Trial Court Recommends New Trial for Death-Row Prisoner Whose Prosecutor Secretly Also Served as the Court’s Law Clerk

Finding ​“brazen mis­con­duct” by a pros­e­cu­tor who with­held excul­pa­to­ry evi­dence from the defense and then secret­ly served as the tri­al judge’s law clerk in the case, a Midland County, Texas judge has rec­om­mend­ed that death-row pris­on­er Clinton Young (pic­tured) be grant­ed a new trial. 

In a 30-page factfind­ing order issued on April 26, 2021, Senior Judge Sid Harle exco­ri­at­ed for­mer assis­tant dis­trict attor­ney Ralph Petty and the Midland County District Attorney’s office for ​“shock­ing pros­e­cu­to­r­i­al mis­con­duct that destroyed any sem­blance of a fair tri­al” in Young’s case. That con­duct, which Harle said was known to at least two senior mem­bers of the District Attorney’s office, includ­ed serv­ing as part of the pros­e­cu­tion team that tried Young for mur­der and defend­ed his con­vic­tion and death sen­tence on appeal while simul­ta­ne­ous­ly act­ing as judi­cial clerk and legal advis­er for the judge who was pre­sid­ing over the tri­al and sub­se­quent appeals in the trial court. 

Harle said that Petty vio­lat­ed Young’s due process rights by fail­ing to dis­close his dual role in the case and that tri­al judge John Hyde should have recused him­self or been dis­qual­i­fied as a result of the con­flict. “[T]he bias cre­at­ed by [Judge Hyde’s] employ­ment of Mr. Petty … deprived Mr. Young [of] due process of law” and required Hyde’s dis­qual­i­fi­ca­tion from the case as a mat­ter of law, Harle wrote. ​“The appear­ance of impro­pri­ety in Mr. Young’s case is clear[:] … the court’s law clerk was also the pros­e­cu­tor for the State.” As a result, Harle rec­om­mend­ed to the appeals court that all judg­ments entered against Young at tri­al be declared ​“null and void.”

Harle also sharply crit­i­cized the con­duct of the Midland DA’s office, which he said should have with­drawn or been dis­qual­i­fied from the case because of Petty’s con­flict. Instead, “[t]he Midland DA’s [office] vio­lat­ed its statu­to­ry and con­sti­tu­tion­al oblig­a­tions to pro­tect Mr. Young’s due process right to a fair tri­al by fail­ing to dis­close Mr. Petty’s dual role to Mr. Young or his coun­sel dur­ing tri­al, and by keep­ing secret Mr. Petty’s dual role through Mr. Young’s new-tri­al pro­ceed­ing, direct appeal, and ini­tial post­con­vic­tion pro­ceed­ing.” The uncon­sti­tu­tion­al fail­ure to dis­close Petty’s clear con­flict, Harle wrote, was, ​“unfor­tu­nate­ly, part of a larg­er pat­tern of pros­e­cu­to­r­i­al mis­con­duct” in the case.

Young, who has long main­tained his inno­cence, claimed that pros­e­cu­tors had pre­sent­ed false tes­ti­mo­ny against him from their key wit­ness, David Page. In 2017, after the fed­er­al courts had denied Young’s fed­er­al habeas cor­pus peti­tion, Petty filed a motion before Judge Robert Moore — for whom Petty was also clerk­ing — seek­ing a death war­rant for Young’s exe­cu­tion. Judge Moore set Young’s exe­cu­tion date for October 26, 2017. Young moved to with­draw the war­rant based upon alle­ga­tions that pros­e­cu­tors had obtained his con­vic­tion and death sen­tence with false or per­jured tes­ti­mo­ny from Page. 

Young alleged that gun­shot residue on Page’s gloves and affi­davits from four pris­on­ers that Page had bragged about com­mit­ting the killing and fram­ing Young would show that Page was the actu­al killer. While Young faced an active death war­rant and with­out noti­fy­ing the defense, Petty filed a motion to grant use immu­ni­ty to Page. Midland County District Attorney Laura Nodolf then secret­ly inter­viewed Page, who admit­ted to false­ly impli­cat­ing Young. While Petty argued in court that Young should be exe­cut­ed, Nodolf with­held the infor­ma­tion about Page’s admis­sions. ​“Ms. Nodolf knew that the inter­view need­ed to be dis­closed,” Harle wrote. ​“Yet, nei­ther Mr. Petty nor any­one in the office dis­closed that inter­view until after the Court of Criminal Appeals stayed Mr. Young’s exe­cu­tion when it autho­rized [review of] Mr. Young’s claim that Mr. Page tes­ti­fied false­ly at his trial.”

The tri­al court’s rec­om­men­da­tion will now go to the Texas Court of Criminal Appeals, which will issue a final rul­ing on whether Young will receive a new trial.

Petty’s undis­closed con­flict extends far beyond Clinton Young’s case and taints a gen­er­a­tion of Midland County tri­als. For at least 19 years, Petty worked part-time as a law clerk for sev­er­al judges while also work­ing full-time as a Midland County pros­e­cu­tor. A USA Today inves­ti­ga­tion of avail­able records, which cov­ered the peri­od from 2000 to 2019, when Petty retired from the prosecutor’s office, uncov­ered at least 355 cas­es in which Petty pros­e­cut­ed a defen­dant while also per­form­ing legal work for the judge try­ing the case. Seventy-three of those defen­dants, includ­ing Clinton Young, remain in prison, with 21 serv­ing sen­tences of 50 years or more. Records show that Petty was paid at least $1,500 by the judge for post­con­vic­tion work in Young’s case while also work­ing as a pros­e­cu­tor oppos­ing Young’s appeals. In an act of judi­cial ​“rub­ber­stamp­ing,” Judge Hyde issued an order dis­miss­ing Young’s claims that was vir­tu­al­ly iden­ti­cal to the find­ings and order Petty had sub­mit­ted on behalf of the prosecution.

In an unusu­al turn of events, with the Midland County District Attorney’s office recused from the case, the state of Texas filed briefs sup­port­ing Young’s request for a new tri­al. ​“The State did not eas­i­ly arrive at the con­clu­sion that it must join Applicant in urg­ing this Court to autho­rize [Young’s] Writ Application,” it stat­ed. ​“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.” 

Elsa Alcala, a for­mer judge on the Texas Court of Criminal Appeals, told USA Today “[i]t is a breach of eth­i­cal con­duct by both [Petty and the judge]. I don’t know what they were think­ing,” she said.

Petty, who was declared an unavail­able wit­ness in the recent hear­ings after his lawyer sent a let­ter to the court say­ing he would invoke his Fifth Amendment priv­i­lege against self-incrim­i­na­tion if ques­tioned about his actions, insists that his work did not vio­late legal ethics. ​“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,” he said. 

Shortly after Petty retired in 2019, Nodolf came across records of Petty’s actions while look­ing into billing mat­ters. Her pre­de­ces­sor had not informed her of Petty’s arrange­ment with the courts. Nodolf described her dis­cov­ery as ​“infu­ri­at­ing” and imme­di­ate­ly recused her office from Young’s case, call­ing Petty’s work a ​“direct vio­la­tion” of ethics standards.

Facing for­mal dis­ci­pline, Petty sur­ren­dered his law license. In an April 13, 2021 order pro­hibit­ing Petty from prac­tic­ing law in Texas, the Texas Supreme Court wrote that Petty’s res­ig­na­tion from the bar ​“is in the best inter­est of the pub­lic [and] the pro­fes­sion. … Therefore, the law license of Weldon Ralph Petty, Jr. of Midland, Texas, State Bar Card Number 15866500 is can­celed. Weldon Ralph Petty, Jr. must imme­di­ate­ly sur­ren­der his State Bar Card and Texas law license to the Clerk of the Supreme Court of Texas.”

Prosecutors who break eth­i­cal rules rarely suf­fer any con­se­quences for their mis­con­duct. Since 2013, 400 com­plaints against pros­e­cu­tors have been filed with the Texas state bar, and just 11 pros­e­cu­tors have been pub­licly dis­ci­plined. ​“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.”