Lawsuit challenges use of old lethal injection drugs as Texas prepares to execute Robert Fratta

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Hours before Texas plans to execute Robert Fratta on Tuesday night for the death of his ex-wife, state courts are still considering whether prison officials can kill a man with expired drugs.

For many years the Texas Department of Criminal Justice extended the expiration date from their lethal doses of pentobarbital, the only drug used in Texas executions, after retesting their potency levels. defense lawyers slammed the practicearguing that testing is wrong and that old drugs have caused agonizing deaths that violate the Constitution’s prohibition on cruel and unusual punishment.

However, the TDCJ continues its work without court intervention as fewer pharmacies are willing to supply drugs for executions.

The seven doses of TDCJ pentobarbital reported recently were originally supposed to have expired either nearly two or more than three years ago, according to prisoner lawyers. The TDCJ has since changed the drug’s expiration date to September and November.

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

Following two other death row inmates due to die next month, Fratta, a convict in Harris County, petitioned the Travis County courts last month to stop TDCJ from using old drugs during his execution on Tuesday.

This request caused an as yet unresolved jurisdictional dilemma between the civil and criminal courts. The Texas Attorney General considered the motion to be a criminal motion to stop the execution, which would have disqualified him from being tried in Austin, where there were no murders. But the inmates are treating it as a civil case, dealing with state laws governing pharmaceuticals and controlled substances.

The Texas Superior Criminal Court has already barred Travis County judges from stopping executions, but prisoner lawyers say they are not seeking to stop them, only to enforce them with unexpired drugs.

“It is alarming that Texas intends to carry out executions with pentobarbital, which expired several years ago,” Sean Nolan, a lawyer for two men sentenced to death in February, said Monday. “We must hold a hearing to make sure Texas is not breaking the law and putting prisoners at serious risk of pain and suffering during the execution process.”

State District Judge Katherine Mauzy of Austin is scheduled to hear drug arguments Tuesday morning. If she decides the prison agency can’t use expired drugs in upcoming executions, it’s unclear whether the state’s appeal will go to the Court of Criminal Appeals or the Texas Supreme Court, sister courts that hear criminal and civil cases separately. It is also unknown whose jurisdiction the TDCJ will respect, leaving Fratta’s fate in limbo.

“This hasn’t happened before, so we’re not sure how it will evolve,” Nolan said by phone on Monday.

On Monday, a spokesman for the TDCJ did not respond to questions about jurisdictional issues or execution drugs. In legal arguments, Texas argued that restrictions on pharmaceuticals do not apply to executions because they are not used to treat anyone.

“Executioners carrying out the current death sentence are not medical practitioners administering medication to a patient because they do not provide therapeutic treatment for injuries, illnesses, or illnesses,” the Texas Attorney General’s Office said in a statement last week.

The state added that similar lawsuits over old execution drugs have failed because prisoners “failed to demonstrate how these speculative concerns demonstrate a proven risk of severe pain.”

Fratta, now 65, is convicted of hiring men to kill his wife Farah in 1994 during custody disputes over their three children. Numerous witnesses have stated that Fratta made comments about killing his wife or hiring others to do so during divorce and custody disputes.

Fratta maintained his innocence for almost 30 years, claiming that nearly all of the evidence against him was based on the testimony of a single witness in exchange for immunity from prosecution. He is awaiting appeals to the US Supreme Court for further review of his sentence.

In court, Harris County Attorney’s Office alleged that Fratta hired Joseph Pristash and Howard Guidry to shoot Farah Fratta in the head in her garage weeks before the couple were due to file for divorce. Two other men are also on death row.

A few months after the murder, when Guidry was arrested for another crime, his neighbor Mary Gipp told the police that he, Fratta, and Pristash, her boyfriend, were also 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.

Pristash and Guidry later confessed to their involvement in the murder and to Fratta’s involvement. Their statements at the trial, however, resulted in Fratta’s first sentence being dropped because the prisoners did not testify, thus depriving Fratta of the right to testify against witnesses, by court order. He was again tried and sentenced to death largely based on Gipp’s testimony in 2009.

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

Prisoners’ lawyers argue that extending the expiration date in Texas is against federal standards that limit pentobarbital’s expiration date to a maximum of 45 days. TDCJ records show that the agency’s last purchase of the drug was in March 2021.

The complaint also alleges that the prison system only tests pentobarbital for sterility, not stability. He also accuses the TDCJ of only testing one vial per lot each time it wants to push back expiration dates when mixed drugs mixed in a drugstore kept secret from the public can vary from vial to vial.

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