Because these things happen all the time: laws that are wrong, and poor investigative practices with witnesses.

Can Penn & Teller Magically Get SCOTUS To Consider Wrongful Conviction Appeal?

Charles Flores has been on Texas’s death row for over two decades for a crime the state knows he didn’t commit.

Robyn Pennacchia

Charles Don Flores has sat on Texas’s death row for 27 years for the murder of Elizabeth “Betty” Black in 1998, during the commission of a robbery. The problem is, he did not kill Elizabeth “Betty” Black. That’s not just conjecture or me believing in someone’s innocence; even the state of Texas does not claim that he killed her. The man who actually did kill her was also sent to prison for the crime and was released over a decade ago, but Flores was sentenced to the death penalty for supposedly participating in the crime. Texas, you see, has a law called the “law of parties” that holds every participant in a crime responsible for everything that happened during its commission. So, for instance, if you drive the getaway car and your accomplice kills someone during the commission of a robbery, you are held equally responsible, even if you didn’t even know it happened.

There was no physical evidence, no DNA connecting Flores to Black’s murder. There is, in fact, no evidence whatsoever beyond his identification by a single neighbor who didn’t pick him out of two photo line-ups and initially said both men she saw where white with an average build and long hair, while Flores, clearly Latino, was a bigger guy with short hair.

So why is he there again? Because that neighbor, Jill Barganier, was later “hypnotized” by a cop who had never hypnotized anyone before. A cop who hinted, repeatedly, at the suspect having short or shaved hair, who told her she would continue to remember even more things about the robbery after the hypnosis. By the time she made it to court — after she had seen Flores’s picture on TV and in the news on many occasions — she was able to point to him in court as the accomplice of the the man who killed Betty Black.

There’s a lot that’s wrong with this case, obviously, but the hypnosis part is what caught the attention of magicians Penn & Teller, who recently submitted an amicus brief to the Supreme Court asking them to consider Flores’s case. Why? Because, they say, what the officer did is no different than what they do in their Vegas show every night.

“I am bringing this to you with the utmost humility,” Penn Gilette told The New York Times. “I am carny trash. I am uneducated. If you want to say I have a position of expertise, it is that I have lied to people onstage and gotten them to believe it. And I think I could do what that police officer did.”

The brief reads:

Despite the fact that Mrs. Barganier described the passenger in the car she saw at the scene of the crime as a white man with long hair, she was fed repeated suggestions by law enforcement that the passenger had “neatly trimmed” or “short, shaved” hair; she was told by the officer-hypnotist that she would remember more after the hypnosis session; and months later— after photos of Mr. Flores appeared in the press and she saw him seated at the defense table at trial— suddenly she identified him as the passenger. It is of little surprise that she was confident in her in-court identification when she saw this now-familiar face and believed she had produced it from her memory: That is exactly what the officer told her would happen. But it was not real. Some of the same cognitive techniques Penn & Teller use on stage to trick audience members’ memory and alter their perception explain how the investigative hypnosis session induced Mrs. Barganier to abandon all previous descriptions of the suspect and instead point to Mr. Flores.

On the tape, the officer keeps telling her that her memory is like a videotape that she can rewind and fast-forward at will. And it’s very tempting to believe that. It’s very tempting and comforting to believe that our brains are always recording whether we are aware of it or not and that, with the help of something like hypnosis, we can access those recordings. Certainly no one wants to believe that someone can more or less just jump into your brain and make you believe you saw things you didn’t see.

Our minds have a tendency to fill in the gaps if we don’t remember everything that happened in a particular situation, they explain, and memory retrieval process distorts memories — things they take advantage of as magicians.

By manipulating an audience’s memory—both in its formation and its recall—Penn & Teller get the audience to convince themselves that things have happened when, in reality, those things never occurred. That is all well and good for purposes of entertainment. But the same suggestion-based memory manipulation was also on display in the investigative hypnosis of Mrs. Barganier. And the officer-hypnotist left her believing that new things that came to mind later were true “memories” she could testify about, not merely things her brain subsequently filled in.

They can tell you exactly how he did it, as well.

The suggestion inherent in the investigative hypnosis of Mrs. Barganier is obvious: The officer/hypnotist asked her multiple questions about whether either suspect had short, shaved, neatly cut, or trimmed hair—even as Mrs. Barganier reiterated that both had long, wavy hair. The officer then showed Mrs. Barganier a photo lineup in which every photo was of a Hispanic male with short hair. Mrs. Barganier again did not identify Mr. Flores from that photo lineup. But she then also saw his photo in news coverage of the case prior to trial. Combined with the assurances of the officer-hypnotist that she would remember more as time went on, she was primed to “remember” Mr. Flores at trial. And she was particularly primed to do so because she was understandably motivated to assist police in finding the person who had committed a violent murder next door to her home. Pet. 6. Moreover, Mrs. Barganier’s certainty that her belated, in-court identification of Mr. Flores was correct (“over 100%” positive, as she testified), is not surprising. As Penn & Teller have observed, it is “very difficult for the audience to contradict the ideas that they themselves have constructed.”

The truly appalling thing about all of this is that the state of Texas actually knows that they are right about hypnosis being junk science. Just a few years ago, the state banned investigative hypnosis from being submitted as evidence in court. Of course, that was well after Flores was convicted and it had been used in over 1,800 trials over the course of four decades. In 2013, the state also enacted a “junk science” law, allowing for individuals to appeal for a new trial if the forensic science used to convict them has been found, upon further study, to be bullshit. This includes “evidence” like bite mark analysis, fiber analysis, bloodstain pattern analysis and 911 call analysis (one of the scariest ones, in my opinion, given that people have such wildly varying reactions in any kind of emergency).

It has not been going well.

Yet, Texas is fighting against Flores’s appeal and still hopes it will get to execute him. Because it’s Texas, and they really, really like executing people there.

There is a lot that is frustrating about our criminal justice system, but somewhere near the top is definitely the stubborn refusal of many involved with it to correct things when they’ve made a mistake. We see it over and over again, and it’s bad enough when it happens with someone serving any kind of sentence, especially a long one, but it’s unconscionable when we’re talking about the death penalty. There are no take-backs with the death penalty, and nothing anyone, even a magician, can fix once someone is dead.