One of the ubiquitous warnings is that human beings are invariably imaginative in the ways they cross lines no one would ever expect to be crossed. “Who would do such a thing?” is the obvious refrain when someone comes up with an outlandish act for which the law has no good answer. And then someone does it, or some variation of it, and the law is found lacking.
Midland County, Texas, assistant district attorney Ralph Petty did such a thing, though not without the willing complicity of Judge John Hyde, who died in 2012. What he did was unfathomable, except to Petty and Hyde.
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 heavily tipped the scales toward the government as he discreetly wrote opinions and orders that ruled in favor of the prosecution—also known as himself—and accessed 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.
The inherent conflict here is so flagrant, so far beyond any rationalization, as to be staggering. Yet, where can the more than 300 defendants whose cases were tainted by the prosecutor serving as their judge’s law clerk turn for relief? Prosecutors have absolute immunity in their prosecutorial function, as the Supreme Court held in Imbler v. Pachtman, making a suit against Petty under § 1983 a non-starter.
After all, who would pursue such an action knowing that the Supreme Court has already held against them? That would be the Institute for Justice, taking on the case of Erma Wilson.
The problem isn’t that the Supreme Court’s decision in Imbler is necessarily wrong. If prosecutors were subject to suit, whether without immunity or with only qualified immunity, the likelihood that there would be a flood of pro se suits attacking prosecutors is obvious. Every defendant who went to prison is a potential plaintiff, not because they have a case but too much time on their hands and no reason not to sue their prosecutor, even if just for kicks.
And as the Supreme Court noted, there is an alternative incentive to keep prosecutors honest, disbarment. Of course, it almost never happens no matter how egregious the conduct. Then again, Petty was disbarred, so never say never. But disbarment does nothing for the victims of Petty’s and Hyde’s conduct, who lost years, decades of their life to his impropriety. And in the case of Clinton Young, would have lost his life had his wrongful conviction and sentence of death not been reversed, as he awaits a new trial.
There has been a substantial push to demonize immunity of all degrees as merely a judicial evil designed to protect government officials from consequences for their bad conduct. While I try my best not to make people stupider, some people promoting this simplistic vilification have no qualms about doing so to popularize their position with the terminally cluleless. There is good reason to protect prosecutors from being open to random attack for doing their job. But there is also reason to question whether there are lines that can’t be crossed, as Petty did here.
“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.”
What distinguishes Petty’s case from others is that he’s exposed to attack from two sides, that of prosecutor and judge’s law clerk, and the intersection of the two, which doesn’t fit into any recognized category of protection. In other words, by being both prosecutor and law clerk, he was both and neither within the framework of prosecutorial immunity and therefore should not be entitled to its protection.
This is a long shot. A long, long shot, but a shot worth taking. Whether this “upends” prosecutorial immunity is unlikely, even though impropriety by prosecutors such as intentionally playing hide the Brady to convict an innocent person is every bit as unworthy of immunity as Petty wearing two hats.
The generic problem with eliminating prosecutorial immunity, or reducing it to qualified immunity, is that it will likely expose prosecutors to baseless attacks which will still require defense and expose them to the taint of alleged improprieties, as well as well-founded and deserved attacks. Drawing a line to distinguish between the two at the outset is hard, if not impossible, to do. While those of us viewing this challenge from the side of those who suffer prosecutorial impropriety might not be very concerned about the potential for abuse, this is just defense myopia. It would present a huge institutional problem and have a deleterious impact on the functioning of the legal system. To pretend otherwise is foolish.
But in Petty’s case, there is a line to be drawn, where a prosecutor was handed, and took on, a function in direct conflict with the official duties for which immunity attaches. It might not be the death of prosecutorial immunity, but it presents a case where a clear line can be drawn between the prosecutorial function and objectively flagrant impropriety. And thankfully, IJ by Alexa Gervasi, is there to take on the challenge.
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