Texas attorney Weldon Ralph Petty Jr was a busy guy at the Midland County courthouse. By day he appeared before judges as an assistant district attorney. By night, he worked as a law clerk for some of the same judges, sometimes advising them regarding the criminal cases he was prosecuting. This went on for more than a decade.
You don’t have to be a legal ethics whiz to figure out that such conduct isn’t ethical. Prosecutors are barred from privately communicating with judges about cases or matters even indirectly related to their cases. Judges and their clerks are forbidden from disclosing the discussions and in chambers considerations regarding cases to prosecutors or defense attorneys.
Thus Petty, 78, was flagrantly violating ethics rules by simultaneously acting as a prosecutor and a paid adviser to supposedly impartial judges, who were also breaching judicial ethics to a spectacular degree by allowing him to do so. A February story published by USA Today first reported that Petty was paid by judges as a clerk in at least 350 cases from 2001 until his retirement as an assistant district attorney in mid-2019. Seventy-three defendants, maybe more, that Petty prosecuted are in prison. A court opinion issued April 28 calls for overturning Midland County’s only death penalty case due to Petty’s prosecutorial misconduct and the judge’s failure to recuse himself, so Clinton Lee Young, who has been on death row since Petty prosecuted him in 2003, will get a new trial.
Petty surrendered his law license to avoid being disbarred—you know, like Bill Clinton did in Arkansas— and is likely to avoid any other sanctions. This is Texas, after all; formal disciplinary action against a current or former prosecutor is rare everywhere, and it is extremely rare in the Lone Star State.
In his opinion regarding Young’s case, judge Sid Harle described Petty’s behavior as “shocking prosecutorial misconduct that destroyed any semblance of a fair trial.” Harle found that Petty violated Young’s due process rights, and that Judge John Hyde, who employed Petty while he presided over the trial, should have disqualified himself from the case. Harle has recommended that all judgments entered against Young to be declared “null and void.”
Petty’s conflicts of interest as well as the dual state paychecks he received for continuing them were allowed to continue under two previous elected district attorneys in Midland, who also failed to disclose his conflicts to defendants and their attorneys, including Young’s lawyers. Petty’s contract in 2001 allowed moonlighting, which would have been permissible if the moonlighting didn’t involve the cases he was prosecuting or judges he was appearing in front of in court. The district attorneys did nothing to stop Petty’s misconduct even after his paychecks from the prosecution and from the judiciary were questioned by the Internal Revenue Service in a 2008 audit.
Finally, the current Midland County District Attorney, Laura Nodolf, discovered Petty’s moonlighting in August of 2019 and disclosed it.
The judge who presided presided over Young’s trial is now dead, but some of the other judges who assisted Petty in his ethics breach are still alive and on the bench All of them were complicit in denying defendants their constitutional rights to a fair trial. It remains to be seen if they will be sanctioned. Even if they are, the fact that something like this could happen at all, and for so many years, should have ethics alarms sounding throughout the justice system, and not only in Texas.
Pointer: The Association of Professional Responsibility Lawyers