Football, Death Row, and Hypnotized Witness Testimony: The Case of Charles Flores

Among the more than 100 mil­lion Americans watch­ing the Super Bowl on Sunday, Charles Flores (pic­tured) watched from a 9‑by-12-foot cell in Livingston, Texas, mark­ing his 27^th Super Bowl on death row for a crime he has main­tained he did not com­mit. In a pod­cast inter­view with Pablo Torre, a jour­nal­ist and sports­writer, Mr. Flores sat down at the Polunsky Unit in Livingston to dis­cuss his love of the Dallas Cowboys, watch­ing the Super Bowl on death row, the intri­ca­cies of his fight to prove his inno­cence, and how his con­vic­tion hinges on the use of a hyp­no­tized wit­ness.

In con­ver­sa­tion with Mr. Torre, Mr. Flores described what it means to fol­low foot­ball from soli­tary con­fine­ment, where he spends 23 hours a day in a cell. On game days, he stacks legal doc­u­ments from his decades-long case to cre­ate a makeshift stool, posi­tion­ing him­self close enough to see through the wire cutouts to a com­mu­nal tele­vi­sion mount­ed 30 feet down the hall. ​“When it’s third and 10 or what­ev­er, I get up,” Mr. Flores said. ​“I have to get as close as I can get.” Mr. Flores received access to his first tele­vi­sion in 2023, after 24 years with­out one. The first game he watched was the Super Bowl between Kansas City and Philadelphia. He described this expe­ri­ence as ​“amaz­ing” and spoke to Mr. Torre about how foot­ball serves a spe­cif­ic pur­pose beyond enter­tain­ment for pris­on­ers on death row: ​“When you’re sent to prison, you’re tak­en away from your peo­ple, your clan, from every­thing you know and love,” he said. ​“Being a fan — me being a Cowboy fan or the broth­ers back there being super hype about the Houston Texans — that’s their con­nec­tion to the free world. It’s not just them. It’s mom at home. It’s dad at home.”

Mr. Flores was con­vict­ed and sen­tenced to death in 1999 for the 1998 rob­bery and mur­der of Elizabeth ​“Betty” Black in her Texas home. He was con­vict­ed based on the tes­ti­mo­ny of Jill Barganier, one of Ms. Black’s neigh­bors, who only iden­ti­fied Mr. Flores after being hyp­no­tized by police — 13 months after the crime occurred. No DNA or phys­i­cal evi­dence ties Mr. Flores to the crime. The jury did not know that imme­di­ate­ly fol­low­ing the crime, Ms. Barganier described two indi­vid­u­als leav­ing a dis­tinct VW Bug and going into Ms. Black’s garage, nei­ther of whom look like Mr. Flores, and she failed to iden­ti­fy him in a pho­to line-up at that time. The first time she iden­ti­fied Mr. Flores was dur­ing tri­al, after she had gone through the inves­tiga­tive hyp­no­sis and had been exposed to Mr. Flores’ pho­to on multiple occasions.

At the time of the crime, Ms. Barganier iden­ti­fied Richard Childs out of a six-pho­to array. She was unable to iden­ti­fy the sec­ond indi­vid­ual, even after being shown images of Mr. Flores. Under hyp­no­sis by a police-employed hyp­no­tist, she repeat­ed her iden­ti­fi­ca­tion of the sec­ond man, char­ac­ter­iz­ing both indi­vid­u­als as white men with sim­i­lar builds and long hair. Mr. Flores did not match her descrip­tion — he is Hispanic and wore his hair shaved short — con­tra­dict­ing each of the iden­ti­fy­ing fac­tors brought to law enforcement’s atten­tion. Following the hyp­no­sis ses­sion, Ms. Barganier again failed to iden­ti­fy Mr. Flores in a pho­to-line­up of only Hispanic males, none of whom matched the descrip­tion she pro­vid­ed of the second individual.

Mr. Childs, whom police knew was involved in Ms. Black’s mur­der because of the dis­tinct VW he owned, con­fessed to shoot­ing Ms. Black, pled guilty and was sen­tenced to a term of 35 years with parole eli­gi­bil­i­ty after 17 years. He was released on parole in April 2016. At the time of tri­al, Mr. Childs’ plea deal had not been dis­closed to defense coun­sel, or the jury. Mr. Flores at the time admit­ted to his involve­ment in the drug trade but main­tained he was not involved in Ms. Black’s death. Under Texas’ law of par­ties, a per­son can be charged with cap­i­tal mur­der and sen­tenced to death if they par­tic­i­pat­ed in a felony that result­ed in a mur­der, even if they did not kill any­one them­selves. The law holds accom­plices equal­ly respon­si­ble as the per­son who com­mit­ted the killing. Mr. Flores was con­vict­ed under this statute as a know­ing par­tic­i­pant in the rob­bery and mur­der, but Mr. Flores denies being an accom­plice or present. He was only placed at the crime by Ms. Barganier’s mid-trial identification. 

In 2016, Mr. Flores came with­in five days of exe­cu­tion before his date was stayed by the Texas Court of Criminal Appeals (TCCA) to allow him to lit­i­gate a claim that pros­e­cu­tors uncon­sti­tu­tion­al­ly obtained his con­vic­tion through the use of unre­li­able hyp­not­i­cal­ly refreshed tes­ti­mo­ny. According to an affi­davit Mr. Flores sub­mit­ted to the court from psy­chol­o­gy pro­fes­sor Steven Lynn, research has linked ​“hyp­not­ic refresh­ment” with the cre­ation of false mem­o­ries. ​“Clearly, the tech­niques that were used to refresh [the witness’s] mem­o­ry would be eschewed today by any­one at all famil­iar with extant research on hyp­no­sis and mem­o­ry,” Prof. Lynn wrote. Mr. Flores learned about his stay of exe­cu­tion while lis­ten­ing to the same radio that he had lis­tened to foot­ball games on and told Mr. Torre that ​“it was sur­re­al.” Despite the evi­dence dis­cred­it­ing hyp­not­ic refresh­ment, the state court reject­ed Mr. Flores’ appeal in 2018, and in 2020, the TCCA upheld the ruling.

A 2020 Dallas Morning News inves­ti­ga­tion exam­ined the use of inves­tiga­tive hyp­no­sis in Texas, and report­ed that since the 1980s, the Texas Department of Public Safety used inves­tiga­tive hyp­no­sis in crim­i­nal inves­ti­ga­tions at least 1,700 times, lead­ing to prison sen­tences for dozens of peo­ple and death sen­tences for oth­ers. Experts iden­ti­fied for The News four con­cerns with the use of hyp­no­sis by Texas law enforce­ment in crim­i­nal inves­ti­ga­tions: sug­gestibil­i­ty affects sub­jects, crit­i­cal-think­ing abil­i­ties may dimin­ish, ​“con­fab­u­la­tion” occurs when sub­jects fill mem­o­ry gaps with fic­tion­al events, and fab­ri­cat­ed mem­o­ries can solid­i­fy through ​“mem­o­ry cemen­ta­tion” over time. On the heels of this report­ing, Texas Rangers (law enforce­ment) ceased using hyp­no­sis in inves­ti­ga­tions and law­mak­ers passed leg­is­la­tion in 2023 that ulti­mate­ly bans the use of hyp­no­sis-based tes­ti­mo­ny in crim­i­nal pro­ceed­ings. Mr. Flores did not obtain relief under this new law, as it does not apply retroac­tive­ly, despite state lead­ers’ acknowl­edge­ment of the unre­li­a­bil­i­ty of the tech­nique as evidence. 

In June 2025, coun­sel for Mr. Flores filed a motion argu­ing he should be grant­ed a new tri­al because of changes in the under­stand­ing of wit­ness tes­ti­mo­ny and changes in law regard­ing the use of hyp­no­tized wit­ness­es since 1999. Among the fil­ings were new expert dec­la­ra­tions that cast even fur­ther doubt on the integri­ty of Mr. Flores’ con­vic­tion. In October 2025, the peti­tion was dis­missed because the court con­sid­ered it pro­ce­du­ral­ly barred. The mer­its of Mr. Flores’ claims have still not been addressed. 

Mr. Flores has exhaust­ed all his manda­to­ry appeals and has peti­tioned the U.S. Supreme Court to take up his case. He told Mr. Torre, ​“I just want a fair review. I just want a fair shot.” Mr. Flores not­ed that the Dallas District Attorney’s Office has a Conviction Integrity Unit and­hopes that the unit will con­sid­er review­ing his case and actu­al innocence claim.