Death Watch: A Reprieve From Death Row

The Texas Court of Criminal Appeals has overturned the murder conviction and death sentence of prisoner Clinton Young after finding that a Midland County prosecutor who worked on Young's case also worked for the judge presiding in Young's 2003 trial. Former judge Elsa Alcala, who served on the CCA from 2011 to 2018, described the unethical conduct: "It's like a football player also working as an advisor to the referee. It's cheating. There's no other way to characterize it."

In 2019, Midland County District Attorney Laura Nodolf discovered that prosecutor Weldon Ralph Petty, who had retired earlier that year, had been paid thousands of dollars over a 17-year period for writing rulings for district court judges while working as a prosecutor for the Midland County District Attorney's Office. Petty surrendered his law license in lieu of disciplinary action earlier this year after Nodolf's discovery became public, and invoked his Fifth Amendment right to avoid testifying at a subsequent hearing.

Young, now 38 years old, has been on death row for 18 years for the murders of Doyle Douglas and Samuel Petrey during a 2001 crime spree. He has long maintained that Petty and other prosecutors framed him and that the actual killer was Young's accomplice, David Page, a co-defendant and the key prosecution witness against Young.

Young came within days of being executed in 2017 while the CCA considered fresh evidence linking Page to the murders. As the court deliberated, Petty filed the motions necessary for Young's execution, while Nodolf met secretly with Page. Page told the D.A. that he'd lied when he implicated Young in the murders. Nodolf withheld that exculpatory information and the CCA stayed Young's execution on other grounds. Months later, she discovered the payments to Petty. She promptly recused her entire office from the case, complicating any retrial the state may wish to conduct.

An investigation by USA Today found at least 355 trials that were rendered structurally unfair by Petty's prosecution of defendants as he worked for their judges; 73 of those convicted are still in prison; 21 are serving sentences of 50 years or more.

Alcala thinks the CCA hasn't done enough to condemn the misconduct. She explained that although the court made the right ruling in Young's case, it didn't publish that ruling, which means the decision will not become precedent, so attorneys won't be able to cite it in future cases and judges won't be required to consider it when forming their decisions. The CCA "should have issued this as a published opinion," Alcala said. "It should have been something that they would scream from the rooftops to say, 'Number one, you don't do this. And number two, if we find out you did this, we're going to undo all of these convictions.' Instead, they just tried to sweep it under the rug."

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Stephen Barbee is scheduled for execution on October 12, but his attorney, Richard Ellis, has appeals pending. One of these, filed in federal district court, asks that Bar­bee's spiritual adviser be allowed to recite prayers and lay hands on him as he dies from lethal injection. This is the same request that halted the execution of John Henry Ramirez in September. The U.S. Supreme Court is hearing oral arguments on the issue on November 1.

Ellis is also concerned about a medical condition that makes it impossible for Bar­bee to fully extend his arms. During executions prisoners are forced to flatten their arms so that officials may administer an intravenous injection of pentobarbital. Accord­ing to Ellis, in order for Barbee's arms to be flattened, they would need to be broken. Prison officials have not explained how they intend to handle the potential problem, said Ellis, who has filed an appeal with the CCA, arguing that any attempt by the Texas Depart­ment of Criminal Justice to execute Bar­bee will violate the Eighth Amendment's protection against cruel and unusual punishment.

Barbee would be the fourth Texan the state has killed this year.