Ralph Petty worked as an assistant district attorney in Midland County, Texas, for 20 years. Like any prosecutor, he fervidly advocated for the government. But he wasn’t just any advocate, because he wasn’t just a prosecutor. Each night, Petty took off his proverbial DA hat and re-entered the courthouse as a law clerk for the same judges he was trying to convince to side with him by day.
His unethical side hustle hinged on tipping the scales in the government’s favor, discreetly writing opinions and orders that ruled in favor of the prosecution—also known as himself—and accessing materials confidential to the defense. For two decades, Petty managed a covert balancing act: He was both prosecutor and de facto judge, pocketing an extra $250,000 for his dishonest services.
In over 300 cases, the accused were denied their due process rights due to Petty’s misconduct. Among his first victims was Clinton Young, the Texas man who was inching toward execution after entering death row in 2003 for a murder he maintains he did not commit. The conviction was overturned in 2021, and Young was released on bond in January pending a new trial.
Yet while Petty may have stolen years off people’s lives—and, in Young’s case, almost sent someone to die—it may be almost impossible to hold him accountable, thanks to assorted immunity doctrines that provide government agents with a near-impenetrable shield against facing victims in civil court. The safeguard given to prosecutors is extra thick, affording them absolute immunity for duties carried out in their official scope, meaning they can knowingly impanel false testimony or introduce fabricated evidence and still be protected.
One of Petty’s victims is willing to try. In a lawsuit filed yesterday in the U.S. District Court for the Western District of Texas, Erma Wilson alleges she was wrongly convicted of drug possession when Petty mangled her case and subverted her due process rights. After declining multiple plea deals and insisting on a trial—something exceedingly rare these days—she received an eight-year suspended sentence. And though she did not actually spend time behind prison walls, she is still feeling the ripple effects of her 2001 conviction, unable to fulfill her girlhood dream of becoming a nurse due to Texas licensing laws that disqualify people with certain felony offenses. Meanwhile, the Supreme Court of Texas disbarred Petty in 2021, two years after he retired.
“All I want now is to hold Petty and Midland County’s entire judicial system accountable, so other prosecutors will think twice before violating the people’s rights,” Wilson said in a statement. “There is nothing that can be done to give me back the past 20 years of my life or my missed nursing career, but I can ensure that similar violations don’t happen to others.”
Whether or not Wilson will even get the privilege to appear before a jury to ask for damages is unclear. It will continue to be elusive for years, as her attorneys work their way through the courts, asking a series of judges to deny Petty immunity for his dealings.
The vast majority of like-minded suits are dead on arrival, thanks to the absolute protections given to prosecutors for job-related malfeasance. An example: A federal court shielded District Attorney Samuel D’Aquilla of Jackson, Louisiana, from any civil litigation after he sabotaged a rape case against his colleague in the justice system—then an assistant warden at the Louisiana State Penitentiary—brought by a woman who alleged the man had brutally raped her multiple times on prison grounds. “In 99 percent of cases when you try to bring in a prosecutor as a defendant, you lose immediately under prosecutorial immunity,” says Alexa Gervasi, an attorney at the Institute for Justice and a lawyer for Wilson. “This lawsuit seeks to change that.”
They may have a shot. Core to the current framework is that DAs are protected so long as the alleged wrongdoing occurred in the context of the job. Petty was indeed acting as a prosecutor. But he was also acting as a lot more—assuming the position of a law clerk. The case “is a stepping stone toward upending prosecutorial immunity,” says Gervasi. “What this case will do is show why absolute immunity in any respect is wrong. It creates incentives to do wrong and to violate the Constitution.” Why abide by our founding charter when you know you have nothing to lose?
If they defeat prosecutorial immunity, Gervasi and Wilson will also have to overcome qualified immunity, the legal doctrine that allows state and local government actors to infringe on your rights if the precise way they allegedly did so has not been baked into a prior court ruling. The criminal-justice protests in 2020 brought the topic of qualified immunity to the fore, as it sometimes protects police officers for doing things like stealing, shooting children, and destroying innocent people’s property if plaintiffs are unable to find a pre-existing precedent with very similar factual circumstances. But prosecutors may also be entitled to qualified immunity for the actions taken outside of their official scope of duties when absolute immunity no longer applies.
It’s a fitting microcosm for just how hard it is for victims to seek any sort of meaningful recourse when their constitutional rights are violated by the most powerful people in society. “When you do something wrong, there has to be consequences,” says Gervasi. “Otherwise, rules don’t mean anything.”