Back in 2021, an outrageous legal ethics scandal in Texas so disturbed me that I wrote virtually the same post about it twice, once in May and again in September, without realizing it until one of you reminded me. This time, however, I’m not repeating myself.

Former Texas attorney Weldon Ralph Petty Jr prosecuted defendants before Midland County judges as an assistant district attorney, while simultaneously working as a law clerk for some of the same judges, on occasion advising them regarding the criminal cases he was prosecuting. He did this for more than a decade, with the complicity of the judges and his colleagues. Finally another prosecutor blew the whistle on this unethical conduct, which even Fani Willis would recognize as a conflict of interest. Maybe.

Last month Petty, who was disbarred, appeared in the news again.

The double-dipping former prosecutor and Midland County had been sued by Erma Wilson (above), who had been convicted in 2001 of cocaine possession after Midland, Texas police charged her for possession of a bag of crack they said they had found on the ground. Wilson denied that the bag was hers, but she was convicted. The judge suspended her eight-year sentence; nevertheless the felony conviction prevented her from becoming a registered nurse and handicapped her career and earning ability for the past two decades. Long after the eight years had passed, Wilson learned about Petty, and that John G. Hyde, the judge who handed down her sentence after presiding over her case, was one of the judges Petty had advised as a law clerk, tainting her trial.

Yet three judges on the U.S. Court of Appeals for the 5th Circuit unanimously ruled in December that Wilson was barred from suing Petty or Midland County because 42 USC 1983, the federal statute authorizing people to seek damages from state and local officials who have violated their constitutional rights, only applies if the penalty or sentence has been reversed or declared invalid. Wilson served out her suspended sentence, and it is too late, the judges ruled, to reverse it now.

“Today’s result is difficult to explain,” Judge Don Willett wrote for the panel. “What allegedly happened here (and in hundreds of other criminal cases in Midland County) is utterly bonkers: the presiding judge employed a member of the prosecution team as a right-hand adviser.” In  Heck v. Humphrey, a 1994 SCOTUS case, the U.S. Supreme Court said a plaintiff cannot seek damages under Section 1983 for an unconstitutional conviction or sentence without a “favorable termination” of his criminal case. “Favorable termination,” Willett explained, means a plaintiff has to show “the conviction or sentence has been reversed on appeal or otherwise declared invalid, such as by federal habeas relief [but]Petty’s conflicted dual-hat arrangement came to light [in 2021] only after Wilson had served her whole sentence, making federal habeas a non-option.”

“Under our precedent’s expansive reading of Heck, noncustodial plaintiffs must meet the favorable-termination requirement, too—even if it’s practically impossible for them to do so,” the clearly frustrated Willett went on to explain. “Put simply, our rule of orderliness bars relief for the disorderliness that Wilson suffered…This result is unseemly. Absent § 1983, noncustodial individuals on the receiving end of violative conduct, however egregious, will have no federal forum to vindicate their federal constitutional rights. But as a three-judge panel bound by controlling circuit precedent, our hands are tied. Only the en banc [5th Circuit], or the United States Supreme Court, can deliver a different result that better aligns with Congress’ broad textual command in § 1983.”

In other words, “Sorry, you can’t get there from here.” Law over ethics. “The law is an ass,” as as George Chapman first wrote (NOT Charles Dickens!) in 1654. Or “bonkers.”

“The judges recognize that what happened to me was unfair, unconstitutional, and ruined my dreams,” Wilson said in a press release. “I’m hopeful that the full court will hear my case and reverse the rule that keeps me and so many other people from vindicating our constitutional rights.”

I wish her luck.