Texas’s Use of Expired Lethal Injection Drugs Challenged

Gavel, handcuffs, and book describing criminal law in Texas

According to the Texas Tribune, Robert Fratta was convicted of murder-for-hire regarding the death of his estranged wife in 1994. Fratta was ultimately scheduled to be executed on the evening of January 10, 2023.

Just hours before the execution is scheduled to take place, however, Texas courts are determining whether prison officials can proceed with lethal injection drugs that are far past their expiration dates.

While this is an extraordinary case with an extraordinary outcome, every Texas criminal charge should be taken very seriously, which makes having the professional legal guidance of an experienced Killeen criminal defense attorney in your corner well advised.

Extending the Use-By Dates

In Fratta’s case, lawyers are officially challenging the state’s routine practice of looking past the expiration dates on the lethal drugs it uses for executions. This suspect practice began when many pharmacies began refusing to provide pentobarbital (a lethal drug used for executions) to the state.

As a result, the Texas Department of Criminal Justice (TDCJ) has been using expired lethal drugs for years. The department retests the potency level of its expired stock of the drug before implementing lethal doses.

Defense attorneys have called this practice into question, reporting that the testing for potency is not done correctly and that, as a result, the expired drugs have led to painful deaths that violate the nation’s constitutional prohibition of cruel and unusual punishment.

As fewer and fewer pharmacies are willing to provide the state with the lethal drug, however, TDCJ has continued the practice.

Defense Attorneys Speak Out

TDCJ is reported to have seven lethal doses of the drug in question that were initially slated for expiration between two and three years ago but have since been relabeled with expiration dates set for September and November of this year. The defense attorneys of two death row prisoners scheduled to be executed in February led the charge against the practice, and Fratta’s attorney followed suit.

Civil vs. Criminal Courts

The request made by the defense attorneys in question set off a jurisdictional conflict between the state’s civil and criminal courts that remains in question.

Texas’s attorney general classified the motion, identified as an attempt to halt an execution, as a criminal matter. Under such a classification, the motion is not eligible for review in Austin because the murders took place in different state jurisdictions.

The involved defense attorneys, however, have taken a different stance. They claim that the motion is a civil matter predicated on state laws regulating pharmaceutical drugs and controlled substances.

While the highest criminal court in Texas has made it clear that judges in Travis County are prohibited from halting the scheduled executions, the defense attorneys who brought the motion argue that their goal is not to stop the executions in question. Instead, they hope to ensure that expired drugs are not used to carry them out.

“It Is Alarming”

One of the attorneys behind the motion stated, “It is alarming that Texas intends to carry out executions with compounded pentobarbital that expired years ago. 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.”

The involved defense attorneys maintain that the state’s practice of extending expiration dates on lethal drugs flies in the face of federal standards, which place a 45-day cap on pentobarbital’s shelf life. Records indicate, however, that the last time TDCJ purchased the lethal drug was in March of 2021.

There are several other factors worth considering in this matter:

  • The complaint filed alleges that, while TDCJ does test the pentobarbital for its sterility, it does not test for stability.

  • The complaint further alleges that every time TDCJ decides to extend expiration dates on the lethal drug, it tests only one vial per batch.

The attorneys maintain that the pentobarbital used by TDCJ is a compounded drug mixed in an anonymous pharmacy – as far as the public is concerned – and that, as a result, it can vary from vial to vial.

A Hearing Set for Tuesday Morning

A hearing was set for the morning of Fratta’s scheduled execution – January 10, 2023. If the state district judge set to hear the arguments rules that TDCJ cannot use the expired drugs in the upcoming execution, it remains uncertain whether an appeal at the state level would proceed to the Court of Criminal Appeals, which handles criminal matters or to the Texas Supreme Court, which handles civil matters.

The fact that it is unknown which jurisdiction TDCJ will acknowledge makes Fratta’s fate that much more precarious. Because this is an isolated event that the state has not encountered before, there is a good deal of uncertainty regarding how it will transpire.

TDCJ – For Its Part

TDCJ did not respond to questions put to a spokesperson regarding the jurisdictional debate or the expired lethal drugs. In its legal arguments, however, the state has taken the position that because the drugs are not being used to treat patients, restrictions – including those related to expiration dates – do not apply.

In a filing last week, the Texas AG’s Office stated, “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 state went on to point out that similar legal challenges related to expired lethal drugs have not had a legal impact because they have amounted to speculative concerns that fail to prove a demonstrable risk of executed criminals experiencing severe pain.

The Fratta Case

Fratta, now aged 65, is a former Texas police officer convicted of hiring a man to have his wife killed by another man. The murder took place during a highly contentious custody battle involving three shared children. Several witnesses reported that Fratta commented throughout the divorce battle about either killing his wife himself or hiring others to do it for him.

For nearly three decades, Fratta has staunchly maintained his innocence in the matter, sharing his belief that nearly all the evidence used to convict him was based on the testimony of just one witness who testified in exchange for immunity from prosecution. There are pending appeals of his case in the U.S. Supreme Court.

Here are the essential elements of the case against Fratta:

  • He was convicted of hiring a man as a go-between to hire another man – who was only a teenager at the time – to fatally shoot his estranged wife in her garage before the divorce was finalized.

  • When the man acting as a go-between was arrested months later in relation to another criminal offense, his neighbor told the police that he and Fratta had hired her boyfriend to kill Fratta’s wife for a Jeep and $1,000.

  • The shooter and the man who hired him ultimately confessed to the murder and implicated Fratta in the process.

  • Because the statements made by the other men were used at Fratta’s trial, but they did not testify, Fratta’s first conviction did not hold – based on the denial of his legal right to confront witnesses.

  • Ultimately, Fratta was tried again, convicted, and sentenced to death in 2009, largely based on the testimony of the woman who originally came forward with information about her boyfriend being hired by Fratta and the go-between.

The other two men involved remain on death row in Texas.

Texas’s Dubious Standing

Texas has an unfortunate relationship with the death penalty that plays out in all the following ways (according to the Death Penalty Information Center):

  • Texas became the first state in the nation to perform a lethal injection in 1982 after moving away from the electric chair in 1977.

  • Since 1976, Texas has executed more people than any other state.

  • Texas has 254 counties, but most have never implemented a death sentence. In other words, certain counties throughout the state are overrepresented in this category.

  • Since 1982, Harris County has issued more than 280 death sentences and performed more than 120 executions.

  • While the governors of many other states have issued moratoriums on executions, the Texas Constitution does not allow this practice, which means the governor of Texas does not have the authority to impose a moratorium.

  • Texas’s law of parties means that if a defendant was present during the commission of a capital crime, they bear criminal responsibility and can, therefore, be sentenced to death.

  • In 2005, the Supreme Court deemed it unconstitutional to execute minors, but prior to that time, the State of Texas had already executed a total of 13 juveniles and had 29 more awaiting execution dates.

  • The Supreme Court prohibits death sentences for those with significant mental disabilities, but Texas has yet to enact the statutory provisions necessary to implement this prohibition at the state level.

Cases that Stand Out

While Texas’s reputation regarding the death penalty is tarnished at best, several cases stand out for all the wrong reasons.

Anthony Graves

Anthony Graves spent 16 years in prison for his role as the alleged accomplice of Robert Carter in a capital murder case in Texas. In 2006, however, just weeks before Carter was executed, he admitted that he had fabricated Graves' role in the crime. Carter reiterated this point upon his execution, and while Graves’ conviction was ultimately overturned, it was on the grounds of prosecutorial misconduct.

Randall Dale Adams

Although another man had bragged about having committed the murder of a Texas police officer, Randall Dale Adams was convicted of the crime – based on testimony provided by witnesses who disappeared before being cross-examined by Adams’ defense team.

Adams’ conviction was ultimately overturned based on evidence that indicated his innocence. His story is the inspiration behind the popular film The Thin Blue Line.

Karla Faye Tucker

Karla Faye Tucker was convicted of capital murder in Texas in 1984 and was put to death just four years later in 1998. The average time inmates spend on death row is ten years, and more than half the inmates currently sentenced to death in states nationwide have already put in more than 18 years on death row. Tucker was the first woman executed in the United States since 1984 and was the first woman executed in Texas since 1863.

Cameron Todd Willingham

Convicted of killing his three young daughters in a Texas arson case in 1991, Cameron Todd Williamson was executed based on evidentiary theories related to fire that are now considered junk science. Many experts in the field believe that the fire in question may not have been arson to begin with.

Carlos DeLuna

Carlos DeLuna was convicted in 1983 and executed in 1989 for the stabbing death of a Texas convenience store clerk. However, an investigation conducted by the Chicago Tribune that was released in 2006 shared groundbreaking evidence that Texas may have gotten it wrong and executed an innocent man.

The reporting questioned DeLuna’s guilt and pointed toward another man who had confessed to the crime repeatedly and had been convicted of similar crimes.

An Experienced Killeen Criminal Defense Attorney Is on Your Side

If a criminal charge of any kind has been levied against you, bringing your strongest defense in pursuit of your case’s best possible resolution is critical.

Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is a practiced criminal defense attorney focused on guiding complicated cases like yours toward advantageous outcomes. He is here for you, too.

For more information about what we can do to help you, please do not hesitate to contact us online or call us at (254) 781-4222 today.