Updated Thursday at 11:30 a.m. to include comment from Charles Don Flores’ attorney and Wednesday at 5:10 p.m. to include comment from Sen. Juan “Chuy” Hinojosa.
A Texas court has denied the death row appeal of inmate Charles Don Flores, who argued he was improperly convicted in part due to evidence gleaned through hypnosis.
In an order issued Wednesday, the Texas Court of Criminal Appeals did not weigh the merits of investigative hypnosis, the controversial tactic used for decades by law enforcement in the Lone Star State. Instead, the court agreed with a lower court’s ruling that Flores could not challenge the use of hypnosis in his case under the state’s “junk science law," which allows people to contest their convictions if new scientific findings contradict evidence presented in their case.
Opponents saw the case as a chance to ban the longtime practice of presenting at trial evidence gleaned through a hypnosis session. Top Texas courts have not broached the topic since 2004 and the state’s investigative hypnosis guidelines, first laid out in a 1989 ruling, have never been changed by a court.
Sen. Juan “Chuy” Hinojosa authored a bill to crack down on investigative hypnosis after hearing about Flores’ case. His legislation failed to become law, but Hinojosa hopes to refile the bill in 2021.
“It is unfortunate that the court avoided the key issue and did not weigh on the merits of the use of hypnosis in the case where there is no corroborating evidence to support a conviction,” Hinojosa, D-McAllen, said in a statement. “In this case, you have a defendant who was convicted and sentenced to death based on hypnosis. Science and research considered hypnosis used for these purposes as ‘junk science.’”
A spokeswoman for Dallas District Attorney John Creuzot declined to comment. Flores defense team said it was disappointed in the decision.
“We were hoping that the Court would recognize that Mr. Flores’s conviction was irretrievably tainted by the junk science of ‘forensic hypnosis,'” Carlotta Lepingwell, deputy director of the Office of Capital and Forensic Writs, said in a statement. "Prior to hypnosis, the description had been of a thin white man with long hair, which looks nothing like Charles Flores, a heavyset latino with short hair.
Lepingwell added the decision should not keep others who were convicted based on hypnosis evidence from seeking relief under the junk science statute: “We don’t read the Court’s decision, though, as weighing in on the legitimacy of hypnosis, and think it should not preclude future challenges to the use of this junk science by law enforcement.”
Flores can still appeal his conviction in federal court. Creuzot’s office has not yet asked the district court to set a new date for Flores’ execution, Lepingwell said.
Flores was convicted of killing Elizabeth “Betty” Black during a home invasion in Farmers Branch in 1998. During the investigation, police interviewed a neighbor who saw two men exiting a car and entering Black’s home on the morning of her murder. Investigators put this neighbor through a hypnosis session in an attempt to learn more details about the men. More than a year later, the neighbor identified Flores in court as the passenger in that car.
While Flores had ties to Richard Lynn Childs, the man ultimately convicted of Black’s murder, this neighbor was the only witness to put Flores at the scene of the crime. No physical evidence linked Flores to the murder. He maintains his innocence in Black’s murder.
Flores was convicted under the “law of parties,” a Texas statute that lets accomplices be tried for the same crime as the perpetrator. He was sentenced to death. Childs, who pleaded guilty to killing Black, was sentenced to 35 years and was released on parole in 2016, two months before Flores was set to be executed.
The Texas Court of Criminal Appeals blocked Flores’ execution in 2016 to allow the trial court to determine whether modern science illustrated the flaws in the use of hypnosis to elicit memories and whether the witness’ identification was vital to Flores’ conviction.
“Take her out of the equation and there wouldn’t have been a conviction,” defense attorney Gretchen Sween contended during an appellate hearing in 2017, according to Dallas Morning News archives.
It’s unclear whether Flores has any other way to block his execution, although it will likely be delayed as the state puts all lethal injections on hold during the coronavirus pandemic.
While investigative hypnosis has come under increasing scrutiny nationally as states crack down on perceived junk sciences, no regulatory body in Texas oversees the practice. The Texas Forensic Science Commission, one of the most proactive agencies in the country tasked with examining faulty investigative tools, reviewed the use of bite mark and blood spatter analysis in recent years. But the commission says it cannot evaluate hypnosis because state law only allows it to examine forensic methods that analyze physical evidence.
This allows Texas police to use investigative hypnosis free from state oversight.
A recent News investigation showed how frequently Texas law enforcement uses hypnosis, despite a near consensus in the scientific community that it does not lead to accurate recall of memories and may implant false details in the mind of a witness or victim.
The analysis shows prosecutors in Texas sent at least 54 people to prison in cases that involved a hypnosis session since the mid-1970s. Courts reversed the convictions of five of these men based at least in part on the use of hypnosis in their cases. Four remain on death row and 11 were executed.
At least 21 states ban evidence in court that was gleaned solely through hypnosis. Yet The News’ investigation found Texas law enforcement has used the dubious method nearly 1,800 times over 40 years, sending dozens of people to prison — and some to their deaths. After one week of training, any Texas law enforcement officer who passes an exam can attempt to use hypnosis in a criminal investigation. Hundreds of peace officers have been certified to practice it in Texas since 1988.
CORRECTION, 10:15 a.m., May 7, 2020: An earlier version of this story incorrectly said Steven Lynn Childs pleaded guilty to Elizabeth Black’s murder. His name is Richard Lynn Childs.
