On Monday January 25, 2021, the long-awaited evidentiary hearing in the case of Clinton Young took place. Both the defense and the State have agreed to only litigate the fifth application for a writ of habeas corpus during this hearing, which contains claims in relation to Assistant District Attorney for Midland County Ralph Petty.
Parties that are present:
This hearing is about the issue that involves District Judge Hyde paying Mr. Ralph Petty as a ‘de facto law clerk’ to perform work on Clinton’s trial and post-conviction proceedings while Petty was also appearing as a prosecutor for the State throughout Clinton’s trial and post-conviction proceedings (starting in 2001 and onward).
As a consequence of the fifth application for a writ of habeas corpus, the CCA authorized three claims:
Ralph Petty is not going to testify. He sent out a letter in December of 2020, letting the parties know that because of health issues, he is not going to be able to testify in person. And that if he would testify, he would invoke the 5th (meaning; 5th amendment of the US Constitution: an individual cannot be compelled to provide incriminating evidence against himself, the so-called “right to remain silent”).
The defense calls the first witness.
WITNESS RUSSEL MALM
Russel Malm has been working as a county attorney for Midland County since 1997. In that capacity he has been advising county officials on their legal duties and has been writing opinions on different legal questions.
In 2002, Mr. Malm was asked to write an opinion letter about whether Petty may receive pay for work he renders to District Judges on post-conviction writs in addition to his salary as an Assistant District Attorney. The question was whether paying Petty would violate the Constitution.
Malm spoke to Judge Hyde about this issue, and he believes he has also spoken to Ralph Petty about it. Malm asked Hyde whether this work was part of the regular duties as a District Attorney. Malm wanted to find out whether this work for Judge Hyde was related to Petty’s work at the DA’s Office. If it would be too close to Petty’s work at the DA’s Office, then it would violate the constitution and the construction would not be allowed. In order for Petty to get paid by Judge Hyde, his work for Judge Hyde needed to have been completely separate from his work at the DA’s Office.
However, in Petty’s contract with the DA’s Office, it was mentioned that Petty would “continue the performance of legal services to the District Judges of Midland County.” So Ralph Petty was most likely already working for District Judges when Malm wrote this legal opinion in 2002.
It was Malm’s understanding that Petty was performing his role as an advisor for the judges, not in his capacity as a prosecutor. Petty did inform Malm at some point that he would be advising the judges in his own time, outside the DA’s Office.
Malm’s conclusion was that, based on the information that was given to him, Petty’s work would be completely separate from his job as an Assistant District Attorney and therefore Petty could get paid by the District Judges for the work he would be doing for them.
Defense calls Laura Nodolf.
WITNESS LAURA NODOLF
Ms. Nodolf has been a District Attorney for Midland County for over 4 years. Nodolf started prosecuting Clinton after her predecessor went out of office.
During a budget process in August of 2019, Nodolf discovered Petty’s conduct. She read in the books that additional funds were given to Ralph Petty. Before seeing these books, Nodolf had no idea that Petty was getting paid by the courts for work performed in this case. Nodolf was never informed of that arrangement. By the time she made the discovery, Petty was no longer an Assistant District Attorney in Midland. He stopped that work on June of 2019. Petty stopped working because he retired, it was Petty’s decision to “move on”.
It was common knowledge in Midland County that judges would come to Ralph Petty for a variety of issues. Judges would speak with Petty regarding a variety of legal topics. Petty was the “to-go-to law library.” Everyone would go to Petty. However, no one ever said anything about Petty getting paid to give legal advice. It was just common knowledge that if you had a legal question, you would go to Ralph Petty. Petty knew a lot about the law and he would give an answer based on the law.
A lot of what Petty did was reviewing jury charges. This did not raise any concerns with Nodolf, because there were never any ex parte communications that she was aware of (communications between two parties outside of the presence of another party).
Nodolf was furious when she discovered Petty’s dual role in 2019, because of the amount of work and dedication that so many people put towards this case. Nodolf immediately recognized Petty’s billing for what it was, and knew that the right thing to do would be to recuse herself.
“I was furious. I felt like we had not done our duty to the tax payers. I was furious that he [Petty] had engaged in such conduct.”
That day, Nodolf called Assistant District Attorney Eric Kalenak and we had a conversation about the shock and surprise of the situation, but also talked about which steps we needed to take. We did not exactly know how far back this all went.
Nodolf investigated more than 300 cases to see whether this had happened in those other cases too.
In October 2017, Ralph Petty had been replaced as the primary lawyer handling Clinton’s case. This was around the time the 4th petition for a writ was filed. Decisions to take Petty off the case had been made prior to that though because Petty missed a deadline. He missed the deadline to file a response to the fourth writ with the CCA. On October 17, 2017, the response was finally filed.
Nodolf did interview David Page on October 4, 2017. Petty was aware of that interview because Nodolf told him she interviewed Page. Nodolf understood that that interview needed to be disclosed to the defense. That did not happen immediately though. Nodolf expected Petty to disclose that interview to Clinton’s legal team. Around October 17, 2017, Nodolf discovered that Petty never disclosed the interview to Clinton’s team. Nodolf only disclosed the interview on October 25, after Clinton had already received a stay of execution from the CCA.
When asked why Nodolf did not disclose the interview with Page on October 27, the day when she discovered that it wasn’t yet disclosed to Clinton’s legal team, she says that by that time, she had already anticipated a stay of execution for Clinton anyway. She says she knew that Petty’s failure to act on the new writ would have consequences.
Nodolf recently asked Petty if it was true that he was getting paid by the judges. Petty said that he was and that he believed that he did it after hours and that everything was okay.
The defense calls Paul Williams.
WITNESS PAUL WILLIAMS
Mr. Williams was Clinton’s trial attorney in 2002 and 2003. Williams knew Ralph Petty made appearances in Clinton’s case and did work on the case. Williams did not know that Petty did work on post-conviction writs for the judges.
Williams did become aware of Petty doing post-conviction work for judges about two to three years ago. It was “court house gossip.”
Williams said that everyone knew that when a writ of habeas corpus came in, and the judge wanted to write an opinion, that the judge would give an overview of his decision to Petty and Petty would write the opinion for the judge. The judge would then sign off on that opinion. Williams is not sure when that started and did not know which cases he worked on. It was, however, Williams’ understanding that Petty did this for all the judges.
The general reputation of Ralph Petty in Midland was that he had an outstanding reputation. Petty is known for being a scholar of the law. A person that other people would go to when they have a question about the law or legal procedure.
“In hindsight, it looks horrible, it looks awful. It is potentially prejudicial, absolutely.”
Whether Clinton was really prejudiced by Petty advising Hyde is difficult to say. At least it looks awful, according to Williams. Williams does not know if he would have filed a motion for recusal if he had known about Petty’s conduct at the time.
Although it was common knowledge that Petty was advising judges in open court, it was not common knowledge that Petty was also being paid for that or that he was receiving assignments from judges either, or that he was working on cases from both sides.
Defense calls Eric Kalenak.
WITNESS ERIC KALENAK
Eric Kalenak as an Assistant District Attorney at the Midland County DA’s Office. He has worked with Petty at the time. Petty was primarily the appellate lawyer, the legal advisor to the team that was prosecuting Clinton’s case.
Kalenak was not aware that Petty worked on post-conviction applications for the judges in Clinton’s case. When Kalenak heard that Petty did that in Clinton’s case as well, he was mad about it.
“I felt like it was wrong of him [Petty] to do that.”
Petty was acting as a ‘de facto law clerk’, which means that Petty was working for the judges on the writs that were filed and at the same time he was working for the DA’s Office and did the same work for them too.
“You can’t serve two masters in that way. You are either an impartial person consulting the judges, or you work for the DA’s Office. But you don’t do both; that’s professional responsibility one on one.”
Clinton’s case is not the only case in which Petty was working as a de facto law clerk for the judges. They discovered more cases and send out letters to all those defendants letting them know what had happened. According to Kalenak, these people needed to be aware of the fact that there was an ethical situation involved. “It was something I felt I needed to do.”
At the time, Laura Nodolf lost confidence in Petty’s ability to carry forward with Clinton’s case. That is when Kalenak stepped in. After the CCA issued a stay of execution for Clinton, Nodolf lost confidence in Petty. Nodolf was disappointed in the answer Petty filed as a response to Clinton’s fourth writ application.
Kalenak was aware of the interview with David Page. Kalenak was also aware of the fact that no one had disclosed it to the defense team yet. Kalenak was aware that the interview was material to the facts of the case though. Kalenak does not really know why it took 20 days to disclose the interview to Clinton’s legal team, but says that it was a diffusion of responsibility. No one was in charge of the case at that point. Petty was the primary lawyer on the case at that time, it would have been Petty’s responsibility to disclose that tape.
It was only after Kalenak listened to the taped interview himself, that he sent a copy over to Clinton’s legal team.
The State is not calling any witnesses.
WHAT HAPPENS NOW?
The court reporter gets 20 business days to get the transcripts of this hearing ready. Then both parties will get the opportunity to file findings of fact and conclusions of law. It is possible that both parties will file on jointly, since DA Furlow already stipulated to a lot of the facts. The judge highly encourages that.
The briefs of both parties are due 20 days after the transcript is ready. After the briefs are ready, then the judge will set a date and time for a hearing.