By Jolie McCullough, The Texas Tribune
“Texas executes Robert Fratta after high courts reject challenges to expired lethal injection drugs” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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Texas executed Robert Fratta on Tuesday night for the 1994 death of his estranged wife, Farah. The prisoner’s death was preceded by a dramatic day of back-and-forth court decisions on whether the state could continue using lethal drugs long past their original expiration dates.
For years, the Texas Department of Criminal Justice has extended the use-by dates of its lethal doses of pentobarbital, the only drug used in Texas executions, after retesting their potency levels. Defense attorneys have slammed the practice, claiming the testing is done incorrectly and that old drugs have caused painful deaths that violate the U.S. Constitution’s prohibition of cruel and unusual punishment.
Still, TDCJ has continued the routine without court intervention as fewer pharmacies have been willing to supply drugs for executions.
The seven doses of pentobarbital TDCJ most recently reported to have in stock were originally set to expire either nearly two or more than three years ago, according to prisoner attorneys. TDCJ has since relabeled the drugs’ expiration dates for September and November.
Last month, following the lead of two other death row prisoners set to die next month, Fratta, who was convicted in Harris County, asked Travis County courts to ban TDCJ from using the old drugs in his Tuesday execution.
After an emergency hearing Tuesday morning, state District Judge Catherine Mauzy of Austin issued a temporary injunction in the afternoon saying that the prison’s stock of pentobarbital “is probably illegal to possess or administer because it is more likely than not expired.” She noted that TDCJ offered no evidence to contradict prisoners’ claims that the expired drugs could cause “torture, ill treatment, or unnecessary pain” in violation of state law.
Shortly after the originally scheduled execution time of 6 p.m., the Texas Court of Criminal Appeals overruled Mauzy, claiming she did not have jurisdiction in the case. About 30 minutes later, the Texas Supreme Court agreed, denying Fratta’s final appeal and allowing his execution to proceed.
The 65-year-old was pronounced dead at 7:49 p.m., 24 minutes after the old, but still deadly drugs began coursing through his veins. Farah Fratta’s brother and son attended the execution, according to a prison report. The prisoner did not give a final statement.
Fratta was convicted of hiring men to kill his wife in 1994 during a contentious custody battle over their three children. Multiple witnesses said Fratta had made comments about killing his Farah Fratta or hiring others to do so throughout the divorce and custody fights.
The prisoner maintained his innocence throughout his nearly 30 years on death row, arguing that almost all of the evidence against him relied on a single witness who testified in exchange for immunity from prosecution.
In court, Harris County prosecutors argued Fratta hired Joseph Prystash and Howard Guidry, who shot Farah Fratta in the head in her garage weeks before the couple’s divorce was to be finalized. The two other men are still on death row.
Months after the murder, when Guidry was arrested for another offense, his neighbor Mary Gipp told police that he, Robert Fratta and Prystash, her boyfriend, had also been involved in Farah Fratta’s death. Gipp said Robert Fratta hired her boyfriend and neighbor to kill Farah Fratta in exchange for $1,000 and a Jeep.
Prystash and Guidry both later confessed to their role in the murder and implicated Robert Fratta. Their statements at trial, however, led to Fratta’s first conviction being tossed since the prisoners did not testify themselves, preventing Fratta from his right to confront witnesses, courts ruled. He was again tried and sentenced to death largely based on Gipp’s testimony in 2009.
In Fratta’s final appeals, the prisoners’ request to prohibit the use of previously expired execution drugs set off a jurisdictional dilemma between civil and criminal courts. Texas’ attorney general deemed the motion a criminal one seeking to stop an execution, which would make it ineligible for review in Austin, where the murders did not occur. But the prisoners viewed it as a civil matter regarding state laws regulating pharmaceutical drugs and controlled substances.
Texas’ highest criminal court prohibited Travis County judges from halting the executions last week, but the prisoners’ lawyers argued they were seeking not to stop them, only to ensure they are carried out with unexpired drugs.
“It is alarming that Texas intends to carry out executions with compounded pentobarbital that expired years ago,” Shawn Nolan, an attorney for two men set for execution in February, said in a statement Monday. “We must have a hearing to ensure that Texas does not violate the law and place prisoners at serious risk of pain and suffering in the execution process.”
In her Tuesday injunction, Mauzy said she was not issuing a stay of execution for any individual prisoner but was instead halting prison officials from “committing certain acts while conducting the executions.” She said since the agency is using a controlled substance created in a pharmacy for its executions, it must abide by state laws on drugs and pharmaceuticals.
Mauzy emphasized in a footnote that in 2019, TDCJ argued in another death row case that “challenges to an execution protocol are a civil, not a criminal law matter.”
TDCJ appealed the ruling to the Court of Criminal Appeals, the state’s highest criminal court, which tossed Mauzy’s injunction allowing Fratta’s execution to proceed. Fratta’s attorneys asked the Texas Supreme Court, which handles civil matters, to intervene, but the judges declined to do so.
In legal arguments, Texas argued restrictions on pharmaceutical drugs don’t apply to executions because they’re not being used to treat someone.
“Executioners carrying out a valid death warrant are not practitioners administering drugs to a patient because they are not providing therapeutic treatment of injury, illness, or disease,” the Texas attorney general’s office said in a filing last week.
The state added that similar legal challenges to old execution drugs have failed because prisoners “failed to demonstrate how these speculative concerns show a demonstrated risk of severe pain.”
The prisoners’ attorneys argued Texas’ extension of expiration dates goes against federal standards, which cap pentobarbital’s shelf life to at most 45 days. TDCJ records show the agency’s most recent purchase of the drug was in March 2021.
The complaint also alleged the prison system tests only the sterility of its pentobarbital, not the stability. And it faulted TDCJ for testing only one vial per batch each time it wants to push back expiration dates, when the compounded drugs, mixed in a pharmacy kept secret from the public, can vary from vial to vial.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/01/10/texas-robert-fratta-execution-expired-drugs/.
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