The Texas Court of Criminal Appeals has grant­ed a stay of exe­cu­tion to Charles Flores (pic­tured) to per­mit him to lit­i­gate a claim that pros­e­cu­tors uncon­sti­tu­tion­al­ly con­vict­ed and sen­tenced him to death by using unre­li­able hyp­not­i­cal­ly refreshed tes­ti­mo­ny. Texas had sched­uled Flores’ exe­cu­tion for June 2. Flores, who is Latino, was con­vict­ed in 1999 of mur­der­ing a 64-year-old white woman in sub­ur­ban Dallas, and was sen­tenced to death. Prosecutors pre­sent­ed no phys­i­cal evi­dence link­ing Flores to the mur­der, and the sole wit­ness who claimed to have seen him at the scene was hyp­no­tized by police before iden­ti­fy­ing him. She ini­tial­ly told police she had seen two men in a car out­side of the vic­tim’s home, iden­ti­fy­ing the dri­ver, Richard Childs, in a police line­up and describ­ing the pas­sen­ger as a white man with shoul­der-length dark hair. However, when she appeared in court 13 months lat­er after hav­ing seen pho­tographs of Flores in news reports about the mur­der, she told pros­e­cu­tors that she now rec­og­nized Flores as the sec­ond man. According to an affi­davit Flores sub­mit­ted 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 the extant research on hyp­no­sis and mem­o­ry,” Lynn wrote. The Flores con­vic­tion and death sen­tence are also taint­ed with issues of race. Police charged both Childs and Flores with the mur­der. Childs, who is white, con­fessed to shoot­ing the vic­tim, 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. Flores, though admit­ting his involve­ment in the drug trade, pro­fessed his inno­cence of the mur­der and was tried and con­vict­ed. After his court-appoint­ed lawyers failed to present any wit­ness­es on his behalf in the penal­ty tri­al, the jury sen­tenced him to death. ​“So the white guy who was the trig­ger guy is out on parole, and the Hispanic guy, who was not the trig­ger man, is about to be put to death,” Greg Gardner, Flores’ cur­rent lawyer, told The Texas Tribune in an inter­view before the stay was issued. ​“It real­ly is just a mys­tery.” 178 of the 246 peo­ple on Texas’s death row as of May 2016 are black or Latino. 

(C. Tolan, ​“A court just stayed this Texas man’s exe­cu­tion because a wit­ness was hyp­no­tized,” Fusion, May 27, 2016; J. McCullough, ​“Texas Court Halts Execution in Dallas Murder,” The Texas Tribune, May 27, 2016; C. Tolan, ​“Meth, hyp­no­sis, and mur­der: An incred­i­ble true sto­ry of race and pun­ish­ment on Texas’ death row,” Fusion, May 10, 2016.) See Stays of Execution, Arbitrariness, and Race. Photo by Nathan Willis, pro­vid­ed cour­tesy of Fusion​.com.

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