional violations. And as those familiar with IJ’s Project on Immunity and Accountability know, such doctrines are almost always successful. But though fighting back against them isn’t easy, IJ is prepared to tackle these doctrines head on and demonstrate their inapplicability to this case and beyond.
When government actors abandon the Constitution’s most fundamental demands, the law must hold them responsible. So, too, for Ralph Petty and Midland County.
Alexa Gervasi is an IJ attorney.
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