Prosecutor to Judge: Hold my Beer

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 of it is Odessa. This is the heart of both West Texas and the “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, and in 2003, District Judge John G. Hyde sentence Young to die by lethal injection. During that time, Weldon “Ralph” Petty, Jr. was both working on the prosecution team that was trying the case and as a legal 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 a prosecutor helping a 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 towards 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 same thing 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 effect, 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 Perry 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 was working together? No, absolutely not.

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