An expert witness said Texas' execution drugs were expired. Officials used them anyway.
A Texas inmate was executed Tuesday evening with a drug a state district judge ruled couldn't be used because it was likely expired.
Robert Fratta, 65, of the Houston area, was executed Tuesday night with the drug pentobarbital, shortly after the state's top criminal appeals court overturned the ruling. Fratta is a former police officer who was convicted of hiring people to kill his wife. She was fatally shot at her home while the couple was going through a divorce.
Several hours before Fratta died, state district Judge Catherine Mauzy issued an injunction, directing the state not to use pentobarbital because the vials in the state's inventory were probably "illegal to possess or administer" because of issues concerning the expiration date.
The Texas Court of Criminal Appeals disagreed, and the Texas Supreme Court also dismissed a civil motion on the matter.
Pentobarbital, a drug that depresses the central nervous system, can cause the heart to stop if given in a high dosage. It is known to have a paralyzing effect on humans and is often used by veterinarians to anesthetize or euthanize animals.
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On Tuesday morning, Dr. Michaela Almgren, a clinical associate professor of pharmacy at the University of South Carolina, testified that the execution drugs in the state's inventory were "well beyond" their expiration dates, and the way the state extends those expiration dates is "completely unscientific."
Almgren reviewed state reports that documented the potency of its pentobarbital as well as other testing results and storage logs.
Lawyers for the Texas Department of Criminal Justice asserted the drugs are not expired.
Attorneys for those on death row "seem to claim that there is something inherently wrong with using compounded pentobarbital after the BUD (beyond-use date)," the department's attorneys wrote in a filing.
Texas began using pentobarbital in 2012 to execute people convicted of crimes and has killed 73 people with the drug that was sourced, tested and stored in the same manner as the drug planned for Fratta's execution, according to court filings from the state.
None of those executions have "produced drug-related complications," attorneys for the state wrote.
The department's use of pentobarbital "is not for therapeutic purposes, and the 5-gram dose used for executions is 1,000 times more than a standard therapeutic dose," the department's attorneys wrote. The beyond-use date "merely approximates how long a drug is guaranteed to be reliable; its passage does not change the drug’s reliability, especially when the drug is re-tested."
The state does regularly test the potency of the drugs, but Almgren said they do not adequately test whether the drugs have degraded.
"They basically test the drug, and if it still has what they assume is the right potency — which I'm not really sure that it does — they just say all the vials are still good. ... That's completely inappropriate," Almgren said.
Still, in court filings, the state's lawyers said the inmates' attorneys "have offered no evidence that the alleged expiration dates of the pentobarbital will have a demonstrated risk of severe pain."