Phillip Suderman · February 14, 2024

ARLINGTON, Va.—For nearly two decades, Midland County, Texas, employed Ralph Petty as both a prosecutor and the righthand advisor to the judges hearing his own criminal cases. Erma Wilson is one of hundreds of people whose prosecutions were impacted by that clear conflict of interest—resulting in a false drug conviction that upended her lifelong dream of becoming a registered nurse. But when she sued, seeking accountability under the federal civil rights statute, her case was dismissed under an outdated precedent of the 5th U.S. Circuit Court of Appeals. Now, the full federal appellate court will reconsider that precedent and decide whether Ms. Wilson, represented by the Institute for Justice, can have her day in court.

The original three-judge panel hearing Wilson’s case recognized that “Petty’s dodgy side hustle” as a law clerk to the very same state judges presiding over his criminal prosecutions “flattened Wilson’s constitutional guarantee of a fair trial.” But they held that because Wilson has an outstanding criminal conviction arising from that unjust prosecution, she cannot challenge the prosecutor’s “utterly bonkers” violation of her rights via Section 1983, the federal civil rights statute. Now, the full circuit court will decide whether that precedent is inconsistent with Section 1983.

“We’re delighted that the Fifth Circuit is revisiting its precedent. Congress passed Section 1983 to ensure that victims of prosecutorial misconduct like Ms. Wilson have their day in court,” said Institute for Justice Attorney Jaba Tsitsuashvili.

The original panel was compelled to reach its conclusion under binding Fifth Circuit precedent, which requires people with unconstitutional convictions to unwind them before suing, “even if it’s practically impossible for them to do so.” That rule conflicts with the majority of federal appellate jurisdictions, which only apply it to incarcerated individuals who have an alternative path to vindicating their rights via habeas corpus. Non-prisoners like Wilson do not have that option, so foreclosing Section 1983 lawsuits leaves them wholly unvindicated. The judges hearing her case expressed their displeasure with the Fifth Circuit’s rule, noting that “this disturbing case … underscores that the American legal system regularly leaves constitutional wrongs unrighted.”

As noted by the panel, “examples abound of non-prisoners with facially meritorious constitutional claims denied their day in court, including Erma Wilson.” Wilson “has suffered the fallout of a criminal justice system that offended the gravest notions of fundamental fairness. She seeks accountability for unconstitutional wrongdoing that upended her life.”

“The judges recognize 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.”

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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: