Texas death row inmate Charles Flores is seeking to force the state’s highest criminal court to consider whether his murder conviction was tainted by witness testimony that was improperly influenced by hypnosis.
Flores was sentenced to death in 1999 for the robbery and murder of 64-year-old Betty Black. She and her dog were shot dead in her Dallas County home that was torn apart in search of a large sum of money her son, a drug dealer, kept in the house.
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At trial, prosecutors leaned on the testimony of Jill Barganier, a neighbor who identified Flores “100 percent” as one of two men she saw enter Black’s home the morning of the murder.
Now Flores is before the U.S. Supreme Court, arguing that Barganier’s recollection was improperly influenced when she was hypnotized by investigators after providing suspect descriptions that didn’t match Flores’ appearance.
Barganier testified at trial that she asked police to put her under hypnosis to provide a better description of the men she saw. She was hypnotized by Farmers Branch police officer Alfredo Roen Serna, who had never done so before, according to Flores’ petition to the Supreme Court.
Initially, Barganier told police she saw two white men with long hair enter the home. Flores is a Hispanic man who at the time had short hair, the petition said.
During the hypnosis session, Serna twice asked whether one of the suspects had short, trimmed hair, even as Barganier repeated that both men had shoulder-length hair.
Immediately after the hypnosis session, Barganier did not identify Flores out of a photo lineup. It wasn’t until Barganier was on the witness stand that she identified Flores as one of the men she had seen outside Black’s home, the petition said.
The judge noted that Flores was the only Hispanic person in the courtroom but dismissed concerns from Flores’ trial attorney, who complained that hypnosis and media reports about Flores’ trial had influenced her recollection. The petition said no material evidence tying Flores to the crime, such as DNA or fingerprints, was presented at trial.
Flores’ petition argues that Serna’s questions about trimmed hair during the hypnosis session and investigators’ preference for Flores as a suspect ultimately led Barganier to believe she had seen Flores.
Flores wants the Supreme Court to order the nine judges on the Texas Court of Criminal Appeals to determine if police hypnosis ran afoul of the state’s “junk science” law, which allows inmates to challenge convictions that relied on now-debunked science or procedures. To meet the law’s requirements, defendants must present scientific evidence that was not available at trial that would have prevented their conviction.
The Court of Criminal Appeals has rejected three of Flores’ appeals under the junk science law, most recently for failing to meet the law’s requirement for evidence that was not previously available or indicates a constitutional violation.
“[In] these narrow circumstances, where a state has created a liberty interest specifically to avoid executing the innocent, due process demands more than unexplained summary dismissal in response to a substantial threshold showing of actual innocence,” Flores attorney Gretchen Sween wrote.
Flores was scheduled to be executed in 2016 before it was halted by the Texas court to consider scientific evidence related to Barganier’s hypnosis. It later declined to overturn his conviction based on junk science.
The Dallas County district attorney’s office has defended the conviction, telling the Supreme Court that Flores has not presented enough new information to satisfy the law’s requirements.
“Simply because Flores did not prevail does not mean he was not given the opportunity to be heard,” state attorneys wrote in its opposition brief.
Barganier’s initial descriptions of the suspects outside Black’s home matched Robert Childs, a Flores associate whose photo Barganier picked out of two separate lineups prior to the hypnosis session. Childs pleaded guilty to killing Black in 2000, after Flores’ trial, and was released on parole in 2016.
The Supreme Court will consider Flores’ petition at its Thursday conference. A decision on whether to act on his request could come as early as Monday.