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Recent research on eyewitness memory may be Texas death row inmate's last hope

A smiling bald man wearing glasses, a white shirt and a black watch stands with his arms crossed in front of a caged window.
David Martin Davies
/
Texas Public Radio
Charles Don Flores on Texas Death Row in 2021.

A California psychology professor says new research on memory suggests witness testimony casts doubt on the guilt of a Texas man on death row — long before the witness implicated him in a 1998 murder after being "hypnotized" by Farmers Branch police.

Scientific research for decades has concluded eyewitness testimony is unreliable and witnesses commonly make mistakes during the first test of their memory.

But University of California San Diego professor John Wixted said his and other research that has gained traction since 2020 suggests witness memories are the most accurate and reliable on a first memory test, especially when a witness is more confident in what they say they remember.

“This came as a shock to the field because this says that, actually, eyewitness memory is not inherently unreliable,” he said. “Just like every other kind of forensic evidence, there's conditions under which it's reliable and conditions under which it's unreliable, and you better figure out which applies when you're listening to an eyewitness.”

Wixted shared his research with roughly 30 people gathered for an educational forum at Southern Methodist University about Charles Don Flores, who was sentenced to death by a Dallas County jury in 1999 for the murder of Elizabeth “Betty” Black in her Farmers Branch home.

The 54-year-old, his attorneys and supporters have long argued Flores is innocent. He has now exhausted his state and federal appeals options, and his execution date is yet to be set.

Black’s neighbor Jill Barganier was a key eyewitness. She initially said she saw two men — both white, according to other witnesses, and at least one with long hair — getting out of a multicolored Volkswagen and walking toward Black’s home that morning. She later picked Richard Childs out of a photo lineup as the driver but did not initially identify Flores.

Police later put Barganier under forensic hypnosis — a process of obtaining testimony that’s been scrutinized for decades and is now inadmissible as evidence in criminal trials in Texas. She then identified Flores — who is Hispanic, had short hair, and described himself as always being "big" in an interview with Texas Public Radio — as the passenger in the car at the crime scene at his trial.

But Wixted said Barganier’s initial identification of the two men who entered Black’s home was most likely correct, and the fact that she did not identify Flores at first points to his innocence.

“We're not just impeaching the witness' testimony,” Wixted said. “We're talking about new, substantive evidence of innocence that was never considered by anybody, and now he's out of appeals and heading for execution.”

A man stands at a podium to the left of a projector screen that reads "Subsequent Memory Contamination" and has a picture of a newspaper clipping below it.
Toluwani Osibamowo
/
KERA
UC San Diego professor John Wixted presents research on eyewitness memory at a forum at Southern Methodist University in Dallas on April 18, 2024. Wixted said initial testimony from an eyewitness in the 1998 murder of Betty Black may point to the innocence of Charles Don Flores, who is on death row for the murder.

Even further, Wixted said testing Barganier’s memory and presenting Flores as a possible suspect — even though he didn’t match her description — only served to taint her memory. He said this builds on previous arguments that police hypnosis is a flawed practice, including a Dallas Morning News investigation into other criminal cases where it’s been used.

Holly Bowen, an assistant professor of psychology at SMU, explained there are several myths about how human memory works. Memory isn’t static and thorough like a recording device. It’s flawed and malleable, and current goals, motivations and knowledge can easily shape what people remember, she said.

“Eyewitnesses want to be helpful, so imagine how frustrating it is to continually be questioned about a memory that you just don't have,” she said. “Victims want, you know, justice. They want closure. And I think the evidence indicates that this combination of things can really lead to the creation of false memories.”

Miguel Solorio was recently exonerated based on Wixted’s research. He was convicted in a 1998 drive-by shooting murder in Whittier, California and sentenced to life without parole in 2000. Among other things, Wixted, Solorio’s lawyer Ellen Eggers and advocates pointed out that witnesses initially didn’t identify Solorio in an array of suspect photos police showed them.

A judge agreed and exonerated Solorio November 2023.

“I know there are many other innocent people in prison who were not identified from the first lineup,” Solorio said. “Their cases deserve to be reviewed.”

Childs, the other suspect in Black’s murder, pleaded guilty to shooting the woman as part of a plea bargain after Flores' conviction. Childs, who got out on parole in 2016 after serving less than half his sentence, is white.

“I think there's a specter of racism in here that has to be emphasized,” said Gretchen Sween, Flores’ attorney. “They wanted the bad guy to be this unaffiliated Hispanic guy who lives in a trailer park in Irving who had drug issues, and who their likely informant, Richard Childs, was trying to ensnare in a drug deal.”

An execution date was set for Flores in 2016, but the Texas Court of Criminal Appeals stayed his execution after his attorneys challenged the use of hypnosis. In May 2020, the court upheld a Dallas court’s ruling that Flores couldn’t contest his conviction under the state’s junk science law and denied Flores a new trial. The U.S. Supreme Court declined to look at Flores’ case in 2021.

Senate Bill 338, which took effect in September 2023, makes witness statements obtained through police hypnosis inadmissible in criminal trials, but it cannot apply to Flores’ case, Sween said.

Wixted said he has attempted to reach out to Dallas County District Attorney John Creuzot’s office to talk about the case, but that meeting hasn’t happened. Creuzot’s office has exonerated people as recently as last year.

A spokesperson for the DA’s office said in an email the DA does not set execution dates and the office has given Flores' team "everything they have requested and more than they are entitled to," declining to comment further on the case.

Sween said a new trial with consideration for this new research is all she’s asking for.

“It's a terrible miscarriage of justice,” she said. “The courts have so far been slamming the doors. All we want is a chance to let science into the room and not this tale of corruption and, you know, horrible misrepresentation of how human memory actually works.”

Got a tip? Email Toluwani Osibamowo at tosibamowo@kera.org. You can follow Toluwani on X @tosibamowo.

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Toluwani Osibamowo is a general assignments reporter for KERA. She previously worked as a news intern for Texas Tech Public Media and copy editor for Texas Tech University’s student newspaper, The Daily Toreador, before graduating with a bachelor’s degree in journalism. She is originally from Plano.