Two Vegas headliners are trying to make something disappear: a death row conviction they say hinges on a trick, not science. Writing for the New York Times, legal correspondent Adam Liptak details how magicians Penn & Teller have filed a friend-of-the-court brief urging the US Supreme Court to hear the case of Charles Don Flores, a Texas inmate sentenced to die largely on the strength of a witness ID that shifted after "investigative hypnosis" by a police officer who'd never hypnotized anyone before.
Liptak lays out how the witness, reported by Slate to be a neighbor, initially described two long-haired white men and failed to pick Flores—a stocky Hispanic man with short hair—from a photo lineup, only to later identify him in court with absolute certainty after a hypnosis session built on the discredited idea that memory works like a mental videotape, per the Times. "The myth that memory is a video recording playing in a private theater in your brain is one of the biggest lies about hypnosis," Penn & Teller note in their brief.
Most states, including Texas now, bar such testimony, but the ban doesn't apply retroactively. Flores is instead leaning on a newer Texas law allowing challenges based on debunked forensic methods, a route no condemned inmate has yet won on. Penn Jillette, one half of the magician duo, doesn't think Flores got a fair shake based on the hypnosis evidence, even though he tells CNN that he's not proclaiming either way that Flores is innocent or guilty. "The way they got the evidence was about the level of seriousness of a Las Vegas goofball magician," the 71-year-old tells the Times. "I do that every night in my show, and I've done it for 50 years."
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