Prickett: Prosecutor To Judge, “Hold My Beer”

Ed. Note: Greg Prickett is a former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

In the middle of West Texas is Midland County. It’s due south of Amarillo and due east of El Paso. Just to the west is Odessa. This is the heart of both West Texas and “good ol’ boy” country. It is also where a prosecutor worked as a law clerk for a state district judge at the same time that he was actually prosecuting the same case.

The state obtained a conviction against Clinton Lee Young for the murders of two men, Doyle Douglas, 41 and Samuel Petrey, 52. In 2003, District Judge John G. Hyde sentence Young to die by lethal injection. During that time, Weldon “Ralph” Petty was both working on the prosecution team that was trying the case and as a law clerk for Judge Hyde, evaluating and researching the pleadings in the case.

Young, for his part, asserts that he didn’t shoot anyone, and that one of his co-defendants did it. Thus far, that position has been rejected by the courts, and the co-defendants were sentenced to 30 years and 15 years for kidnapping. None of the appeals addressed the conflict of interest in having the prosecutor working for the judge on a death-penalty case. So recently, as the defense team was filing a last minute appeal based on possibly false testimony, the prosecutor assigned to defend the conviction called Young’s lawyers.

The ADA in the case, Eric Kalenak, told Young’s counsel that Petty had worked as a law clerk for the judge in the case. The Midland County DA also recused themselves from the case. County records supported this notice, but we’ll get into that a little later. This is just flat out prosecutorial misconduct on a number of different levels. First, one cannot work for both the executive branch (DA’s Office) and the judicial branch (law clerk) at the same time.

Next, it compromises the position of the Court, and is evidence of bias in favor of the prosecution. Think about this for a second. Once Young was convicted, and his attorneys were filing for post-conviction relief, Petty was preparing and submitting briefs on the State’s response and then put on his judicial branch hat and recommended to the judge how the court should rule. I did the latter when I clerked for a criminal district judge, and normally the clerk’s recommendations are accepted, with minor polishing by the judge, as the position of the court. The difference is that I wasn’t also one of the parties in front of the court.

Third, it consists of ex parte communication with the court. That’s forbidden except under very limited circumstances. It is the reason that most communications with the court go through a court coordinator or administrator, and why the lawyer sending the message normally copies the opposing party.

This is a big deal, big enough for Petty to potentially be disbarred, and had Judge Hyde not passed away in 2012, for him to be removed and also disbarred. It is clearly enough to require a new trial for Young.

Now comes the really, really fun part. The Midland County Treasurer records indicate that this wasn’t a one-off episode. Petty reportedly performed both jobs for at least 17 years. It is not known how many defendants that this could affect, but Young is likely the very tip of the iceberg. We don’t have a clue though, because the Midland County DA isn’t saying, and the court has thus far refused to allow the defense team to depose Petty or to conduct any discovery.

Is Young guilty? Based on what was presented, probably. Can we know for sure when the court and the prosecution were working together? No, absolutely not.

This post was originally published at Greg Prickett’s blog, Lex Forenda.

9 thoughts on “Prickett: Prosecutor To Judge, “Hold My Beer”

  1. Kathryn M. Kase

    I look forward to the legal gymnastics the Texas Court of Criminal Appeals will engage in to uphold Mr. Young’s conviction and death sentence. Long before Mr. Young’s case was presented to the CCA, Charles Dean Hood got a stay of execution after proving that the judge and prosecutor in his death penalty trial had had a secret, long-term affair (and guess who got screwed).

    Later, however, the CCA refused to overturn Mr. Hood’s conviction and death sentence, ruling that he should have raised the issue sooner than he did — which always made me wonder if the CCA understood what a secret extramarital affair was. We on Mr. Hood’s legal team were able to prove the affair only because, two days before his scheduled execution, the retired judge and former prosecutor admitted to their extramarital activities in sworn depositions.

    Mr. Hood is off death row, but only because of Penry (jury-charge) error in the sentencing phase of his trial. Sic transit iusticia in the State of Texas.

  2. Bob

    The post seems to be conflating two possible conflicts. It’s obvious that if the guy was working for the court and the prosecution on the same case at the same time, that would be a conflict.

    But is there a conflict inherent in working for the prosecutor and the court at the same time, as per the “first” proposition? That’s not so obvious to me. The usual rule (I’m sure it varies from state to state) is that you can’t hold an OFFICE in two branches of government at the same time. But a janitor who cleans the capitol can still clean the courthouse. And a lawyer can represent two branches at the same time unless he has a specific conflict.

    Most assistant prosecutors aren’t holding an office. Likewise with law clerks; and they aren’t even technically practicing law in most places. And many prosecutors can and do have side practices. Even “full time” assistant prosecutors are often technically contract employees who are representing the state on a case-by-case basis and are free to have a side practice too. Hell, even some judges can have side practices. The usual rules about conflicts apply; there’s nothing categorical there.

    Then again, I’ve never met a part-time law clerk with a side practice, so I could just be wrong.

    1. Grant

      When there is no active conflict, there is an increased potential for conflict.

      And as an employee of the judicial branch, you are not supposed to have any of that.

      Example application: In NJ, to be an intern for a judge, I had to forego all outside employment. And that was just to be an unpaid intern.

      1. Bob

        When I clerked for a state appellate court, the rule was that you COULD practice outside of the court, or otherwise moonlight at some other job, but you had to have express permission from the chief justice.

        As far as I can remember, no one ever asked for it.

  3. Lee Keller King

    As a licensed Texas attorney.(who granted, does not practice criminal defense law), I see a clear conflict of interest and ample grounds for reversal and for disbarment of the attorney.

    Rule 1.11 of the Texas Disciplinary Rules Of Professional Conduct appears to me to cover this situation, If not by the letter of the law, then by the spirit of the law:

    “(a) A lawyer shall not represent anyone in connection with a matter in which the lawyer has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official or law clerk to an adjudicatory official, unless all parties to the proceeding consent after disclosure.”

    Unfortunately, I share Ms Kases’ expectation that the Texas Court Of Criminal Appeals will find some way to affirm the conviction, even if it means locking the courthouse doors to prevent a last-minute filing. ?

    I love my home state of Texas, there are sometimes. . .

    1. Bob

      That rule says you can’t represent someone in a matter you previously worked on as a clerk, not that you can’t clerk in a matter you previously worked on as an attorney (which is what is alleged here, I believe).

      1. SHG Post author

        As fascinating as this tête-à-tête is, I trust you both realize that it’s about your experiences and not the post. It is not nearly as illuminating as you might think, and may well be grossly misleading since your anecdotal understand may be less than accurate.

        1. Bob

          Figured that went without saying. Besides, it’s not advice for normal folks, and any lawyer who trusts (heavy qualified) pseudoanonymous anecdotes online deserves what he gets.

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