Masters of perception manipulation say they have a duty to expose the type of junk science allegedly used to convict a man of murder.
WASHINGTON – Magicians Penn and Teller say that as masters of manipulating perception, they have an obligation to “reveal flim-flam when they see it.”
And they told the Supreme Court that such deceptive nonsense was on display in the case of a Texas man sentenced to death for murder after a key witness was put under “investigative hypnosis” before trial.
The court is considering whether to hear the appeal of Charles Flores, who was convicted of fatally shooting a suburban Dallas woman in 1998 during an attempted burglary.
Flores’ lawyer said his trial was “irreparably tainted by junk science and official misconduct.”
Prosecutors have argued that Flores had multiple opportunities to challenge his conviction.
The Supreme Court refused to hear the earlier appeal.
His support from Penn & Teller will remain strong this time around, despite the Supreme Court refusing to intervene more than once and submissions from psychology experts making similar points about how memories can be tampered with.
In Flores’ case, a neighbor of the murdered woman initially said 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 claim the witness was prompted to change his memory through hypnosis sessions that included questions such as whether the man he witnessed had short, shaven, and clean-cut hair.
A 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 that passes, the more you will remember these events.”
At a trial 13 months later, after Flores’ photo appeared in the news, a witness testified that he “100%” saw Flores enter the home.
Investigative hypnosis called “flimflam”
In a legal brief supporting Flores, Penn & Teller said police used cognitive techniques similar to those used against witnesses to deceive audiences.
For example, a magician may pretend to shuffle a stacked deck of cards and then ask a member of the audience to shuffle the deck. The magician might then say, “We all shuffled the cards. You cut the cards.” This is a slight blur of the facts just enough for the participants to “remember” that everyone shuffled the cards.
“Penn & Teller acknowledges that they are experts in magic, not law,” lawyers wrote in a brief supporting Flores. “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.”
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.
Texas: Convicted murderer is reusing old claims
Prosecutors argue that Flores’ latest appeal “repackages and reasserts essentially the same allegations.”
Flores’ lawyers countered that he was bringing forward new information, including “a new consensus in scientific research on eyewitness memory.”
But while Texas passed a law in 2013 that allows people to prove that science, which has since been discredited, contributed to their wrongful conviction, the state’s highest criminal court has ruled against all death row inmates who invoked the 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.
The justices could decide whether to hear Flores’ appeal as early as June 15.
