Entire Fifth Circuit To Decide Whether Texas Woman Can Sue Prosecutor Who Secretly Worked For Judge Presiding Over Her Case

NEW ORLEANS—Tomorrow, 18 judges of the 5th U.S. Circuit Court of Appeals will convene to decide whether Erma Wilson is entitled to her day in court—or whether a prosecutor who spent nearly two decades secretly working as a law clerk for the same judges who decided the cases he prosecuted will escape accountability.

The case matters for civil-rights plaintiffs across the country, but it matters especially for the plaintiff, Erma Wilson. Erma was convicted of a drug offense in Midland County, Texas, nearly two decades ago. The charges were minor—she never served any time in jail—but the conviction derailed her lifelong dream of becoming a nurse. And she was shocked to learn, years after, that her conviction was obtained by breaking one of the most fundamental rules of constitutional law: Judges must be neutral, which means that your prosecutor and judge cannot be the same person. In Midland County, though, they weren’t. For nearly twenty years Midland County, Texas, employed Ralph Petty as both a prosecutor and the righthand advisor to the judges hearing his own criminal cases. That system resulted in convictions for people like Erma—who maintains her innocence to this day—and even to death sentences.

Outraged, Erma teamed up with the Institute for Justice (IJ) to sue over this blatant violation of the Constitution—only to be told she couldn’t. A three-judge panel of the Fifth Circuit recognized that Petty’s “dodgy side hustle” as a law clerk to the very same state judges presiding over his criminal prosecutions resulted in an “utterly bonkers” violation of the basic rules of fairness. But the panel nonetheless held that Erma was not entitled to her day in court: An old precedent of the court said that because her criminal conviction was still on the books (even though her sentence was long over before Petty’s misconduct came to light), she was not allowed to bring constitutional claims against the people who violated her rights. Now, the full circuit court will sit to decide whether to change that rule and give plaintiffs like Wilson a chance to vindicate their rights in federal court.

“This case is about whether a long-ago criminal conviction can close the courthouse doors to even the most compelling constitutional claims,” said IJ Attorney Jaba Tsitsuashvili. “What Midland County did here violated the Constitution at a bedrock level, and Erma is entitled to seek justice in federal court.”

“The judges recognized that what happened to me was unfair, unconstitutional, and ruined my dreams,” said Wilson. “I’m grateful that the full court is re-hearing my case. And I’m hopeful that they will reverse the rule that keeps me and so many other people from vindicating our constitutional rights.”

The Institute for Justice is a nonprofit organization that has worked to protect the constitutional rights of all Americans for 30 years. The lawsuit is part of IJ’s Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the rules. If citizens must follow the law, then government must follow the Constitution. 

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To arrange interviews on this subject, journalists may contact Phillip Suderman, IJ’s Communications Project Manager at [email protected] or (850) 376-4110. More information on the case is available at: https://ij.org/case/midland-prosecutor/