For decades, Ralph Petty spent his days as a prosecutor for the Midland County District Attorney’s Office trying criminal cases before a slate of j
For decades, Ralph Petty spent his days as a prosecutor for the Midland County District Attorney’s Office trying criminal cases before a slate of judges and winning hundreds of convictions in the process.
The chain-smoking assistant DA was known as a legal scholar to his peers in this west Texas community where the wind blows hard and uninterrupted, and oil pump jacks dot the flat countryside.
But in his free time, Petty did something that now casts doubt on hundreds of cases he prosecuted.
For years, 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 confidential information that gave him an unfair advantage as a prosecutor.
Even if he did not use this information, Young’s attorneys 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 office in June 2019 – performed 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 financial resources often file hastily scribbled diatribes that judges quickly toss aside for failing to adhere to legal standards.
“It’s hard enough to represent yourself from a prison cell on the other side of the state, but when you’re going up against the prosecutor working for the judge, it’s like the Washington Generals playing against the Harlem Globetrotters – the outcome is preordained,” said Josh Schaffer, a Houston-based attorney who specializes in post-conviction writs.
Petty’s double-dipping was no secret. His work was sanctioned by county officials and documented in public invoices. In all, Petty 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-profile capital murder trial two years later. Petty’s roles in the case included amending Young’s indictment, examining witnesses at a pretrial hearing and writing the instructions that jurors took with them to deliberate.
On April 11, 2003, those jurors returned a guilty verdict and sentenced Young to death.
What neither the jurors nor Young’s attorneys knew at the time 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. Court filings show that Hyde submitted a document using language identical to what Petty had proposed in Young’s case.
Citing Petty’s arrangement with the court as a “direct violation” of various ethical standards, Nodolf recused her office from the Young case one week after her discovery of the bills.
Now, Young’s attorneys are seeking a new trial for their client based on Petty’s relationship with the judge.
In a court filing, 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 filing, it acknowledged that Petty’s relationship with the judge constituted a conflict of interest and may have deprived the defendant of a fair trial.
“The State did not easily arrive at the conclusion that it must join Applicant in urging this Court to authorize the Fourth Subsequent Writ Application,” it wrote. “But the factual allegations in the writ application, combined with the independent documents and records confirming them, amount to an extraordinary, if not unprecedented situation which potentially undermined the structural and procedural due process rights of Applicant at his capital trial proceeding.”
The court is now reviewing whether to vacate Young’s conviction and sentence and grant him a new trial. Both parties asked for an expedited review of the matter.
It is unclear 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.”
Generally, Midland defense attorneys were unfazed when asked about Petty’s work.
“Ralph is very honorable. He would never tell a judge how to rule,” said attorney Tom Morgan, who represented at least 11 defendants in cases in which Petty later worked for the judges.
Another defense lawyer, Brian Carney, said, “Ralph is extremely honest, so if he gave an opinion to one of the judges, it was an opinion based on the law.”
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 office during his off hours because no one in that office 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 rebuffed their attempts to interview him, telling them, “good luck finding 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.
“My appearance at a hearing on the Clinton Lee Young matter should not include a possible death sentence,” he wrote.
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.
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, first moving there in the mid 1980s.
A slight man with receding white hair and wire-rimmed glasses that sometimes slide down his nose, Petty was a fixture in the Midland County District Attorney’s Office by the time Nodolf took office in 2017.
County leaders congratulated him on his notable career during a public meeting as he retired in 2019. Acknowledging the recognition, Petty said, “I assure you that all the work I have done for the county of Midland over the 40 years, all the forms that I have created, the hundreds of thousands of pages or so of organized criminal law that we have on our computer here, will stay.”
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 office 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 office 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 conflicts 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 disqualification 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 county treasurer’s office. The discovery made her “furious,” she said, but Petty remained listed as a senior staff attorney on her office’s website well into 2020.
“As the district attorney, I should know everything going on in this office,” 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.
Petty’s relationship with the judges eliminated the appearance of impartiality if not their actual impartiality by allowing him to make arguments defendants couldn’t rebut, said Allison Clayton, deputy director of the Innocence Project of Texas, which violated their constitutional right to a fair trial.
“You don’t have to be a lawyer to know that this is wrong,” Clayton said.
Young grew up poor and abused in East Texas. His biological father once beat him with a two-by-four. His alcoholic, abusive stepfather ridiculed him mercilessly, fired a nail gun at him and beat him until he bled.
By age 15, he was serving time for theft at the Jefferson State School in Texas’ notoriously violent and dysfunctional juvenile prison system. Employees at the school have said joining a gang there was a “method of self-preservation.”
Six months after his release in 2001, the 18-year-old found himself with three older men on a deadly 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 double-dipping may not have been the only ethical breach in his case.
They discovered prosecutors had made deals with his co-defendants 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 office from Young’s case.
In court records, Nodolf said she had inadvertently discovered Petty’s dual role in 2019. She 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 filed a 58-page application seeking a new trial for their client in which they outline the problems Petty’s moonlighting caused – among them the unfair advantage he had working both sides of the bench.
“Indeed,” the attorneys wrote, “there are instances where the Midland DA learned confidential information that was submitted by Young’s defense to Judge (John) Hyde ex parte and in camera, creating at least a reasonable inference that Petty was conveying information he learned from his role as a Judge Hyde’s clerk to the Midland DA (where Petty worked full time).”
Months after she recused her office 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 affected by Petty’s conduct have begun to fight their convictions, but they face long odds. Unlike Young, who is afforded 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 45-year sentence for a fatal shooting he says he didn’t commit. In 2011, Walton filed an unsuccessful writ with help from his cellmate, arguing that his trial attorney was ineffective and there was insufficient evidence to sustain the guilty verdict.
Walton worried that with his cellmate gone, he wouldn’t be able to file another challenge. But a nonprofit, House of Renewed Hope, agreed to represent him. Now, he’s waiting for the DA’s office 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, filed 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. Lewis was appointed to the case after Judge Dean Rucker recused himself from the case. Lewis was not among the judge who paid Petty, but records show Rucker was.
Two other defendants’ requests for court-appointed lawyers are pending.
Alcala, the former Criminal Court of Appeals judge, said the Texas Legislature should require courts to appoint lawyers for defendants who can show they suffered a previous error in their case.
“What we have now,” she said, “is judge A may do it because judge A wants to and judge B may not do it because judge B doesn’t feel like it. That can’t be what justice is about.”
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.
“There’s a cost associated with it, and I’m sure some people would have an objection to that. But when you look at wrongful incarceration or someone’s constitutional rights being violated, it’s hard to put a price tag on that.”
In Texas, where prosecutors’ offices 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 affect their willingness to offer their clients plea bargains. A judge might stop giving court appointments needed to keep their solo practice afloat.
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 definitive answer one way or another,” Williams said.
Brent Morgan, another Midland defense attorney, said it was the responsibility of his clients who had been affected by Petty’s misconduct – not him – to file a complaint with the State Bar of Texas.
“Since my representation of them is now over, it’s up to them to decide,” he 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.
But records show the punishment often varies for prosecutors who break rules. One prosecutor was suspended for 90 days and fined about $1,000 for not disclosing potential sentencing deals she made with co-defendants in exchange for their testimony in a murder trial. Another received an 18-month fully probated suspension and was ordered to take six hours of continuing legal education for withholding evidence and violating a gag order in a capital murder trial.
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 fifth 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 ought to get a new trial because of Petty’s double-dipping.
Young, meanwhile, waits in solitary confinement 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.”