A Texas death row inmate who was convicted of murder after authorities used hypnosis on a witness to identify him will make his final appeal attempt.
Charles Don Flores will make one last effort in U.S. Supreme Court to appeal his murder conviction in the death of Elizabeth ‘Betty’ Black.
He’s spent the last 22 years on death row, appealing and avoiding execution, as his legal team and supporters attempted to disprove a witness account they argue is based on ‘junk science.’
‘I hope they rule that hypnosis is junk science and is not based on science and reliable research,’ Sen. Juan “Chuy” Hinojosa told The Dallas Morning News.
‘You should never convict a person or sentence a person to death based on hypnosis without any corroborating evidence.’
Charles Don Flores (pictured) will make one final attempt to appeal his death row sentence in US Supreme Court
Gretchen Sween, Flores’ attorney, added that ‘it’s junk science. The practice really needs to be relegated to the waste bin.’
Sween said she will file to appeal the death row sentence next month, but Flores’ life and future in the meantime will hang in limbo.
Flores, 50, was arrested by authorities after the murder of Elizabeth Black, a 64-year-old mother who was shot dead inside her Farmers Branch home in January 1998.
Neighbors that morning remembered a Volkswagen Beetle, decked out with psychedelic purple waves, parked in front of the family’s home and two long-haired white men inside the car.
The driver, identified as Richard Lynn Childs, and one passenger slipped underneath the Black’s garage door, shot the older woman dead and ransacked the home.
The suspects never found the hidden $39,000 in cash that belonged to the couple’s son, who amassed the money through drug-related incidents and was away in prison.
A witness identified Flores (left) as the Volkswagen’s passenger after neighbors noted seeing the vehicle parked in front of the Black’s home. Pictured: a mugshot of Flores and police sketch
Sen. Hinojosa: ‘You should never convict a person or sentence a person to death based on hypnosis without any corroborating evidence’ Pictured: Charles Don Flores
William Black found his wife and their Doberman, Santana, shot to death later that morning.
Several neighbors told authorities about the odd Volkswagen and the two white men with long hair that exited the vehicle, but Jill Barganier would become the case’s eye witness.
Bargainer’s account for the most part matched her neighbors, but she had difficulty recalling what the vehicle’s passenger looked like.
She struggled to pick out the correct passenger when the Farmer Branch Police Department presented her with a lineup.
That’s when one police officer took a controversial approach and hypnotized her.
The Dallas Morning News in April published the results of an investigation into how Texas law enforcement utilized hypnosis to solve local crimes.
Authorities claimed that hypnosis could jog victims’ and witnesses’ memories while investigating thousands of crimes across the state.
The hypnosis session appeared a failure after Bargainer failed again to identify the passenger in a second lineup, but a year later she named Flores as the suspected man after seeing him in a courtroom.
Jill Barganier (pictured) was a neighbor of Elizabeth Black and underwent police hypnosis to help find the murderers
‘When I saw him in person, there wasn’t any doubt,’ she said.
Flores was later sentenced to death by lethal injection, but the driver, Richard Lynn Childs, would be given a far less severe punishment.
Childs was sentenced to 35 year in prison after pleading guilty and got out on early release in 2016 – just a few months before Flores’ first scheduled execution date.
A new execution date for Flores has not been scheduled yet, but his attorney hopes the appeal will set her client free and that police hypnosis in debunked.
‘Now we know so much more about how memory does and does not work, why eyewitness identifications are associated with so many wrongful convictions and why there are no legitimate ways to conduct investigative hypnosis that do not increase the risk of tampering with memory,’ said Sween.
The use and credibility of police hypnosis has previously been argued by the U.S. Supreme Court.
In 1987, the majority ruled in a split decision that a defendant in a criminal case cannot be banned from testifying on their own behalf simply because they had been hypnotized.
They determined that an individual can defend themselves even if a state bars statements made during a session due to their unreliability,
Richard Lynn Childs (left and right) pleaded guilty in the murder of Elizabeth Black and was sentenced to 35 years in prison
But the practice was not formally backed or endorsed by the justices.
‘Scientific understanding of the phenomenon and of the means to control the effects of hypnosis is still in its infancy,’ the majority wrote in the ruling.
Now, the majority of the scientific community has decided that there’s no credible way to validate the testimonies of witnesses and victims under hypnosis.
Studies have shown that people believed to be hypnotized sometimes magnified or even created memories that didn’t happen.
Unlike claims sometimes made with police hypnosis, scientists agreed that the brain does not record memories like a continuous footage reel.
Courts have banned evidence related to hypnosis, and nearly half of all US states prohibit similar testimony.
But Texas has continued to rely on police hypnosis as a resource to investigate crimes, with the Texas Rangers accounting for 1,800 sessions since 1980, The Dallas Morning News reports.
They administered a session as recently as October 2019 to aid in a murder investigation.
The Lone Star State currently has the most prolific program in the country and have certified more than 800 police hypnotists so far.
Any Texas authority can use police hypnosis for criminal investigations after just one weeklong course and a written test.
Family and supporters of Flores (pictured) have argued against the credibility of police hypnosis
Despite the mounting scientific evidence against hypnosis as a law enforcement tool, departments have continued to use the practice and pushed back at critical lawmakers.
Much of the controversy surrounding Flores’ are concerns that hypnosis altered Bargainer’s memories and led her to name the wrong suspect.
Following the murder, Flores’ attorney argued that Bargainer described the passenger as a white man with long hair.
But she later testified that Flores – a short, stocky Hispanic man – was the passenger.
‘No one was talking about a fat Hispanic male,’ said Sween.
Authorities had no physical evidence linking Flores to the murder, but he was tried under the ‘law of parties,’ which allows co-conspirators to be tried for the same crime.
Texas officials have been reluctant as of late to re-examine, having declined to do so this May.
Jason January, the lead prosecutor in Flores’ case, defended police hypnosis and the conviction last year in a letter to Sen. Hinojosa. He claimed there was tons of other evidence against Flores.
‘Mr. Flores and his supporters are erroneously stating that the entire case of the prosecution rested solely upon the testimony of only one witness who had been hypnotized and that after hypnosis the witness changed her story,’ wrote January.
Flores was seen with Childs hours before the shooting and witnesses saw him burning the Volkwagen hours after the murder.
Prosecutor Jason January: ‘Mr. Flores and his supporters are erroneously stating that the entire case of the prosecution rested solely upon the testimony of only one witness who had been hypnotized and that after hypnosis the witness changed her story’
Flores escaped to Mexico and, after law enforcement captured him, tried once again to flee.
He told friends and family that he was at the scene when Black was killed, and even admitted to shooting the Dobermann.
Flores denied making those confessions and said law enforcement persuaded his family against testifying on his behalf.
‘To throw the ‘baby with the bathwater’ by excluding all hypnotically refreshed testimony might very well result in a miscarriage of justice in the future for a victim,’ wrote January.
Hinojosa is the former assistant attorney general who helped create the Texas commission that evaluates junk sciences. He’s tried to dispel the controversial tool.
In 2019, the senator launched a bill to prohibit evidence obtained through hypnosis but it failed after law enforcement opposed the effort.
He has vowed to bring back the bill when Texas lawmakers met next year.
‘We need a criminal justice system that people can depend and rely on and trust,’ said Hinojosa.