Application — Robert Fratta, Applicant v. Texas

No. _______ (CAPITAL CASE)

IN THE SUPREME COURT OF THE UNITED STATES

_________________________________

ROBERT ALAN FRATTA

Petitioner,

v.

THE STATE OF TEXAS

Respondent.

_________________________________

On Petition for a Writ of Certiorari

to the Texas Court of Criminal Appeals

_________________________________

EMERGENCY APPLICATION FOR STAY OF EXECUTION

PENDING DISPOSITION OF PETITION FOR WRIT OF

CERTIORARI

**Execution scheduled for

Tuesday, January 10, 2023 at 6 p.m.**

_________________________________

MAUREEN FRANCO

Federal Public Defender

Western District of Texas

TIVON SCHARDL

Capital Habeas Unit Chief

* Counsel of Record

JOSHUA FREIMAN∗

AMY FLY

Assistant Federal Public

Defenders

919 Congress Avenue, Suite 950

Austin, Texas 78701

737-207-3007 (tel.)

512-499-1584 (fax)

Joshua_Freiman@fd.org

APPLICATION FOR STAY OF EXECUTION PENDING DISPOSITION OF

PETITION FOR WRIT OF CERTIORARI

To the Honorable Samuel Alito, Associate Justice, and Circuit Justice for the

United States Court of Appeals for the Fifth Circuit:

INTRODUCTION

Over two decades before his scheduled execution date, Fratta discovered that,

prior to his capital murder trial, detectives arranged for the only eyewitness to his

wife’s murder to be hypnotized and re-questioned about her memory of the event. At

the time of this discovery, Fratta had already been convicted and sentenced to death

based in part on this eyewitness’s testimony, which materially differed from the

statement she provided detectives before she was hypnotized. Fratta pursued Brady

claims about the State’s suppression of the hypnosis in both state and federal

courts. In denying these claims, every court that reviewed them concluded “that the

procedures used during the hypnosis are [] not relevant” because “the hypnosis was

not successful and did not alter [the witness’s] account of events.” Fratta v. Davis,

No. 4:13-CV-3438, 2017 WL 4169235, at *29 (S.D. Tex. Sept. 18, 2017). These

conclusions grew from the affidavits of detectives and trial prosecutors the State

obtained in response to Fratta’s allegations under Brady v. Maryland, 373 U.S. 83

(1963). The affidavits asserted that trial prosecutors did not know the hypnosis

occurred, and that questioning of the eyewitness while she was hypnotized was

limited to the description of the getaway car and produced no new information.

After Mr. Fratta’s execution date had already been set, he learned for the

first time that the information the State provided in these affidavits was false and

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misleading. Armed with this new evidence, Mr. Fratta filed a subsequent

application for writ of habeas corpus under Texas Code of Criminal Procedure

Article 11.071, § 5(a)(1). He argued that, though he previously raised Brady claims

related to the hypnosis, the newly discovered evidence—that would have supported

the materiality of his prior Brady claims—could not have been discovered earlier

because of the State’s misleading response to Fratta’s prior Brady allegations. As

such, Fratta argued he was entitled to obtain review of the merits of his claim

under § 5(a)(1). The Texas Court of Criminal Appeals disagreed, and dismissed his

application as an abuse of writ.

When the State’s suppression of the hypnosis of a key eyewitness first came

to light, the State had a duty to “set the record straight.” Banks v. Dretke, 540 U.S.

668, 676 (2004). Instead, the State selectively disclosed some information related to

the hypnosis, but continued to bury the evidence that substantiated the materiality

of Fratta’s claim. Now, the Texas Court of Criminal Appeals has interpreted §

5(a)(1) in a way that rewards the State for its misrepresentations. Because of the

State’s failure to disclose all exculpatory evidence related to the hypnosis when

Fratta first raised Brady allegations, Fratta discovered the evidence in a piecemeal

fashion. And because Fratta exercised diligence and raised the Brady violations as

soon as they were discovered and was denied adequate discovery to support those

claims, now that he has the necessary evidence to support materiality, his claim is

barred.

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Mr. Fratta respectfully requests a stay of his execution, currently scheduled

for Tuesday, January 10, 2023 at 6.p.m. Central time, pending its disposition of his

petition for writ of certiorari. As set out below, this case satisfies each consideration

relevant to that determination.

REASONS PETITIONER IS ENTITLED TO A STAY

The standard for granting a stay of execution is well-established. This Court

will consider the prisoner’s likelihood of success on the merits, the relative harm to

the parties, and the extent to which the prisoner has unnecessarily delayed his or

her claims. Hill v. McDonough, 547 U.S. 573, 584 (2006); Nelson v. Campbell, 541

U.S. 637, 649-50 (2004). In the present context, there must be “a reasonable

probability that four members of the Court would consider the underlying issue

sufficiently meritorious for the grant of certiorari” and “a significant possibility of

reversal of the lower court’s decision,” in addition to irreparable harm. Barefoot v.

Estelle, 463 U.S. 880, 895 (1983) (citation omitted). All of these factors weigh in

favor of staying Fratta’s execution pending this Court’s review of the issues raised

in his petition for certiorari.

I.

Fratta has not delayed in seeking a stay; any delay is attributable to

the State’s misconduct.

A consideration for this Court is whether Mr. Fratta’s petition is a “lastminute attempt[] to manipulate the judicial process.” Nelson v. Campbell, 541 U.S.

637, 649 (2004) (quotation marks and citation omitted). The last-minute nature of

the Brady claim raised in Fratta’s subsequent habeas application below must be

attributed to the State—not Mr. Fratta. Indeed, Mr. Fratta discovered the new

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evidence showing the State made misrepresentations in November 2022, in

response to his prior Brady allegations. Mr. Fratta filed a subsequent application

for habeas corpus the following month. Because the State withheld the evidence

supporting the factual predicate of the claim for nearly 30 years, Mr. Fratta could

not have filed this claim any sooner. “[T]he government alone holds the key to

ensuring a Brady violation does not occur. So the government cannot be heard to

complain” of delay in the administration of a death sentence that was “necessitated

by its own late disclosure of a Brady violation.” Scott v. United States, 890 F.3d

1239, 1252 (11th Cir. 2018).

The record demonstrates that Mr. Fratta has exceeded reasonable diligence

in attempting to obtain information from the State about the hypnosis ever since he

first learned it occurred. He raised a Brady claim and sought and was denied

discovery in state court proceedings. In response to his allegations, the State

produced affidavits with false and misleading information that staunched further

inquiry by both the courts and defense counsel. Mr. Fratta was entitled to rely on

the State’s representations and therefore could not have obtained the newly

discovered information earlier. Banks v. Dretke, 540 U.S. 668, 695 (2004) (“Our

decisions lend no support to the notion that defendants must scavenge for hints of

undisclosed Brady material when the prosecution represents that all such material

has been disclosed.”).

II.

A reasonable probability exists that the Court will grant certiorari.

There is a reasonable probability the Court will grant certiorari to review the

judgment of the TCCA and answer the question presented in this case. A

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“reasonable probability” is usually understood as describing a likelihood lower than

“more likely than not[.]” Smith v. Cain, 565 U.S. 73, 75 (2012) (discussing

“reasonable probability” of a different outcome in the context of Brady materiality).

Thus, to be entitled to a stay of execution until the Court can review his petition in

due course, Mr. Fratta need not demonstrate a high likelihood that the Court will

decide to hear his case, but only a reasonably good chance of that outcome.

Rule 10(c) identifies as a relevant consideration in the Court’s exercise of its

certiorari jurisdiction whether “a state court … has decided an important federal

question that has not been, but should be, settled by this Court[.]” This case

presents this court with an important federal question:

Whether § 5(a)(1) is an adequate and independent state procedural

ground to bar review of a Brady claim where the petitioner discovers

new exculpatory evidence after the conclusion of initial state and

federal habeas review because the State’s selective disclosure of

information in response to a prior Brady allegation concealed the facts

that supported the claim’s materiality.

The Texas Court of Criminal Appeals interpretation of its procedural bar on

subsequent applications strips capital habeas petitioners of any opportunity to have

their Brady claims meaningfully reviewed when the State’s continued suppression

of exculpatory evidence forces defendants to adjudicate the Brady allegations in a

piecemeal fashion. Thus, when a capital defendant finally discovers evidence after

initial state and federal proceedings that would have supported the materiality of

the Brady claim, they are procedurally barred from review. This Court should find

that this interpretation of state procedural bars is not adequate to prevent this

Court’s review. Further, given the underlying facts of Fratta’s Brady claim—the

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State’s suppression of hypnosis of the only eyewitness to the murder—there is at

least a reasonable probability that four Justices will think review is necessary.

III.

Mr. Fratta raises substantial grounds upon which relief may be

granted.

In addition to raising important issues worthy of this Court’s

attention, Mr. Fratta has demonstrated that he is entitled to the relief he seeks. In

dismissing Fratta’s initial Brady claim—which was unsupported by the new

recently discovered evidence of materiality— the federal court stated that “Fratta

raises serious accusations. . . requiring sober consideration.” Fratta , 2007 WL

2872698, at *24. That court accepted as true the State’s affidavits stating the

hypnosis produced no new information about the identity of the shooter and that

the questioning of eyewitness Laura Hoelscher was limited to questions about the

getaway car. Under these operative facts, Mr. Fratta could not successfully argue

that law-enforcement-led hypnosis explained why the witness’s testimony about the

number of perpetrators present at the scene of the murder substantially deviated

from her initial statement the night of the crime.

Recently discovered information, however, provided that missing support. A

2022 declaration from Laura Hoelscher demonstrates that she was in fact

questioned about her memory of what she initially described as the shooter in red

pants and later testified was an unidentifiable “red flash”—not a person.

Had Hoelscher testified to what her original recollection was prior to the

hypnosis, Hoelscher’s testimony would have undermined, rather than support, the

State’s case. The State’s theory of Mr. Fratta’s guilt was built around the presence

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of two men at the scene—Howard Guidry and Joseph Prystash as the shooter and

getaway driver respectively. Laura Hoelscher’s testified that the shooter was a

Black man dressed in all black, which matched the description of Guidry on the

night of the crime. But Hoelscher’s pre-hypnosis description of the shooter was a

person in red pants, which did not match the description of Guidry’s clothing that

night. The suppressed information linking the hypnosis to the change in Hoelscher’s

recollection would have provided powerful impeachment evidence. Under these

circumstances there is at least a reasonable probability that four Justices will think

review is necessary.

IV.

Fratta will suffer irreparable harm absent a stay.

Irreparable harm is indisputably present when a stay of execution is sought.

As this Court has explained, “death is different”—“execution is the most

irremediable and unfathomable of penalties.” Ford v. Wainwright, 477 U.S. 399,

411 (1986) (plurality op.); see also Wainwright v. Booker, 473 U.S. 935, 935 n.1

(1985) (Powell, J., concurring) (“The third requirement—that irreparable harm will

result if a stay is not granted—is necessarily present in capital cases.”).

In this capital case, Fratta’s irreparable injury would be a by-product of the

State’s unconstitutional behavior. Without interference from this Court,

“prosecutors can run out the clock and escape any responsibility for all but the most

extreme violations.” Bernard v. United States, 141 S. Ct. 504, 507 (2020)

(Sotomayor, J., dissenting from denial of certiorari).

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This Court should not allow Mr. Fratta to be executed without affording him

the opportunity to have his Brady claim meaningfully heard. Absent intervention

from this Court, Mr. Fratta is going to be executed without his right ever being

vindicated.

V.

The public interest favors granting a stay.

The community as a whole will suffer harm if no stay is granted. Allowing

State misconduct to go unremedied will erode the public’s confidence that the court

system offers a level playing field, providing a forum to redress grievous wrongs.

And there is an “overwhelming public interest” in “preventing

unconstitutional executions.” Bronshtein v. Horn, 404 F.3d 700, 708 (3d Cir. 2005)

(citation omitted). A stay of execution, in fact, will serve the strong public interest –

an interest the State of Texas shares – in administering capital punishment in a

manner consistent with the Constitution. “Courts, litigants, and juries properly

anticipate that ‘obligations [to refrain from improper methods to secure a

conviction] ... plainly rest[ing] upon the prosecuting attorney, will be faithfully

observed.’” Banks, 540 U.S. at 696 (quoting Berger v. United States, 295 U.S. 78, 88

(1935)) (alterations in original).

CONCLUSION

For these reasons, this Court should enter an order staying Fratta’s execution

pending resolution of the issues raised in his petition for writ of certiorari.

Respectfully submitted,

Maureen Franco

Federal Public Defender

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Western District of Texas

Tivon Schardl

Joshua Freiman

Joshua Freiman

919 Congress Ave., Suite 950

Austin, Texas 78701

Counsel for Petitioner

January 6, 2023

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