Hours before Texas plans to execute Robert Fratta on Tuesday 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.
, 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.
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.
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.
“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. 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.
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.
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