PASSAGE OF THE DAY: Gretchen Sween, an attorney representing Flores, said that he was framed and that he's innocent. Now 56, Flores is locked up on death row at Allan B. Polunsky Unit in Livingston, Texas.
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PASSAGE TWO OF THE DAY: "Memory manipulation is one of several ways a witness may come to believe they remember events that never occurred, or recall a suspect's appearance in ways that align with an investigative theory. Hypnosis fits within that practice. Famed magicians Penn & Teller filed an amicus brief in the Flores case on March 12, arguing that the forensic hypnosis used in the investigation relied on the same principles underlying their sleight-of-hand tricks. "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," the duo said in the brief, filed by co-directors of the University of Texas School of Law's Supreme Court Litigation Clinic. "But the same suggestion-based memory manipulation was also on display in the investigative hypnosis of Mrs. Barganier."
STORY: "The Hypnosis That Helped Send A Man To Death Row," by Senior Reporter Marco Poggio, published by Law360, on March 20, 2026.
GIST: "Sitting on a chair with her eyes closed, Jill Barganier was told to relax and let her imagination break free.
In a calm voice, a man seated nearby guided her to picture herself walking barefoot along a plush yellow carpet toward an elevator at the end of a hallway.
"I want you to imagine, in your mind's eye, taking one step closer to that elevator door," he said. "Let's just take a step inside."
The man asked her to picture the elevator slowly descending and opening into an empty movie theater that had the power of taking her back in time.
"This is your very own special theater," he said. "The theater can be decorated anyway you like."
He then told her to press an imaginary play button and return to the early morning of Jan. 29, 1998.
This is how Barganier found herself under hypnosis to describe the moments before her next-door neighbor, Betty Black, was shot and killed in her home during an attempted robbery in Farmers Branch, a suburb north of Dallas.
During the hypnosis session, conducted by a patrol police officer with no prior hypnosis experience, Barganier described two white men getting out of a Volkswagen Beetle parked in the Blacks' driveway that morning.
She said the driver had long, wavy hair, blue eyes and an oval face. The passenger, she recalled, had brown eyes and shoulder-length dark hair. Those descriptions largely matched the ones Barganier gave immediately after the murder, as well as accounts from other neighbors interviewed during the initial police canvass.
On two separate occasions early in the investigation, Barganier identified Richard Lynn Childs — a white man with blue eyes who was dating Jackie Roberts, the estranged partner of the victim's son — as the Volkswagen's driver in a lineup. She was also shown a photo of Charles Don Flores — an overweight Latino man with short, shaved hair — but failed to identify him while her memory was still fresh.
So how did she take the stand 13 months later and testify that Flores was the one she saw that morning?
In 2000, Childs admitted to killing Black and was sentenced to 35 years in prison. He was later released on parole in 2016.
Flores was charged under Texas' "law of parties," a theory of liability that applies when a person intentionally promotes or assists another in committing any felony, making them responsible for that felony and any foreseeable crimes committed by the main perpetrator.
He was convicted and sentenced to death in a prosecution where no physical evidence — ballistic, DNA or fingerprints — tied him to the crime scene, and in which Barganier was the state's star witness. His jury never saw the hypnosis session, which was recorded, and never heard about the descriptions she gave of the suspects.
In 2023, Texas barred the use of testimony obtained during or after hypnosis, changing existing case law, but the ban did not apply retroactively and therefore did not apply to Flores.
Gretchen Sween, an attorney representing Flores, said that he was framed and that he's innocent. Now 56, Flores is locked up on death row at Allan B. Polunsky Unit in Livingston, Texas.
In a petition to the U.S. Supreme Court filed Feb. 6, Sween asked the justices to intervene, arguing that the Texas Court of Criminal Appeals, or TCCA, which has repeatedly denied Flores relief under state habeas law, violated his due process rights under federal law by shutting down his innocence claims without explanation.
"Flores submitted a mountain of evidence to the TCCA seeking the right to prove that he is in fact innocent of the crime for which Texas seeks to execute him. But the TCCA has repeatedly and arbitrarily barred these efforts without explanation, nullifying the state-created liberty interest upon which he seeks to rely," the certiorari petition said. "The brazen manipulation of a key witness was just one component of a host of long-concealed misconduct by state actors, designed to push responsibility for a crime perpetrated by the son of a local police officer, heavily involved in narcotics, onto Flores, an unconnected drug user living in a trailer."
Sween asked the TCCA in a state habeas petition in June 2025 to grant Flores a new trial, or at least a chance to lay out his case at a hearing. Sween argued the case against Flores was based on a contaminated memory, flawed eyewitness identification and police misconduct.
"There is a need for a reasoned decision from this Court about the current status of 'investigative hypnosis' under Texas law and the larger issue of the consensus scientific opinion regarding the reliability of eyewitness identifications more generally," Sween said in that petition.
In the certiorari petition to the U.S. Supreme Court last month, Sween argued Texas' top court kept Flores from getting relief under the junk science statute, codified in state law as Article 11.073, on three different occasions. To date, no death row inmate has won a new trial by invoking the law.
"In adopting Article 11.073, Texas gave prisoners the right to establish that a wrongful conviction was obtained using subsequently discredited scientific evidence. In Flores's case and many others, the TCCA has nullified these state-created vehicles by gratuitously barring credibly innocent prisoners on death row from proving their innocence," the cert petition said.
The Texas Attorney General's Office and the Dallas County District Attorney's Office declined to comment.
According to the National Registry of Exonerations, at least 37 people who have been exonerated since 1989 were convicted in criminal cases involving witnesses under hypnosis.
One of them, Dale Johnston, was sentenced to death in 1984 in Ohio after a witness underwent hypnosis and later claimed to remember seeing him force his stepdaughter into a car, testimony that helped secure his murder conviction. An appeals court later ruled the hypnotically enhanced evidence should not have been admitted, and Johnston was exonerated in 1990 after the real killers were identified.
In Virginia, Edward Honaker was convicted in 1984 and sentenced to three life terms after a victim who initially said she could not clearly see her attacker identified him following hypnosis. DNA testing cleared him in 1994.
Another exoneree, Clarence Moore, was convicted in 1986 in Pennsylvania after his accuser, who initially said she could barely see her attacker, identified him following hypnosis. He spent 19 years in prison.
Those cases reflect what researchers began to understand about hypnosis decades ago.
Mounting Exonerations Expose Flaws of Forensic Hypnosis
Cases involving hypnosis — including some where witnesses were hypnotized — have raised concerns about the technique's potential to distort memory and contribute to unreliable testimony. In some cases, hypnosis was requested but not conducted.
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Hypnosis and Contaminated Memory
Investigative hypnosis dates back to the 1950s, when it began being used to refresh a witness's memory, assess a defendant's psychological condition, gauge credibility and prepare witnesses to testify.
Psychiatrists Alan W. Newman and John W. Thompson said in a 2001 paper titled "The Rise and Fall of Forensic Hypnosis in Criminal Investigation" that the "abuse" of the practice during the 1960s and 1970s, decades in which its popularity peaked, led to exclusions of testimony from court proceedings later on.
The use of hypnosis waned in the 1990s, but in its heyday, it had become an integral part of the investigative process. According to Newman's and Thompson's paper, studies from the Los Angeles Police Department and the New York Police Department from the late 1970s suggested that hypnosis provided valuable new information over 65% of the time.
Advocates of hypnosis in criminal investigations said that it would help witnesses recall important facts related to crimes. The rationale was that the ability of people to remember traumatic events — as in the case of a person witnessing a killing — may be impaired by stress and anxiety, or even terror, and that hypnosis could help a witness relax. Another rationale was that it could assist witnesses in recovering memories repressed by trauma.
Those claims about hypnosis came to be known as the "videotape model," a theory that views memory as storage holding information permanently, which can be accessed going back in rewind. It also holds that new information can coexist with the original memories without altering them.
But later, consensus grew among researchers that memory acts as an active, creative process that assembles fragments of past experiences combined with present knowledge, beliefs and emotions. That "constructive model," which has overwhelmingly supplanted the "recording" model within cognitive psychology and neuroscience, says that memories are subject to possible alterations.
There are well-documented investigative practices in which police pressure or flawed methods can steer witnesses toward particular answers, sometimes producing confident but inaccurate testimony. Courts, psychologists and innocence advocates have spent decades studying such practices, warning that investigations can unintentionally drift toward confirming a theory rather than discovering the truth.
Suggestive lineups and identification procedures, for instance, are known to produce erroneous identifications. Mistaken eyewitness testimony is one of the leading causes of wrongful convictions, according to the Innocence Project. Likewise, leading or coercive interviews can implant false memories in witnesses, who may later repeat those recollections with confidence, believing them to be accurate.
Memory manipulation is one of several ways a witness may come to believe they remember events that never occurred, or recall a suspect's appearance in ways that align with an investigative theory. Hypnosis fits within that practice.
Famed magicians Penn & Teller filed an amicus brief in the Flores case on March 12, arguing that the forensic hypnosis used in the investigation relied on the same principles underlying their sleight-of-hand tricks.
"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," the duo said in the brief, filed by co-directors of the University of Texas School of Law's Supreme Court Litigation Clinic. "But the same suggestion-based memory manipulation was also on display in the investigative hypnosis of Mrs. Barganier."
Newman and Thompson said the risk of memory contamination is high when the hypnotist is the investigator and is aware of the details of a criminal case.
Because of scarce documentation of its use, it is hard to gauge how often hypnosis has been used to elicit information from witnesses in criminal prosecution, whether in Texas or nationally.
In 2015, the U.S. Department of Justice said in a manual that hypnosis is "subject to serious objections and thus should be used only on rare occasions."
News reports in recent years have uncovered widespread use of the practice by Texas Rangers, a state law enforcement division that investigates violent crimes. According to an investigation by The Dallas Morning News, the Rangers alone have hypnotized at least 1,700 witnesses from 1980 until 2021, when the division said publicly that it would stop using the method. The controversy arising from those reports helped fuel legislative scrutiny that led to the ban on the practice in the state.
From the First Memories to a Mid-Trial Identification
In the immediate aftermath of Black's killing, suspicion initially centered on Childs, a drug dealer with an addiction problem whose father was a local police officer.
But as investigators looked further into the case, their attention shifted. Childs had ties to the local drug scene, and through those connections police learned he knew Flores. The two had met years earlier when Childs lived across the street from Flores' parents.
Flores, who acknowledged knowing Childs and being involved with drugs at the time, was drawn into the investigation after Childs abandoned the Volkswagen at Flores' trailer home in Irving, Texas, in the days after the murder.
Sween said that when police began searching for the car, Flores panicked. His habeas petition said he tried to burn the vehicle and later attempted to escape custody. Prosecutors cited those actions as evidence of guilt.
Over time, detectives' theory switched from Childs as the primary suspect to Flores as the main culprit in a robbery plot. On the day of the murder, narcotics cops had found $39,000 in cash hidden in the Blacks' house, which fueled the theory that intruders in Black's home were looking for drug money.
At trial, prosecutors argued Flores shot Black with a .380 pistol. His jury never heard about Childs' plea deal.
In the state habeas petition, Sween said police planted images of Flores' appearances into Barganier's memory during her hypnotic session by asking her leading questions.
"Is his hair short? Is it shaved? Is it neatly cut?" the hypnotist officer asked Barganier about the driver, the video of the session shows. He then asked her whether the other person had "neatly cut, neatly trimmed hair." In both cases, Barganier shook her head and said no.
At the end of the session, the officer who hypnotized Barganier told her she might be "able to recall other things as time goes along."
Sween said that is exactly what happened. She said the suggestions the investigators introduced in Barganier's memory during the session were reinforced in the months that followed as she continued to be exposed to images of Flores, who by then had been widely publicized in local media.
"We now really see that hypnotizing eyewitnesses is about manipulating memory, not recovering memory," she said.
At trial, Barganier told the jurors, who never heard about her hypnosis, about "locking eyes" with the Volkswagen's passenger — a detail she had never offered before — whom at that point she was convinced was Flores.
"In seeing this person here today in court, can you tell the court how sure you are that is him?" she was asked on direct examination.
She replied, "100%."
Flores' Junk Science Claims
Sween raised the issue of Barganier's hypnosis under the Texas junk science statute before, to no avail. In May 2020, the Texas Court of Criminal Appeals rejected those claims without explanation.
Then, in October 2021, the same court rejected a habeas petition filed by Flores on procedural grounds without reaching the merits of his claims. Last May, the Texas Attorney General's Office sent a letter to the trial court asking for an execution date for Flores.
In the habeas petition filed last year, Sween argued that "new evidence of a scientific change has emerged" since Flores' last habeas bid.
The state habeas petition centered heavily on the opinion of John Wixted, a professor of psychology at University of California, San Diego, who concluded in his declaration that the only scientifically relevant eyewitness identification evidence points strongly in the direction of Flores' innocence.
"The most reliable memory-based evidence comes from the first test of the witness's memory conducted early in a police investigation," Wixted wrote in his declaration, citing a 2020 consensus statement commissioned by the American Psychology-Law Society.
"The first test is the only uncontaminated test of memory. All later tests, including the one that occurs at trial, involve tests of contaminated forensic memory evidence."
He concluded that the outcome of the first test of Barganier's memory using a photo array, in which she excluded Flores, "provides clear evidence that Flores is innocent."
In the petition for certiorari to the U.S. Supreme Court, Sween told the justices that Article 11.073 required Flores to prove by only a preponderance of evidence that, had a jury heard about the change in scientific understanding, he would not have been convicted.
"This case and the question it presents are exceptionally important," the petition said. "The Court should grant the petition to clarify how the unreasonable deprivation of a state-created liberty interest can violate the federal right to due process, particularly when the case involves a credible claim of innocence and a death sentence."
the-hypnosis-that-helped-send-a-man-to-death-row-
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog.
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."Lawyer Radha Natarajan: Executive Director: New England Innocence Project;
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!Christina Swarns: Executive Director: The Innocence Project;
