By Rabbi Benjamin Zober and Abraham Bonowitz
The first Texas execution in 2023 is set for Tuesday, January 10th, and there remain serious questions for which there are no dependable answers. On Wednesday last week, the Texas Court of Criminal Appeals dismissed an opportunity to seek answers purely on procedural grounds, without even considering the questions. On Monday, January 9, 2023, the US Supreme Court denied the final pending appeal seeking to halt the execution.
In a state where so many in policy-making positions cite scripture to support executions, it is worth taking a look at how a full evaluation of scripture might address the case of Robert Fratta, who was convicted in the murder of his wife, Farah Fratta, in 1994. The challenge for those who use the Bible to justify executions lies not so much in the words of Jesus, who challenged those without sin to cast the first stone.
For Christians, one would think that would end the discussion. But for those who reference the Hebrew scriptures in Leviticus and elsewhere, we must look to the restrictions imposed by Halacha – Jewish law as established over the centuries by Rabbinic sages.
Current Texas law bears none of the hallmarks of reliability spelled out in the Talmud. In fact, the safeguards of reliability in Talmudic law outstrip both theory and practice of American Jurisprudence. From the very outset of a capital case in Talmudic Law, the caution and concern for reliability is paramount. “How do we press the witnesses in a capital case?” the Talmud asks. They are warned about the reliability of their testimony, that it might be based on something less than their own certain recollections. This was long before we had studies demonstrating that mistaken eyewitness identification was among the leading causes of wrongful conviction.
In the Fratta case, it is undeniable that law enforcement and the prosecution hid crucial exculpatory evidence. Among this: a key eyewitness changed her testimony after undergoing hypnosis. Where before her entrancement, she described 3 perpetrators, afterwards, she recounted only 2 and the State put forth strained explanations to reconcile the accounts.
A hypnotized witness is not a reliable one, which is one reason why hypnosis is considered junk science and is no longer used by Texas law enforcement agencies. Were it reliable, prosecutors would not have feigned ignorance to its use in this case. And the police, who admitted to its use, would have been more forthcoming about the scope of their hypnotic investigation. Subsequent investigations into the police’s behavior have revealed that members of the police and prosecution were present for the hypnosis session, which also included more questions than police admitted.
Such a procedure is far from passing Talmudic muster, and should similarly strain our credulity. Again looking to the Talmud, we see a standard that towers far above us, this case in particular: “We bring them in [to the court’s chambers] and press them: “Perhaps what you say [isn’t eyewitness testimony] is but your own assessment, or from rumors, or your witnessing an actual witness testify, or your reporting what a trustworthy said. Or perhaps you were unaware that by the end we’d interrogate you, with examination and inquiry.”
How does one cross-examine a recollection that changed while someone was not even aware? All the more so, when the other people present can provide no accountability for their procedure or influence?
Among the Talmudic and Biblical safeguards was a requirement of (at least) two witnesses. “At the mouth of two witnesses or three witnesses shall he who is to die be executed,” (Deuteronomy 17:6).
“In another passage, the Talmud speaks to witnesses, Alternatively, from the phrase “at the mouth of two witnesses” one derives that the judges must hear the testimony directly from the witnesses, and the Sanhedrin will not hear testimony from the mouth of an interpreter. (Makkot 6b)” One person, offering two accounts, is not the same as two witnesses. Further, when those accounts differ, says the Talmud, both must be excluded. Bobby Fratta had two different eye-witness accounts, from one witness. By any analysis, this should be highly dubious.
The other key witness against Fratta was an alleged co-conspirator. Mary Gipp, an alleged accomplice, testified against him, in exchange for immunity. While such deals are common in our system, the Talmud viewed such deals with great skepticism. What good are 2 witnesses, or even 200, if they have conspired against the accused?
In our system, it is the prosecution that secures the testimony of co-conspirators and there is little hope that what Jewish law calls “conspiring witnesses” would be held accountable, especially when it is the prosecution that is part of making those deals. It is a system ripe for abuse, a reality that was not unknown, even in Biblical times, where they pronounced the punishment for such collusion: “You shall do unto him as he conspired to do to his brother.” (Deut, 19:19) To what extent the prosecution and Mary Gipp were conspiring witnesses is still unknown. The State has never disclosed the terms of its deal with her. Whether those prosecutors withheld exculpatory evidence in this case as they did to secure other, now overturned convictions, we cannot know.
And not knowing is what should change this case. We do not know so much: what hypnosis did to the real memories of the lone eyewitness. We do not know what the State offered Mary Gipp in exchange for her testimony. Finally, given the past constitutional violations of the prosecutors in this case, we do not even know what we do not know.
We do know that the consequences here are severe. We know that an execution is irreversible. It is for this reason that the Talmud includes a final part of its warning for capital cases: “Know that capital cases are not like monetary ones. In monetary cases, [a false witness] can return the money and achieve atonement. But in capital cases, the blood of [the victim] and all his future offspring hang upon you until the end of time.”
Watch The Final Words of Bobby Fratta
A final conversation with #RobertFratta, whose final appeals were dismissed in court after court on procedural grounds rather than the merit of his arguments, which have substance to them. This was recorded on January 8, 2023, about 45 hours before killing time.
Unless the Texas Board of Pardons and Paroles recommends clemency in this case, Texas Governor Abbot is precluded from granting clemency, but he may reprieve the execution for 30 days. Learn more at bit.ly/BobbyFratta and call Governor Abbott at 512-463-2000.
Final Words from Bobby Fratta – Set to be Executed This Evening in Huntsville, Texas
Huntsville, TX – Texas death row prisoner Robert Fratta is set to be executed at 6pm CT today, January 10, 2023 in Huntsville, Texas for his alleged participation in the murder of his wife, Farah Fratta. Details and facts of urgent concern are at bit.ly/BobbyFratta.
Ina final conversation with Robert Fratta on Sunday evening, Death Penalty Action executive director Abraham Bonowitz gave Fratta an opportunity to share his thoughts with the world. This was just after most of Fratta’s final appeals were dismissed in court after court on procedural grounds rather than the merit of his arguments, which have substance to them. (Fratta’s final appeal to the US Supreme Court was denied on Monday.) This discussion was recorded at approximately 9pm on January 8, 2023, about 45 hours before killing time. Watch/listen to the conversation here: https://youtu.be/tel_gZsB6Hc
(Bonowitz met Fratta while visiting another inmate on Texas death row in 1998. He wrote to Bobby upon learning an execution date had been set, and the two men have been exchanging emails for several weeks. Prisoners on death watch in Texas receive one hour of phone time each evening for the final week prior to the execution. In the past week, Bonowitz and Fratta spoke on the phone four times. The two had not communicated between the time they met in 1998 and December, 2022.)
Death Penalty Action representatives will join the protest vigil starting at 5pm CT outside of the Huntsville Unit where the execution is set to take place. Bonowitz and a number of colleagues from Texas, Ohio and Florida will be present. They will be participating along with individuals from around the world in a live virtual vigil via Zoom and broadcast on the Death Penalty Action Facebook Page. Registration is at bit.ly/RobertFrattaVV.
Unless the Texas Board of Pardons and Paroles recommends clemency in this case, Texas Governor Abbot is precluded from granting clemency, but he may reprieve the execution for 30 days. Of note, normally the Texas Board of Pardons and Paroles issues its determination on Monday, the week of the execution. As of 8am, no notice of a decision is found on the TX BPP web page. The public is urged to learn more at bit.ly/BobbyFratta and call Governor Abbott at 512-463-2000.