Texas Lawyers Violated Legal Ethics Over Expired Execution Drugs

Earlier this month human rights advocates, legal experts, and other conscientious citizens had their eyes squarely fixed on Texas as it was primed to execute Robert Fratta on January 15. In the process of exterminating Fratta, state lawyers discarded their ethical obligations in a rush to kill.

Fratta had joined a lawsuit filed by Wesley Ruiz (whose execution is scheduled for February 1) and John Balentine (whose execution is scheduled for February 8); as the Associated Press reported at the time, the men argued in Texas trial and appellate courts that the state “plans to use expired and unsafe drugs to carry out executions early this year in violation of state law.” In their court filings the condemned alleged expired pentobarbital—Texas’s drug of choice for killing—put them at “serious risk of pain and suffering in the execution process.”

As Texas Tribune reporter Jolie McCullough reported, Fratta was ultimately executed, but not before “a dramatic day of back-and-forth court decisions on whether the state could continue using lethal drugs long past their original expiration dates.”

The human, moral, and legal drama came to a head when state District Judge Catherine Mauzy of Austin issued a temporary injunction—briefly staying Fratta’s execution. Relying on the unrefuted declaration of a respected pharmacology expert, Mauzy ruled the Texas Department of Criminal Justice’s (TDCJ) stock of pentobarbital “is probably illegal to possess or administer because it is more likely than not expired.” 

As reported by McCullough, TDCJ appealed Mauzy’s ruling arguing she did not have jurisdiction in the case, an argument the Texas Court of Criminal Appeals and the Texas Supreme Court agreed with—allowing Fratta’s execution to proceed.

According to Dr. Joel Zivot, a practicing physician in anesthesiology and intensive care medicine at Emory University in Atlanta, Georgia, and an expert opposed to the use of lethal injections, “The bizarre legal back and forth over the ‘safety’ of expired pentobarbital turns safety on its head.”

Zivot told the Texas Observer that the use of expiration dates “guides a clinician and reassures the public” over the reliability of a drug. 

“The conduct of a Texas lethal injection execution declares what has perhaps been obvious all along: While expiration date might make the therapeutic use of a drug more circumspect, the poisonous effect of the same drug never expires,” Zivot said. “Owing to the zeal in which TDCJ applies itself to killing, it is hard not to imagine TDCJ might prefer to kill with expired drugs with the hope that the killing is even more torturous. Texas takes the pain of killing very seriously indeed.”

It’s impossible to ask an executed prisoner whether—and how much—they suffered before a lethally toxic chemical resulted in their death. However, lingering questions over whether Fratta was tortured aren’t going away, not with Ruiz, Balentine, and others awaiting their own tangles with Texas’s rickety machinery of death. 

But Fratta’s fate—and that of the prisoners next in line to suffer it—must not fall victim to the state courts’ constant willingness to be willfully blind to TDCJ’s malfeasance for another reason entirely: Rules of professional ethics were patently violated by the lawyers representing TDCJ before Judge Mauzy—and then, later too, in appellate proceedings.

How? On January 25, McCullough tweeted a document from the “Huntsville Unit Storage Inventory” for pentobarbital, adding, “Texas prisons got new execution drugs 5 days before executing Fratta this month, according to new drug logs.” She continued: “It’s notable that in this court fight, Texas prisons never said they had new drugs they planned to use.” McCullough concluded, “I don’t suspect they wanted to cave to the argument that using very old drugs is bad, since they have repeatedly done so in the past and may want to do so in the future.”

Other than deducing based on the storage inventory form’s shocking indication Texas received five doses of pentobarbital—just 10 days before Fratta’s execution—it is unclear what information McCullough is relying on for her assertion Fratta was executed using “new,” unexpired drugs. (She didn’t reply to a request for comment from the Observer.) What is clear from McCullough’s reporting is that in their bloodthirsty pursuit of Fratta’s execution, TDCJ’s lawyers violated the rules governing professional conduct for attorneys in Texas.     

“All litigators, and especially government lawyers, have a duty of candor to the court,” said Bruce A. Green, Louis Stein chair and director of the Louis Stein Center for Law and Ethics at Fordham University School of Law. “This includes a duty to correct the court’s factual misimpressions, especially those the government lawyers and their client created.”

Attorneys further have an ethical duty not to unreasonably multiply proceedings—essentially wasting the court’s and other parties’ resources as a litigation tactic.

And here’s where the rubber meets the road: At no time during the litigation about the pentobarbital’s beyond-use date—or after Fratta was executed—did TDCJ’s lawyers volunteer they had secured new, (presumably) unexpired doses of pentobarbital. 

“Here, the state proceeded on the factual premise that it had no choice but to use expired drugs in an execution,” Green told the Observer. “When that stopped being true, because the state acquired new drugs, its lawyers had to tell the judge, so that the court could decide whether it still had to decide whether the state could use expired drugs, or whether it should compel the state to use new drugs. The state’s lawyers deceived the court by their silence.”

If Fratta’s attorneys had but known TDCJ had newly acquired pentobarbital, they could have sought an order from Judge Mauzy ordering that only a dose from TDCJ’s new batch of unexpired pentobarbital be used in Fratta’s execution; such an order would have obviated constitutional concerns raised about the pain and suffering outdated pentobarbital might cause. Had that occurred—as morally, ethically, and legally it should have—no further legal proceedings about this subject would have been required in the Texas Court of Criminal Appeals or the Texas Supreme Court.   

Ellen Yaroshefsky, Howard Lichtenstein Professor of Legal Ethics and director of the Monroe Freedman Institute for the Study of Legal Ethics at Hofstra University, told us that the TDCJ lawyers “unethical conduct resulted in cruelty in the matter of death.” 

She continued, “It is unconscionable. The violation of the fundamental duty of candor to the court should be subject to sanctions and discipline.”

The preamble to the Texas Disciplinary Rules of Professional Conduct—titled “A Lawyer’s Responsibilities,” declares: “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” As such, lawyers must “maintain the highest standard of ethical conduct.”

Who will clue TDCJ in on this? Who will make sure that when TDCJ is pursuing executions—already a morally depraved activity for anyone to engage in—its attorneys won’t sully the legal profession further?