A death row inmate is getting a surprising ally in the fight to have the Supreme Court grant him a new trial: legendary magician duo Penn & Teller.
The masters of illusion, who have often used their expertise to debunk misinformation, filed an amicus brief in support of the justices reviewing the 1999 capital conviction of Charles Don Flores, who was found guilty of murdering 64-year-old Elizabeth Black in Farmers Branch, Texas.
In 1998, Black’s husband came home to find her dead and the house torn apart in a robbery gone bad, and neighbors reported seeing two men arrive at the house in a Volkswagen Beetle with psychedelic colors around the time of the murder.
The conviction has long been controversial; Flores did not match the description of the accomplice, had an alibi, and another person ultimately confessed to the murder. However, he was convicted partially on the testimony of Jill Bargainer, the victim’s neighbor, who had given the information after police performed hypnosis on her.
In their amicus brief to the Supreme Court urging for a new trial, flagged by legal observer John Ellwood, Penn & Teller explained that the techniques police used to get the witness identification are the same as what they themselves use to fool the audience in their illusion shows.
“Penn & Teller’s tricks rely on knowing how memory works,” stated the brief. “And — contrary to what an officer-hypnotist told the prosecution’s key witness in Mr. Flores’s case — it does not work like a video recorder. The brain ‘just can’t go back and try again’ … Suggesting otherwise is not only bunk but dangerous.”
“The myth that memory is a video recording playing in a private theater in your brain is one of the biggest lies about hypnosis,” the brief continued. “And reliance on that falsehood can inflict serious harm — particularly when hypnosis is presented as a memory- recovery tool or an investigative technique for law enforcement, as it was to key witness Mrs. Barganier in Mr. Flores’s case.”
In recent years, death row inmates have had an especially uphill battle at the Supreme Court, with the justices frequently refusing to review even cases with significant problems.
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