USA TODAY International Edition

Moonlighti­ng DA could mean new trial for inmate

- Jessica Priest

For decades, Ralph Petty spent his days as a prosecutor for the Midland County District Attorney’s Office trying criminal cases before a slate of judges and winning hundreds of conviction­s in the process.

But in his free time, he moonlighte­d as a paid clerk for the same judges before whom he argued his cases on behalf of the state. In some cases, he helped write the judges’ orders on his own cases.

According to attorneys for at least one of those defendants, death row inmate Clinton Young, working as a judicial clerk gave Petty access to confidential informatio­n that gave him an unfair advantage as a prosecutor.

Even if he did not use this informatio­n, Young’s at

torneys said, Petty’s special relationsh­ip with the judges shattered the appearance of impartiali­ty, which is one of the keys to the constituti­onal guarantee of a fair trial.

All told, Petty – who is now 78 and left the DA’s office in June 2019 – did legal work for at least nine judges involving the conviction­s of at least 355 defendants whom he prosecuted, according to a USA TODAY analysis of Midland County Auditor’s and Treasurer’s records dating back to 2000. Records before then were not available.

The sentences of those Petty helped convict range from probation to the death penalty. Seventy- three of them remain imprisoned. Many have since died.

Ironically, it is Young, the death row inmate, who may have the best chance of seeing his case overturned. Inmates facing execution are provided a lawyer to challenge their conviction­s. But after they lose their appeal, defendants not facing the death penalty must hire their own attorneys to challenge their conviction­s or navigate the legal system on their own. Those without the financial resources often file hastily scribbled diatribes that judges quickly toss aside for failing to adhere to legal standards.

Petty’s double- dipping was no secret. His work was sanctioned by county officials and documented in public invoices. In all, he earned $ 262,650 clerking for judges from 2000 to 2018, the auditor’s and treasurer’s records show.

The earnings came on top of his base annual salary, which was $ 151,950.71 when he retired.

The moonlighti­ng escaped broad attention until August 2019, two months after Petty’s retirement, when current Midland County District Attorney Laura Nodolf unearthed it while researchin­g other billing matters.

Nodolf ’s discovery, which she described recently as “infuriatin­g,” occurred just two weeks before an evidentiar­y hearing in the ongoing attempt by Young to appeal his 2003 conviction.

Young was 18 years old when he and three other men joined in a 2001 crime rampage left two people dead on opposite ends of Texas.

Petty was part of the legal team that convicted Young in a high- profile capital murder trial two years later. On April 11, 2003, jurors returned a guilty verdict and sentenced Young to death.

What neither the jurors nor Young’s attorneys knew was that Petty was clerking for the judge presiding over the case, John Hyde, who since has died.

“It is a breach of ethical conduct by both of them,” said Elsa Alcala, a former Texas Court of Criminal Appeals judge referring to Petty and the judge. “I don’t know what they were thinking.”

Even after the conviction, Petty continued to work both sides of the bench in Young’s case. As prosecutor, Petty was responsibl­e for opposing Young’s appeals and writs. At the same time, though, he billed the county for work he did consulting with the judge who recommende­d that the Texas Court of Criminal Appeals deny Young’s appeals.

Citing Petty’s arrangemen­t with the court as a “direct violation” of various ethical standards, Nodolf recused her office from the Young case one week after her discovery of the bills.

Now, Young’s attorneys are seeking a new trial for their client.

In a court filing, Young’s legal team said that “the risk of a fundamenta­lly unfair proceeding resulting from a trial judge employing a prosecutor as a judicial clerk, while that prosecutor is still representi­ng the state in that Judge’s courtroom, is so inherently violative of due process that there is scant precedent discussing it.”

The state of Texas agreed with Young’s attorneys. In its own court filing, it acknowledg­ed that Petty’s relationsh­ip with the judge constitute­d a conflict of interest and may have deprived the defendant of a fair trial.

The court is now reviewing whether to vacate Young’s conviction and sentence and grant him a new trial.

It is unclear is whether Petty will face consequenc­es for his actions. Thus far, he has endured no profession­al sanctions, no legal action and no attempt to recoup the money he earned while violating multiple ethical standards.

“The State Bar has largely given prosecutor­s a pass,” said Mike Ware, executive director of the Innocence Project of Texas. “That sends a strong message to prosecutor­s that they do not need to concern themselves with ethics or playing by the rules.”

In an interview with USA TODAY, Petty said he did nothing wrong. He said he worked for the state, not the judges. The judges asked him to respond to writs of habeas corpus on behalf of the district attorney’s office during his off hours because no one in that office was doing so, he said.

“There was no unfair advantage for anyone. None whatsoever. The court was there to determine the truth, and that’s the only informatio­n I gave them was the truth,” Petty said. “The judges insisted on paying me for the work I did on my own time.”

None of the eight living judges Petty worked for responded to multiple requests for comment from USA TODAY. Young’s lawyers say Petty rebuffed their attempts to interview him, telling them, “good luck finding me!” according to court documents.

In January, Petty declined to attend a hearing in Young’s case that was scheduled to determine whether his misconduct should result in a new trial for the death row inmate. In a letter to the court, Petty said he was in poor health and feared contractin­g the coronaviru­s.

Petty could have attended from his own home. The hearing was held via videoconfe­rence. Through his lawyers, Petty also said he would invoke his Fifth Amendment right not to provide incriminat­ing testimony at the hearing.

Hiding in plain sight

Weldon Ralph Petty Jr. graduated from the University of Houston in May 1973 and obtained his law license in September of that year.

He worked as a prosecutor in Grayson, Bell and Ector counties but spent the bulk of his career in Midland, first moving there in the mid 1980s.

Petty was a fixture in the Midland County District Attorney’s Office by the time Nodolf took office in 2017. It’s unclear when, exactly, Petty started moonlighti­ng for the judges, but evidence of the arrangemen­t had been hiding in plain sight for nearly two decades.

His 2001 employment contract with the DA’s office indicated he had worked for the judges before and stipulated that he would “continue the performanc­e of legal services for the district judges.”

In 2002, Judge Hyde, who died in 2012, asked Midland County Attorney Russell Malm whether Petty could be paid both by the prosecutor’s office and the judges. Malm said during his testimony at a January hearing in Young’s case that he approved the payments because he was told Petty would not be working for the judges on cases he pursued as a prosecutor.

Petty’s work continued despite an unequivoca­l ruling from Texas’ top criminal court about such conflicts of interest. In an unrelated case from 2016, it vacated the sentence of a Midland County man after learning Judge Robin Malone Darr had signed a legal document waiving that man’s right to a jury trial when she was a prosecutor.

“The Texas Constituti­on and the Texas Code of Criminal Procedure both require the disqualification of a judge who has previously participat­ed as counsel for the State in a pending matter,” the court wrote.

The law was designed, the judges wrote, to guard against actual judicial bias and even the appearance of it.

Nodolf said she was aware that judges would often summon Petty into open court to get his legal opinion on matters. But she was unaware he was being paid on the side to work on cases he had also worked on as a prosecutor.

Two years later, Nodolf noticed the judges’ payments to Petty while scrolling through a spreadshee­t from the treasurer’s office. The discovery made her “furious,” she said, but Petty remained listed as a senior staff attorney on her office’s website well into 2020.

“As the district attorney, I should know everything going on in this office,” she said. “And to not know this was infuriatin­g.”

At least 15 legal experts, most of whom were not involved in Young’s case, have said Petty’s behavior violates the U. S. and Texas constituti­ons, Texas law and previous court rulings.

Numerous potential errors

Young grew up poor and abused in East Texas.

In 2001, the 18- year- old found himself with three older men on a methamphet­amine- fueled two- day crime spree that began in Longview. It ended 500 miles later with Young leading police on a high- speed chase in a vehicle stolen from one of the murdered men.

At his trial, Petty and fellow prosecutor­s portrayed the troubled teen as a serial killer who shot 51- year- old Doyle Douglas and 54- year- old Samuel Petrey in cold blood.

But since his conviction in 2003, Young’s lawyers have uncovered serious questions that indicate Petty’s doubledipp­ing may not have been the only ethical breach in his case. They discovered prosecutor­s had made deals with his codefendan­ts in exchange for their testimony against Young but never disclosed that informatio­n to jurors.

The lawyers also found that Petty had failed to disclose to them a taped interview in which one of the codefendan­ts, David Page, admitted that he had kidnapped Petrey at gunpoint and purchased gloves found near the victim’s body. The gloves contained gunshot residue and Page’s DNA.

The Texas Court of Criminal Appeals delayed Young’s scheduled 2017 execution to allow an investigat­ion into Page’s role in the crimes.

The biggest developmen­t, though, came as a 2019 hearing approached to consider evidence of Page’s culpabilit­y. Nodolf took the highly unusual step of recusing the prosecutor’s office from Young’s case. In court records, Nodolf admitted that Petty’s actions appeared to be a “direct violation” of Texas Disciplina­ry Rules of Profession­al Conduct for lawyers.

Since then, Young’s attorneys have filed a 58- page applicatio­n seeking a new trial in which they outline the problems Petty’s moonlighti­ng caused – among them the unfair advantage he had working both sides of the bench.

Hundreds of conviction­s in doubt

Months after she recused her office from Young’s case, Nodolf sent letters to 213 of the 355 defendants whose writs Petty worked on simultaneo­usly for the prosecutio­n and judge. “This is a potential violation of the rules of ethics for attorneys. If you have any further questions about any impact this might have on your case, we suggest you consult with an attorney,” she wrote.

Some of the other defendants affected by Petty’s conduct have begun to fight their conviction­s, but they face long odds. Unlike Young, who is afforded attorneys to help appeal his case by virtue of his death sentence, Texas law doesn’t provide poor defendants with lawyers, and there are few who will represent them for free.

Derrick D. Walton received Nodolf ’s letter 13 years into a 45year sentence for a fatal shooting he says he didn’t commit. A nonprofit,

House of Renewed Hope, agreed to represent him.

Now, he’s waiting for the DA’s office to respond to his requests for informatio­n.

“It’s like they have no consequenc­es for their actions,” Walton said.

Nodolf received about a dozen written replies to her letter, according to records obtained by USA TODAY.

One defendant, Garland Epting, who was convicted of theft, filed his own challenge based on Petty’s involvemen­t. Judge Tryon Lewis, a former Republican state representa­tive, sided with the prosecutio­n, which said, in part, that Epting’s conviction should be upheld because he exceeded the two- page limit to make each of his arguments.

Alcala, the former Criminal Court of Appeals judge, said the Texas Legislatur­e should require courts to appoint lawyers for defendants who can show they suffered an error in their case.

State Rep. Joe Moody, D- El Paso, a former prosecutor and defense lawyer who has served on the Texas House Committee on Criminal Jurisprude­nce, said he would support legislatio­n requiring that and wasn’t opposed to writing a bill himself.

Slim odds for punishment

In Texas, where prosecutor­s’ offices are often a springboar­d for legal careers, relationsh­ips can become cozy and accountabi­lity is scarce.

Experts say one reason for that is defense attorneys must weigh possible repercussi­ons not only to their clients but their own livelihood­s. Complainin­g about a prosecutor could affect their willingnes­s to offer their clients plea bargains. A judge might stop giving court appointmen­ts needed to keep their solo practice afloat.

At the January hearing, the lawyer who represente­d Young during his original trial said he was unaware of Petty’s work for the judges in 2003. Asked whether he would have taken action at the time, Paul Williams equivocate­d.

“I think I would’ve, but I don’t know if I can give you a definitive answer one way or another,” Williams said.

But even if an attorney were to complain to the bar, which oversees lawyers, odds that a prosecutor would face punishment are slim.

The state bar has received nearly 400 complaints about prosecutor­s since 2013, but only 11 prosecutor­s were publicly discipline­d for misconduct.

Most of the time, a committee of lawyers and lay people meet behind closed doors to determine whether the prosecutor committed misconduct, their punishment, and whether the public should know about it. They’re supposed to use the Texas Rules of Disciplina­ry Procedure as a guide.

It recommends violations be kept private if they are isolated, the result of negligence and do little to no harm. The rules prescribe stronger consequenc­es for what’s described in Midland, though, including potential disbarment.

Oversight of judges is equally opaque.

The State Commission on Judicial Conduct dismisses the vast majority of the more than 1,000 complaints it receives each year without adequate explanatio­n, according to a recent report to the Texas Legislatur­e. In 2020, fewer than 5% of cases opened by the commission resulted in disciplina­ry action, down from 9% in 2015.

Neither Petty nor the judges he worked for have public disciplina­ry histories. At least four of the judges remain on the bench. A fifth was promoted to overseeing judges in a 38- county region.

Judge Sid Harle, who presides over Texas’ 4th administra­tive judicial region, is expected to decide in the coming months whether Young should get a new trial because of Petty’s actions.

Young, meanwhile, waits in solitary confinement on Texas death row, where he has lived for nearly half of his 37 years. The irony that it is he – the only subject of Petty’s misconduct who faces execution – who may have the best chance of seeing his conviction overturned is not lost on him.

“They were obsessed with killing me, and that automatica­lly gave me attorneys,” he said in an interview with USA TODAY. “It’s kind of poetic in a way. They are providing me with the key that’s going to get me out of here.”

 ?? PROVIDED BY JESSICA VILLERIUS ?? Clinton Young, 37, has been on death row in Texas for nearly half his life.
PROVIDED BY JESSICA VILLERIUS Clinton Young, 37, has been on death row in Texas for nearly half his life.
 ??  ?? Petty
Petty
 ?? JESSICA VILLERIUS ?? Clinton Young, who sits in solitary confinement on death row, faces execution for murders he says he did not commit. Now he hopes to see his conviction overturned. “They were obsessed with killing me,” he says.
JESSICA VILLERIUS Clinton Young, who sits in solitary confinement on death row, faces execution for murders he says he did not commit. Now he hopes to see his conviction overturned. “They were obsessed with killing me,” he says.
 ??  ?? Ralph Petty of the Midland County, Texas, DA’s office was paid to do legal work for at least nine judges involving the conviction­s of at least 355 defendants whom he prosecuted.
Ralph Petty of the Midland County, Texas, DA’s office was paid to do legal work for at least nine judges involving the conviction­s of at least 355 defendants whom he prosecuted.
 ??  ?? Walton
Walton

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