*Editor's note: This story has been updated throughout.
The execution of a man whose original trial included a hypnotized eyewitness was stopped by the Texas Court of Criminal Appeals Friday evening.
Charles Don Flores, 46, was convicted in the 1998 murder of 64-year-old Elizabeth “Betty” Black during a home burglary in a Dallas suburb. He was scheduled to die next Thursday after 17 years on death row.
In his latest appeal, filed to the state’s high court about two weeks ago, his attorneys argued that Flores should get a new trial because the linchpin of the state’s original case was based on the “fundamentally flawed” hypnosis of Black’s neighbor Jill Bargainer, who testified as an eyewitness in Flores' trial.
Flores’ lawyers brought in Dr. Steven Lynn, an expert on hypnosis and memory, to assess the techniques and reliability of the hypnosis.
“Lynn said the hypnosis was done horribly wrong ... and likely caused a false memory that identified Charles,” said Greg Gardner, Flores’ attorney.
The high court agreed to send the case back to the trial court and stayed the execution.
On the morning of Jan. 29, 1998, Bargainer saw two men enter Black’s house in Farmers Branch, according to court documents. She identified the driver as Richard Childs, who had recently become romantically involved with Black’s son’s common-law wife.
Bargainer couldn’t clearly identify the passenger at first, even after being shown pictures of Flores, according to Gardner. She asked to be hypnotized by police in an effort to help her remember.
The first time she identified Charles Flores as the passenger outside of Black’s house on the morning of her murder was on the witness stand. The jury was told Bargainer’s testimony was aided by hypnosis, and that jurors could disregard it if they thought it unreliable.
In the state’s attempt to dismiss the claims in Flores’ latest appeal, the Dallas County District Attorney’s office said Lynn’s claims are not new scientific evidence, which is needed for his appeal to be considered, and that the lack of Bargainer’s testimony wouldn’t mean he’d be found innocent.
“Contrary to Flores’ assertions, Bargainer’s identification was far from the only evidence linking him to this crime,” the motion said.
On the day of her murder, Black was found by her husband, dead from a single bullet wound, according to court documents. The couple’s dog was also shot and killed, although by a larger caliber bullet. Police found $39,000 in cash hidden in the bedroom closet.
The money was left behind by their son, Gary, who was then in prison for selling drugs, the documents state. The Blacks gave $500 a month to Gary Black's common-law wife, Jackie Roberts.
After Roberts, Childs and Flores bought some meth early in the morning of Jan. 29, Flores was upset, claiming he’d been shortchanged, according to the documents detailing Roberts’ testimony. She offered some money from the Blacks' house, and the two men later went to retrieve it.
It is unclear who shot Black during the attempted burglary. Both men were convicted in her murder.
When he was arrested, Childs was found with ammunition that matched the caliber of bullet that killed Black, and a gun found at his grandmother’s house was thought to be linked to evidence at the crime scene, according to the documents.
Childs pleaded guilty on a murder charge, not capital, and was recently released on parole after serving about 17 years of his 35-year sentence. Flores, on the other hand, was charged with capital murder and sentenced to death.
“So the white guy who was the trigger guy is out on parole, and the Hispanic guy, who was not the trigger man, is about to be put to death,” Gardner said in an interview hours before the stay was issued. “It really is just a mystery.”
The stay of execution was the second in the state this year. Six men have been executed in Texas this year.