A Texas man sentenced to death row with the help of “hypnotized” witness testimony is asking a Dallas County judge not to set his execution date as his attorneys try to prove he was wrongfully convicted with junk science.
The move from Charles Don Flores’ attorneys comes in response to the Texas Attorney General’s Office request that a Dallas judge set an execution date for Flores in a letter Monday. Tomee Heining, chief of the AG’s Criminal Appeals Division, offered several dates in November as available for Flores’ execution.
Attorneys for Flores say the move is unlawful. They’re asking Garza not to act as they attempt to get a new trial for Flores in light of evidence and a state law they say prove his innocence.
“Instead of a long-overdue new trial, the Attorney General seems to believe it would be more convenient to kill Charles Flores,” said Gretchen Sween, Flores’ post-conviction attorney, in a statement. “Texans cannot stand by while their government willfully abuses its power like this. No Texan benefits from our State being known as a ‘leader’ in executing individuals with substantial innocence claims.”
A Dallas County jury sentenced Flores to death in 1999 for the murder of Elizabeth “Betty” Black in her Farmers Branch home. Key eyewitness Jill Barganier, Black’s neighbor, initially told police she saw two men — who other witnesses said were both white, and the passenger had long hair — getting out of a multicolored Volkswagen and walking toward Black’s home that morning.
She later picked Richard Childs — who is white — out of a photo lineup as the driver but did not initially identify Flores. Then Farmers Branch police put Barganier under forensic hypnosis, as shown in a video obtained by Texas Public Radio, a method long scrutinized as unreliable in obtaining testimony.
A year later at trial, Barganier identified Flores, who’s Hispanic and had short hair, as the passenger in the car at the crime scene. Childs, the other suspect, pleaded guilty to shooting the woman as part of a plea bargain after Flores' conviction. Childs got out on parole in 2016 after serving less than half his sentence.
A University of California San Diego psychology professor presented recent research on memory at an event in Dallas last year he said casts doubt on Barganier’s later testimony. John Wixted and others’ research suggests witnesses’ memories are most accurate and reliable the first time police test them, especially when a witness is more confident about what they say they remember.
Memory isn’t static and thorough like a recording device, Southern Methodist University psychology professor Holly Bowen said at the Dallas event. Current goals, motivations and knowledge can easily shape what people remember, she said — like police questioning.
“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.”
Flores has now exhausted his state and federal appeals options. He was set to die in 2016, but the state’s highest criminal court stayed his execution after his attorneys challenged the use of hypnosis.
In May 2020, the Texas Court of Criminal Appeals 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.
In that time, Texas lawmakers passed a 2023 law inspired in part by Flores’ case making testimony using police hypnosis inadmissible in criminal trials. At least 21 states have done the same, and the Texas Rangers also stopped using it after a Dallas Morning News investigation into the practice.
But the law can’t apply retroactively to Flores’ case. It’s why his attorneys are still trying to find a way to make the case for his innocence with evidence they say is “imminent.”
Dallas County District Attorney John Creuzot’s office can ask Garza to set an execution date but doesn’t have the power to set one itself. The AG’s letter states if Creuzot’s office isn’t willing to participate in Flores’ proceedings, the AG is willing to represent the state for the time being, upon the DA’s request.
A spokesperson for Creuzot's office did not immediately respond to a request for comment on the newest filings in Flores’ case. The spokesperson told KERA News last year the office has given Flores’ team “everything they have requested and more than they are entitled to” and declined to comment further on the case.
Got a tip? Email Toluwani Osibamowo at tosibamowo@kera.org. You can follow Toluwani on X @tosibamowo.
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