WASHINGTON 鈭 As master manipulators of perception, magicians Penn & Teller say they have an obligation to 鈥渆xpose flimflam when they see it.鈥
And they鈥檝e told the Supreme Court in a filing they see such deceptive nonsense in the case of a Texas man facing a death sentence for murder after 鈥渋nvestigative hypnosis鈥 was used on a key witness before his trial.
The court is considering whether to hear an appeal from Charles Flores who was found guilty of shooting a suburban Dallas woman in 1998 during an attempted robbery of her home.
Flores鈥 lawyers say his trial was 鈥渋rreparably tainted by junk science and official misconduct.鈥
Prosecutors argue Flores has had multiple chances to challenge his conviction.
Magicians Penn & Teller in a 2015 photo.
Supreme Court declined to hear previous appeals
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The Supreme Court has more than once declined to get involved and his support from Penn & Teller may not sway them this time 鈥 even though a filing from psychology experts makes similar points about how memory can be tampered with.
In Flores' case, a neighbor of the murdered woman initially described seeing two White men with long hair go into the victim鈥檚 home. She failed to pick Flores 鈥 a Hispanic man who had short, shaved hair 鈥 out of a photo lineup. And the composite computer drawing she produced did not resemble him.
Flores鈥 lawyers argue that the witness was then primed to change her memory through a hypnosis session that included such questions as whether the hair of the man she saw was short, shaved and neatly cut.
鈥淒oes he have it neatly cut or is it trimmed,鈥 the witness was asked of the man she had said had long, dirty hair.
Near the end of the session, the officer told the witness she would 鈥渂e able to recall more of these events as time goes on.鈥
At the trial 13 months later, after Flores' photograph had appeared in news stories, the witness testified that she was 鈥100%鈥 sure she saw Flores go into the house.
Investigative hypnosis called 'flimflam'
In their legal brief supporting Flores, Penn & Teller said they鈥檝e tricked audiences with cognitive techniques similar to what the police used on the witness.
After pretending to shuffle a deck of stacked cards, for example, a magician may ask members of the audience to cut the deck. Then the magician may say, 鈥淲e all shuffled the cards, you cut them,鈥 鈥 a slight shading of the facts that can be enough for participants to 鈥渞emember鈥 that everyone shuffled the cards.
鈥淧enn & Teller acknowledge that they are experts in magic, not law,鈥 their lawyer wrote in the brief supporting Flores. 鈥淏ut they believe there is something fundamentally amiss in the justice system if flimflam like investigative hypnosis can be used by law enforcement to reconfigure the gap-laden memory of a key witness in a capital prosecution.鈥
Two weeks before Flores was scheduled to be executed in 2016, he was given a chance to raise new concerns about the witnesses鈥 identification of him. After an evidentiary hearing, Flores was denied a new trial.
The Supreme Court declined to hear appeals from Flores in 2021 and again in 2022.
Texas: Convicted murderer is recycling old arguments
Prosecutors argue that Flores鈥 latest appeal 鈥渆ssentially repackaged and reasserted the same claims.鈥
Flores鈥 attorneys counter that he鈥檚 raising new information, including a 鈥渘ew consensus in the scientific study of eyewitness memory.鈥
But while Texas passed a law in 2013 to help people show that since-discredited science contributed to their wrongful convictions, the state鈥檚 highest criminal court has ruled against every death sentence prisoner who has invoked that law.
鈥淭here is a Texas-sized due process problem burdening death-sentenced individuals like Flores with credible claims of innocence,鈥 his attorneys wrote to the court.
The justices could decide as early as June 15 whether they will hear Flores' appeal.
