Lawsuit Challenges Use of Old Lethal Injection Drugs

By Jolie McCullough, The Texas Tribune

Hours before Texas plans to execute Robert Fratta on Tuesday evening for the death of his estranged wife, state courts are still weighing whether prison officials can kill someone with drugs long past their original expiration date.

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 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 date for September and November.

[Here's an updated look at how many execution drugs Texas has in stock]

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 last month to ban TDCJ from using the old drugs in his Tuesday execution.

The request set off a yet unresolved 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 view it as a civil matter regarding state laws regulating pharmaceutical drugs and controlled substances.

Texas’ highest criminal court has already prohibited Travis County judges from halting the executions, but the prisoners’ lawyers argue they are not seeking 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.”

State District Judge Catherine Mauzy of Austin is set to hear arguments over the drugs Tuesday morning. If she rules the prison agency can’t use expired drugs in the upcoming executions, it’s unclear whether a state appeal would go to the Court of Criminal Appeals or the Texas Supreme Court, sister courts which handle criminal and civil matters separately. It’s also unknown whose jurisdiction TDCJ would respect, leaving Fratta’s fate up in the air.

“This has not happened before, so we’re unsure how this is going to play out,” Nolan said on the phone Monday.

A TDCJ spokesperson did not respond to questions over the jurisdictional concerns or execution drugs Monday. In legal arguments, Texas has 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.”

Fratta, now 65, is convicted of hiring men to kill his wife, Farah, in 1994 during a contentious custody battle over their three children. Multiple witnesses said Fratta had made comments about killing his wife or hiring others to do so throughout the divorce and custody fights.

Fratta has maintained his innocence over nearly 30 years, arguing almost all of the evidence against him relied on a single witness who testified in exchange for immunity from prosecution. He has pending appeals in the U.S. Supreme Court to further review his conviction.

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 also on death row.

Months after the murder, when Guidry was arrested for another offense, his neighbor Mary Gipp told police that he, Fratta and Prystash, her boyfriend, had also been involved in Farah Fratta’s death. Gipp said 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 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.

If courts rule against Fratta in appeals over his conviction and the lethal drugs Tuesday, he will be executed after 6 p.m. in a Huntsville prison.

The prisoners’ attorneys argue 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 alleges the prison system tests only the sterility of its pentobarbital, not the stability. It also faults 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/.