ARLINGTON, Va — Two decades ago, Midland County resident Erma Wilson was convicted of a minor drug crime, upending her lifelong dream of becoming a nurse. She did not know a prosecutor was working on her case as a law clerk for the presiding judge. When she found out about this egregious conflict of interest, she sued. Now, the 5th U.S. Circuit Court of Appeals has ruled that despite the violation of her federal constitutional rights, she cannot sue in federal court. The decision, which was issued on Friday, September 13, was divided: Six of the court’s 18 judges “emphatically” disagree with the outcome. Following the decision, Erma, who is represented by the Institute for Justice (IJ), decided that she will ask the United States Supreme Court to take up her case.  

“Erma deserves her day in court, as guaranteed by the Constitution and the law Congress passed to vindicate such egregious rights violations,” said IJ Attorney Jaba Tsitsuashvili. “The courts are deeply divided on this vital issue of access to justice, and we look forward to seeking vindication for Erma at the Supreme Court.”  

The charges leveled against Erma 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 appear to be on the same side. For nearly twenty years, the county employed Ralph Petty as both a prosecutor and the righthand advisor to the judges hearing his and his colleagues’ criminal cases. That system resulted in convictions for people like Erma—who maintains her innocence to this day—and even death sentences for others.  

In 2022, Erma teamed up with IJ to file a federal lawsuit to hold the county and the prosecutor accountable for violating her constitutional rights. She sued under a federal statute known as “Section 1983,” which Congress passed following the Civil War to ensure that victims of constitutional wrongs committed by state agents could sue in federal court. Today’s ruling means that law is unavailable to plaintiffs like Erma, unless they first persuade state officials to invalidate the underlying conviction—a tall order that precludes many Americans from holding government officials accountable. 

In registering their dissent from the decision, the six judges wrote that the court “unjustifiably limit[s]” the “plain breadth of [Section] 1983” and leaves plaintiffs like Erma Wilson “violated but not vindicated.” Those judges held out hope that “the Supreme Court will at last confront the persistent circuit split” on this issue of constitutional accountability and “vindicate a bedrock constitutional guarantee” of fair judicial proceedings.   

“When state officials violate the federal constitution, federal courts are supposed to step in,” explained IJ Deputy Director of Litigation Robert McNamara. “Today’s ruling says they cannot, but we hope and expect the Supreme Court to take the dissenters up on their request to set this case aright.” 

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/