Texas Appeals Court Declines to Apply Junk-Science Law to Review Death Sentence Based Upon Hypnotically Assisted Identification Testimony

The Texas Court of Criminal Appeals (TCCA) has upheld the rul­ing of a Dallas tri­al court that denied a new tri­al to death-row pris­on­er Charles Flores (pic­tured), whose con­vic­tion and death sen­tence were the prod­uct of hyp­not­i­cal­ly assist­ed tes­ti­mo­ny. The TCCA said its deci­sion was “[b]ased upon the tri­al court’s find­ings and con­clu­sions,” which the appeals court acknowl­edged had sim­ply ​“adopt­ed the State’s pro­posed find­ings of fact and con­clu­sions of law.”

No phys­i­cal evi­dence links Flores, a heavy­set Latino man, to the mur­der and, before hyp­no­sis, the wit­ness had described the sus­pect as a thin white man. That wit­ness’ hyp­not­i­cal­ly induced tes­ti­mo­ny is the only evi­dence link­ing Flores to the scene of the crime. ​“Take her out of the equa­tion and there wouldn’t have been a con­vic­tion,” said defense attor­ney Gretchen Sween at a 2017 hearing.

At least 21 states ban hyp­no­sis evi­dence. In Texas, at least 54 peo­ple have been con­vict­ed on the basis of hyp­no­sis since the mid-1970s. According to an inves­ti­ga­tion by the Dallas Morning News, five of those con­vic­tions have been reversed based at least in part on the use of hyp­no­sis. Four peo­ple con­vict­ed with hyp­not­i­cal­ly assist­ed wit­ness iden­ti­fi­ca­tions are cur­rent­ly on death row, and eleven oth­ers have been executed.

Flores had sought to chal­lenge the hyp­no­sis evi­dence under Texas’ ​“junk sci­ence” law, which allows pris­on­ers to present new sci­en­tif­ic evi­dence that con­tra­dicts evi­dence used in their case. Texas law­mak­er, Sen. Juan ​“Chuy” Hinojosa (D‑McAllen), who pro­posed a bill to bar the use of hyp­not­i­cal­ly induced tes­ti­mo­ny in Texas, said: ​“It is unfor­tu­nate that the court avoid­ed the key issue and did not weigh on the mer­its of the use of hyp­no­sis in [a] case where there is no cor­rob­o­rat­ing evi­dence to sup­port a con­vic­tion. 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.’”

The Texas Forensic Science Commission, which exam­ines the valid­i­ty of foren­sic meth­ods like bite mark and blood spat­ter analy­sis, lacks author­i­ty to eval­u­ate the use of hyp­no­sis because it is only tasked with exam­in­ing meth­ods that ana­lyze physical evidence.

Carlotta Lepingwell, deputy direc­tor of the Office of Capital and Forensic Writs, said of the lat­est rul­ing, ​“We were hop­ing that the Court would rec­og­nize that Mr. Flores’s con­vic­tion was irre­triev­ably taint­ed by the junk sci­ence of ​‘foren­sic hyp­no­sis, ’” but not­ed that the rul­ing is not the final word on the issue. ​“We don’t read the Court’s deci­sion … as weigh­ing in on the legit­i­ma­cy of hyp­no­sis,” she said, ​“and think it should not pre­clude future chal­lenges to the use of this junk sci­ence by law enforce­ment.”

Prosecutors did not allege that Flores was the actu­al killer. He was sen­tenced to death under the Texas ​“law of par­ties,” which sub­jects an accom­plice to the same crim­i­nal lia­bil­i­ty as the actu­al killer, whether or not he or she par­tic­i­pat­ed in the killing or intend­ed that a killing take place. Richard Lynn Childs, who plead­ed guilty to the killing, was sen­tenced to 35 years and was released on parole in 2016.

Hinojosa’s bill, which was intro­duced in response to Flores’ case, did not pass this ses­sion. He says he intends to rein­tro­duce it next session.