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SAVE Charles Don Flores, Texas
Who is Charles Don Flores?
Charles Don Flores was born on October 31, 1969, in Bigspring, Texas, where is father worked operating the family roofing and construction business. A year alter, the family moved to Midland, Texas. Charles lived there until he was 16 years of age. His family then moved to Dallas, Texas, where they still live.
When I was a teenager, I began working with my father during the summer school break where I learned the roofing and construction trade. I also worked with my brother and learned commercial metal stud framing and drywall trade. From a young age, I found that I enjoyed building things with my hands. I then began learning the administrative process of running a construction business, then I worked as a salesman and finally the general manager of the family business. I have always worked my whole life."
A collaboration SAVE Innocents - Bernard de la Villardière for Enquête Exclusive, M6, September 2015
Case summary
In 1999, Charles FLORES was convicted of capital murder and sentenced to death. He was accused of the January 29, 1998 murder of a Farmers Branch grandmother Elizabeth Black. Richard Childs was also indicted for Mrs. Black’s murder, but was later re-indicted for a lesser offense and ultimately received a plea bargain. Childs is now out on parole.
Charles Flores maintains his complete innocence. At time of the crime, he was at home with family and friends. Charles Don Flores maintains he was an hour’s drive away from the crime scene and has witnesses to testify of his whereabouts at the time of the murder.
Police detectives investigating the crime faced several obstacles, including a lack of physical evidence and unreliable witnesses. Aside from a few neighbors, the State’s trial witnesses where heavily involved in dealing and using drugs. The murder weapon was never found. A .380 revolver owned by Mr. Flores was positively excluded as the murder weapon. No DNA or other physical evidence linked Flores to the crime scene.
One of the neighbors, Jill Barganier, told police that she had seen two white men with long hair get out of a VW bug on the Blacks’ driveway around 6:45 am at around the time of the homicide. She soon identified Childs as the driver of the VW bug, buy could not identify the passenger. Several days after the crime, Ms. Barganier asked a detective if she could be hypnotized so that she might be able to relax and then recall more about what she had observed.
Ms. Barganier was hypnotized by one of the officers involved in investigating the crime scene. During the session, the officer repeatedly told Ms. Barganier that she “might find [her]self being able to recall other things as time moves on” and that it was “not uncommon to just remember something after the fact, after the session”. She was even told “you’ll remember more as time goes by”’. After the session, Ms. Barganier did a composite sketch of the passenger and depicted a white male with shoulder-length hair – an image that looked nothing like Flores, who is overweight, Latino, with close-cropped hair.
Police detectives, however, began to show Ms. Barganier photo lineups of Hispanic men with short hair that included Mr. Flores: Ms. Barganier, however, did not pick Flores out of the photo lineups.
Throughout the next few months, the case was frequently on the news, and many stories about it featured a photo of Flores, including the same mug shot that Ms. Barganier had been shown at the police station following the hypnosis session. By the time of trial, Ms. Barganier, had been repeatedly exposed to images of Flores’s face. When Ms. Barganier was called as a witness at trial, which took place over a year after the crime, suddenly, after seeing Mr. Flores in the courtroom, she claimed that she was “more than 100 percent” positive that Mr. Flores was the passenger she had glimpsed getting out of the VW bug early on the morning of January 29, 1998.
Stay of execution
In 2016, Charles Flores received an execution date, which was stayed. Flores raised a challenge to the hypnosis-tainted identification procedure in his case under the new junk science writ, Article 11.073. The Court of Criminal Appeals issued a stay of execution in his case, and remanded for an evidentiary hearing. At issue in the evidentiary hearing is whether the testimony of the State’s expert about the reliability of the hypnotized witness’s identification conflicts with the current scientific understanding of hypnosis and eyewitness memory.
Current Status/Procedural posture
Approximately ten months after the hearing concluded, the District adopted the State’s proposed findings of fact and conclusions of law nearly verbatim. These FFCL find that post-hypnotic identification is reliable and consistent with the modern science of eyewitness identification, and that there was sufficient proof of Mr. Flores’ guilt without the post-hypnotic identification. The case is now before the Court of Criminal Appeals, and that Court will decide whether Mr. Flores is entitled to a new trial.
The national Innocence Project recently filed an amicus brief in this case. In their brief, the Innocence Project asked the Court of Criminal Appeals to reject the findings below and grant relief in this case of the following reasons:
To see the Innocent Project’s amicus brief and Objections to District Judge’s Recommendations to Deny Relief, go to www.charlesdflores.com
In 1999, Charles FLORES was convicted of capital murder and sentenced to death. He was accused of the January 29, 1998 murder of a Farmers Branch grandmother Elizabeth Black. Richard Childs was also indicted for Mrs. Black’s murder, but was later re-indicted for a lesser offense and ultimately received a plea bargain. Childs is now out on parole.
Charles Flores maintains his complete innocence. At time of the crime, he was at home with family and friends. Charles Don Flores maintains he was an hour’s drive away from the crime scene and has witnesses to testify of his whereabouts at the time of the murder.
Police detectives investigating the crime faced several obstacles, including a lack of physical evidence and unreliable witnesses. Aside from a few neighbors, the State’s trial witnesses where heavily involved in dealing and using drugs. The murder weapon was never found. A .380 revolver owned by Mr. Flores was positively excluded as the murder weapon. No DNA or other physical evidence linked Flores to the crime scene.
One of the neighbors, Jill Barganier, told police that she had seen two white men with long hair get out of a VW bug on the Blacks’ driveway around 6:45 am at around the time of the homicide. She soon identified Childs as the driver of the VW bug, buy could not identify the passenger. Several days after the crime, Ms. Barganier asked a detective if she could be hypnotized so that she might be able to relax and then recall more about what she had observed.
Ms. Barganier was hypnotized by one of the officers involved in investigating the crime scene. During the session, the officer repeatedly told Ms. Barganier that she “might find [her]self being able to recall other things as time moves on” and that it was “not uncommon to just remember something after the fact, after the session”. She was even told “you’ll remember more as time goes by”’. After the session, Ms. Barganier did a composite sketch of the passenger and depicted a white male with shoulder-length hair – an image that looked nothing like Flores, who is overweight, Latino, with close-cropped hair.
Police detectives, however, began to show Ms. Barganier photo lineups of Hispanic men with short hair that included Mr. Flores: Ms. Barganier, however, did not pick Flores out of the photo lineups.
Throughout the next few months, the case was frequently on the news, and many stories about it featured a photo of Flores, including the same mug shot that Ms. Barganier had been shown at the police station following the hypnosis session. By the time of trial, Ms. Barganier, had been repeatedly exposed to images of Flores’s face. When Ms. Barganier was called as a witness at trial, which took place over a year after the crime, suddenly, after seeing Mr. Flores in the courtroom, she claimed that she was “more than 100 percent” positive that Mr. Flores was the passenger she had glimpsed getting out of the VW bug early on the morning of January 29, 1998.
Stay of execution
In 2016, Charles Flores received an execution date, which was stayed. Flores raised a challenge to the hypnosis-tainted identification procedure in his case under the new junk science writ, Article 11.073. The Court of Criminal Appeals issued a stay of execution in his case, and remanded for an evidentiary hearing. At issue in the evidentiary hearing is whether the testimony of the State’s expert about the reliability of the hypnotized witness’s identification conflicts with the current scientific understanding of hypnosis and eyewitness memory.
Current Status/Procedural posture
Approximately ten months after the hearing concluded, the District adopted the State’s proposed findings of fact and conclusions of law nearly verbatim. These FFCL find that post-hypnotic identification is reliable and consistent with the modern science of eyewitness identification, and that there was sufficient proof of Mr. Flores’ guilt without the post-hypnotic identification. The case is now before the Court of Criminal Appeals, and that Court will decide whether Mr. Flores is entitled to a new trial.
The national Innocence Project recently filed an amicus brief in this case. In their brief, the Innocence Project asked the Court of Criminal Appeals to reject the findings below and grant relief in this case of the following reasons:
- Barganier’s ability to form a strong memory of what she saw outside her house was necessarily limited by critical factors such as lighting, distance and exposure duration.
- Law enforcement officers investigating this case used a number of highly suggestive identification practices that are now known to contaminate eyewitness memory: a hypnosis session, multiple identification proceedings conducted by those who already knew the identity of the suspect, and an array that was biased in its construction.
- By the time she testified at trial, Barganier had been exposed to much contaminating information that discernibly influenced and changed her account of what she had seen
- Despite having failed to identify Flores in an out-of-court identification proceeding shortly after the incident, Barganier finally made the identification in a highly suggestive in-court identification procedure many months after the crime.
To see the Innocent Project’s amicus brief and Objections to District Judge’s Recommendations to Deny Relief, go to www.charlesdflores.com
What his lawyer says
There is absolutely nothing directly linking Flores to the murder of Betty Black
No-one saw the murder and there was no evidence of a struggle. The State relied upon Flores’s alleged presence at the scene as sufficient basis of guilt. However, the only witness who claimed to have seen Flores at Black’s home on January 29, 1998, recovered this information from a hypnotically enhanced memory. All the other witnesses, neighbors and the children of neighbors who testified to various observations, were unable to make a positive identification of Flores.
On the other hand, the evidence submitted at trail confirmed that Ricky Childs was present at Betty Black’s house the morning of January 29, 1998.Ricky Child was directly identified by witnesses as being present that morning. Childs also confessed to the murder.
In the same way, the evidence against Jackie Roberts is unequivocal. She had motive. Roberts, Child’s girlfriend and Betty Black’s former daughter in law, knew Black’s schedule because Black often babysat Roberts ‘children. The evidence at trial established that Roberts knew that Gary Black had hidden large amounts of money in his parents’ house. After the murder she went into hiding.
In spite of mountains of evidence against Childs and Roberts, Flores is the only one with a capital murder conviction Despite that both Childs and Roberts had opportunity and motive, neither face a death sentence.
Specific issues:
. INEFFECTIVE ASSISTANCE OF COUNSEL (IAC)
- FLORES requested witnesses to be called and testify in an alibi defence. In response, trial attorneys informed FLORES that the state prosecution could not prove his guilt. Thus, there was no need for an alibi defence. So FLORES’ trial attorneys did not call any witnesses nor did they present any mitigating evidence once he was convicted.
- Despite repeated efforts by FLORES, his Habeas Counsel failed to conduct a proper investigation, failed to correctly raise genuine meritorious claims and simply threw FLORES State Habeas Writ together at the last minute.
. JUNK SCIENCE AND FAULTY FIBER ANALYSIS
. The prosecution called a (now discredited) Southwestern Institute of Forensic Science (SWIFS) fiber analyst named Charles LINCH to perform fiber analysis on a .44 handgun found in the possession of the alleged co-conspirator. LINCH gave faulty testimony in FLORES’ trial on the results of his analysis of the .44 handgun. LINCH testified that starch grains scraped from the barrel of the .44 could be and were most consistent with potato grains, and in this manner tied the .44 to the crime scene. This was not possible as this weapon did not come into the possession of alleged co-conspirator until after the capital murder was committed.
. Hypnosis was used on the only witness who allegedly saw the suspects at the crime scene and by doing so tainted her memory.
When a hearing was held during trial on the hypnosis of the only eye-witness, FLORES’ trial attorneys failed to challenge the scientific exactitude of the hypnosis process.
. Inadequate Procedural Protections in the Absence of Legislative Change
Flores raised a challenge to the hypnosis-tainted identification procedure in his case under the new junk science writ, Article 11.073. The Court of Criminal Appeals issued a stay of execution in his case, and remanded for an evidentiary hearing. At issue in the evidentiary hearing is whether the testimony of the State’s expert about the reliability of the hypnotized witness’s identification conflicts with the current scientific understanding of hypnosis and eyewitness memory.
Mr. Flores presented expert testimony both from an expert on hypnosis and an expert on memory and eyewitness identification to show that the State’s expert’s testimony was unreliable and that the hypnosis session likely induced an inflated sense of confidence in Ms. Barganier about the accuracy of what she later believed she has “remembered”. The experts explained to the court the contemporary scientific consensus as to how memory is inherently reconstructive, not stored in the brain like a video recording, and how the nature of hypnosis enhances the risks of suggestibility and decreases the likelihood of accurate recall in the hypnotized witness. Unlike at the time of trial, today, there is a virtual consensus that hypnosis only enhances the risks of false memory creation, unwarranted confidence in memories, and errors in eyewitness identification.
At the post-conviction hearing, Ms. Barganier admitted that, with respect to certain details in her memory of what she witnessed, she was not “real clear of that was [her] imagination or not, but… that’s how [she] remembered it.” Despite this and similar admissions, she maintained that she was confident about her in-court identification of Flores.
Find full legal summary and all key legal documents in relation to Mitigation issue - click here
"My court appointed attorney did very little to prepare for trial. I told my attorney where I was at the time of the crime and requested that witnesses be called to testify to my whereabouts when the crime took place. My attorney told me that the government prosecutor could not prove that I was guilty. Because of this, there was no need to show an "alibi defense". So I sat through my trial where my life hung in the balance and said nothing. My incompetent trial attorney did not call one witness to prove my whereabouts when the crime took place.
Upon arriving on death row, I began to study criminal law to better understand his situation. The knowledge and understanding of death penalty appeal law has come at a steep price for me. The more I learn, the better I understand how poorly I was represented by court appointed attorneys. I comprehend that their incompetency could well cost me my life. In fact both of my state level court appointed appeal attorneys have been kicked off the Texas Court of Criminal Appeals attorney's list due to poor job performance"
- Charles Flores -
What other prosecution services generally say about the reliability of hypnotised witnesses
In the UK, the Crown Prosecution Services warn that It is probable that the court will exclude the evidence of a witness who has been hypnotised on the basis that it would have such an adverse effect upon the fairness of the proceedings that it would be unfair to admit the evidence. They say:
In the UK, the Crown Prosecution Services warn that It is probable that the court will exclude the evidence of a witness who has been hypnotised on the basis that it would have such an adverse effect upon the fairness of the proceedings that it would be unfair to admit the evidence. They say:
Information obtained under hypnosis should always be treated with great caution. There is a strong likelihood that evidence obtained under hypnosis will be unreliable and inadmissible in criminal proceedings. A person who has been hypnotised should only be called as witness in exceptional circumstances.
Guidance Confabulation
Giving False Information Under Hypnosis Information obtained under hypnosis may be true or false. The technical term for false information is "confabulation". It is impossible to distinguish between the truth and confabulation unless there is independent evidence confirming the information.
Cueing
A person under hypnosis may be subject to "cueing". This means:During hypnosis these can become fixed as facts in the mind of the subject. There is no reliable means of guarding against this happening. (...)
- . explicit or implicit suggestion by the hypnotist
- . something said long before the session
- . something that the witness just happened to be thinking about
- . a fantasy of the witness.
Under no circumstances should suspects or persons who may be implicated in the commission of an offence be hypnotised. (...) A witness who has been hypnotised will often tell a story full of detail which may appear utterly convincing. No expert will be able to tell if it is the truth or confabulation. The story told under hypnosis will become so firmly fixed in the subjects mind that he or she will become unshakeable in cross examination.
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What his mother says
It is great to know that my husband Carter and I are not alone in the fight. I cannot tell you how much I appreciate your help, your prayers, your thoughts and the funds. I want to thank one and all for everything. Be blessed. Lily Flores
It is great to know that my husband Carter and I are not alone in the fight. I cannot tell you how much I appreciate your help, your prayers, your thoughts and the funds. I want to thank one and all for everything. Be blessed. Lily Flores
What his supporters say:
Based on legal motions that have been sent to them, they stress that Richard Lynn Childs has confessed to murdering Betty Black in a plea bargain, which warrants him a lesser sentence. Furthermore, they point out that no money, no gun, no fingerprint, no DNA collected on the crime scene links Charles Don Flores to this murder – rather, they point to Childs as the killer. This, in their own view, should be enough to let Charles walk free, make it public that he is innocent and has nothing to do with the murder of Mrs. Black.
Based on legal motions that have been sent to them, they stress that Richard Lynn Childs has confessed to murdering Betty Black in a plea bargain, which warrants him a lesser sentence. Furthermore, they point out that no money, no gun, no fingerprint, no DNA collected on the crime scene links Charles Don Flores to this murder – rather, they point to Childs as the killer. This, in their own view, should be enough to let Charles walk free, make it public that he is innocent and has nothing to do with the murder of Mrs. Black.
I have been corresponding since 2001 with Charles Don FLORES
and he has become a dear friend. He has always maintained his innocence. It is easy for me to believe that he did not kill Betty Black at Farmers Branch, when his lawyers say there is nothing, absolutely nothing directly linking him to this crime. Charles would like to regain his freedom but he does not think only about himself: He has always helped his friends since childhood, and he also helps other in Polunsky, whether they are innocent or not. He appreciates a lot the letters of his French friends and I admire his amazing tenacity.
To be honest I have even closed my mind to this, with the hope that
his attorney comes up with something that will unlock the lock and let Charles walk free with his name cleared.
Christophe, France.
Concert organised by ACAT, in support of Charles Don Flores, France, 2014
Charles is also supported by Lutte Pour la Justice Pau, France.
ACAT France and Acat Thonon Les Bains act as a god parent to Charles since 2003, supporting him financially by organising fundraising events.
ACAT is hoping to build a world where human rights are better respected, and in which torture and the death penalty will no longer be used by the States.
I have heard that, in order to truly appreciate life, we must first know death,
and for myself at least this has proved to be the case. The circumstances Charles has found himself in have forced him to confront death in the same way that my illness forced me to do the same. Having survived my own journey with death, I now have a very different way of looking at the world, and for that I am grateful. My appreciation of art, nature, music and laughter is heightened, but this could very easily have not been so. When Charles came into my life, I had forgotten how to experience the beauty of these things. It took a dying man to teach me how to live again...
Nancy, friend
I've known Charles as a spiritual seeker from the bits of wisdom and poetry
which always start his letters. He spends his time “in the company of great and noble souls.” (...)
What greater testimony to a person's character and wisdom is there than their own personal triumph over adversity and wrong? Charles's insight and spirituality are enlightening by themselves. But Charles is a victim of grave injustice and yet his truth is a message of inner peace and outward joy.
Jim, friend
His time and maturation in the most unlikely of places, Texas Death Row,
has led Charles to think about life, what it means, not just for himself but for all human beings. How we might think and therefore act differently to overcome those challenges to lead a more meaningful, contemplative and mentally balanced life, each and every day.
Yvonne, friend
