Penn and Teller claim hypnosis ‘flam’ in death penalty case
Penn & Teller argued to the Supreme Court that junk science and investigative hypnosis, or “flim-flam,” tainted eyewitness evidence in murder cases.
WASHINGTON – The Supreme Court on June 15 rejected the high-profile appeal of a Texas death row inmate by magicians Penn & Teller.
Lawyers for Charles Flores, who was convicted of fatally shooting a suburban Dallas woman in 1998 during an attempted robbery of her home, had argued that his trial was “irreparably tainted by junk science and official misconduct.”
Police used “investigative hypnosis” on a key witness who said he saw Flores enter the woman’s home.
Penn & Teller filed a brief in support of Flores, telling the Supreme Court that as masters of perception manipulation, he has a duty to “expose flim-flam when he sees it.”
“Penn & Teller acknowledges that they are experts in magic, not law,” the lawyers wrote. “But they believe that something is fundamentally wrong with the justice system if law enforcement can use flimsy methods like investigative hypnosis to reconstruct the missing memories of key witnesses in executions.”
A neighbor of the murdered woman initially testified that she saw two white men with long hair enter the victim’s home. She couldn’t pick Flores, a short, shaved-headed Hispanic man, out of a photo lineup. And the computer-generated drawing she created looked nothing like him.
Flores’ lawyers argued that the witness was prompted to change his memory through a hypnosis session that included questions such as whether the man he witnessed had short, shaved, and clean-cut hair.
The witness said the man had long, dirty hair and was asked, “Is it neatly cut or trimmed?”
Near the end of the session, the officer told the witness, “The more time passes, the more you will remember these events.”
At a trial 13 months after Flores’ photo appeared in the news, a witness testified that he was “100 percent” sure he saw Flores enter the home.
Prosecutors argued that Flores had multiple opportunities to challenge his conviction.
Two weeks before Flores was scheduled to be executed in 2016, he was given an opportunity to raise new concerns about witness identification. After an evidentiary hearing, Flores was denied a new trial.
The Supreme Court also rejected Flores’ appeals in 2021 and 2022.
Prosecutors told the Supreme Court that Flores’ latest appeal “repackages and reasserts essentially the same claims.”
Flores’ lawyers countered that Flores was raising new information, including “a new consensus in scientific research on eyewitness memory.”
They noted that Texas passed a law in 2013 to help people prove that science, which has since been discredited, contributed to a wrongful conviction, but the state’s highest criminal court has ruled against every death row inmate who invoked that law.
“A Texas-sized due process problem exists that forces those sentenced to death like Mr. Flores to make credible claims of innocence,” his lawyers wrote to the court.
