AUSTIN — For many people, the word “hypnosis” evokes images of swinging pocket watches, swirling vortexes and impressionable subjects mesmerized by movie villains.
They think of Get Out, The Manchurian Candidate, even Office Space.
But in the Lone Star State, it isn’t a parlor trick or Hollywood ploy. Here, hypnosis is a matter of life and death.
Texas has the most robust forensic hypnosis program in the country, training police officers across the state to sharpen or recall crime witnesses’ lost memories. As more and more states ban the practice, law enforcement here turns to it at least a dozen times a year.
Now, two Dallas-area death row inmates are arguing it’s time to stop. Their executions have been delayed as they fight their convictions, which they claim were based on “junk science.”
“Once you have, at a minimum, serious questions that a technique sent a man to death row, you need to change the way you use that technique,” Gregory Gardner, an attorney who has defended both men, told The Dallas Morning News. Hypnosis “does so much more harm to innocent people than getting guilty people behind bars.”
Is forensic hypnosis quackery that’s sent innocent men to their deaths, or a powerful law enforcement technique that can crack open cold cases? One of the state’s most controversial investigative tools is about to be tested.
Devotees and detractors
To understand hypnosis, readers must suspend their preconceptions.
Supporters and skeptics alike agree it’s not a mind-control technique. Professional hypnotists won't make you bark like a dog. They don’t put people to sleep. Subjects are alert and awake at all times. They don't employ swinging watches or vortexes — usually. There is also agreement that hypnosis can be valuable in therapy. Mental health professionals have used it to get patients to kick addiction and as a relaxation tool to help heal trauma.
The real rift between devotees and detractors is over whether hypnosis can sharpen or unlock lost memories. Law enforcement personnel who use "forensic hypnosis" — employing the technique as a "relaxation tool" to get witnesses and victims to recall what they saw — believe it can, and point to several cases as proof.
In 1978, 15-year-old Mary Vincent was hitchhiking near Berkeley, Calif., when she was picked up by a merchant seaman. The man raped her, cut off both her arms and abandoned her in a ravine to die.
The teen survived but couldn’t recall what her attacker looked like — until she was hypnotized. Lawrence Singleton, “The Mad Chopper,” was tracked down and convicted.
Hypnosis helped find the suspects who kidnapped 26 California schoolchildren in 1978 and helped convict serial killer Ted Bundy. In Texas, it was used to catch an Amarillo bank robbery suspect in 2013 and led to the 2016 arrest of two men accused of raping and stabbing a woman and leaving her unconscious and partially clothed in a field.
The CIA has turned to it, and the Justice Department believes it can be helpful "on rare occasions." The FBI requires its sketch artists to learn it.
But since its heyday in the 1970s and '80s, forensic hypnosis has not only dwindled rapidly, but hypnotically induced evidence has been banned in some places as unreliable.
“Use special caution before using hypnosis for age regression to help you relive earlier events in your life,” the Mayo Clinic warns. “It may cause strong emotions and can alter your memories or lead to creation of false memories.”
Joseph Green, the two-time past president of the American Psychological Association’s Society of Psychological Hypnosis, said movies have erroneously conditioned Americans to believe it’s a kind of “truth serum.”
“It’s pretty easy to have people change or modify memories, at least to some extent, by the use of hypnosis,” explained Green, a professor at Ohio State University at Lima. This and other memory techniques like journaling or age regression are “fraught with pitfalls and danger, leading questions and bias from the interviewer.”
Especially, criminal defense attorneys say, if that interviewer is a law enforcement officer.
Hypnosis in Texas
According to a News analysis of the National Registry of Exonerations, at least 10 men have been freed after hypnosis helped put them behind bars.
This includes Clarence Moore, a New Jersey man who spent 20 years in prison for rape before the courts determined he was wrongfully convicted. In his case, among other issues, the victim's memory of the rapist's voice and appearance changed after hypnosis. His case led the state to ban hypnotically enhanced testimony in criminal cases.
"Twenty-six states limit the admissibility of post-hypnotic testimony," the New Jersey Supreme Court wrote in 2006. "The cases from those states represent a persuasive body of law, based on expert opinion, holding that hypnotically refreshed testimony is not generally accepted science."
According to a 2012 study, half of U.S. states now have "per se inadmissibility rules" barring hypnotically induced evidence in criminal cases. Not so in Texas.
While it's is far less popular than it used to be — 152 law enforcement officers were certified in 1999 compared with just 12 a decade ago — forensic hypnosis is still seen as a handy tool in limited circumstances. There are about two dozen forensic hypnotists in Texas at this time, the majority of whom serve in the Harris County Sheriff’s Office and Texas Rangers.
It's unclear how many times they have used the technique, but the Rangers confirmed they conducted 24 hypnosis sessions in 2016 and 2017.
“Hypnosis is utilized in a very small percentage of cases and is conducted only by specially trained forensic hypnotists,” Texas Department of Public Safety spokesman Tom Vinger told The News. “Any information gained through hypnosis must be corroborated with other information/evidence during the course of a criminal investigation.”
Last year, the Rangers adopted "a new vetting process ... to determine if the hypnotic interviewing technique is a sustainable option, before a session is scheduled." The state has no reporting or monitoring requirements for local police departments.
While there are currently no forensic hypnotists in local police departments in North Texas, the tool played an important part in the arrests and convictions of two Dallas-area death row inmates whose executions were recently put on hold.
Charles Don Flores, 48, was convicted in the 1998 slaying of Elizabeth “Betty” Black after a neighbor was hypnotized to recall the features of two men she’d seen going into the victim’s Farmers Branch home the morning of the murder.
In 2007, Kosoul Chanthakoummane, now 37, was convicted of McKinney realtor Sarah Walker’s brutal stabbing death. The police found him after they released a sketch elicited from a hypnotized witness who’d seen a young Asian man at the scene.
Both men were sentenced to death. But both have successfully argued to delay their executions, saying they deserve new trials because “junk science” put them away.
Marx Howell, who helped design the state’s forensic hypnosis program 30 years ago, said law enforcement officials who want the certification are well-trained officers taking on a new skill. The course touches on everything from religious attitudes involving hypnosis and techniques for hypnotizing children to “misconceptions, myths and possible dangers.”
Officers must complete the program, as well as an exam, and renew their certifications every three years. Anyone else caught conducting sessions is subject to criminal penalty.
The court has also imposed 10 “best practices” on forensic hypnotists here. Known as the Zani rules, after the 1989 case that spurred them, they include taping the entire session, avoiding leading questions and prohibiting officers working on the investigation from conducting the hypnosis.
Several of these rules were not followed in the Flores case. The hypnotist, a local officer in Farmers Branch, was on the team conducting the investigation and didn't tape the session from his first interaction with the witness. It was also his first — and only — time using the tool.
Still, Howell said the officer did an "acceptable" job. Plus, there is other evidence against Flores that Howell argued is strong enough to keep him behind bars.
“Are there some cases out there where a police officer did a bad job on hypnosis? Yes,” Howell said. “But Texas has the most well-organized, comprehensive program in the United States.
"The defense would have you believe that we can't remember what we did yesterday."
Richard Lynn Childs, who confessed to the murder of Betty Black, has already been paroled. Flores maintains his innocence, but received the death penalty. His execution was blocked in 2016 and he is now waiting to hear whether a judge will grant him a new trial.
Chanthakoummane, whose lethal injection date has been delayed not once but twice, awaits a July hearing in McKinney. In a letter from prison, he said standards have changed since his conviction.
“The chiefs [sic] evidence that were used to falsely convict me were not at the time debunked as ‘junk science,’” wrote Chanthakoummane, who was also convicted using bite mark evidence. “We now know what has been either discredited entirely or isn’t up to the standards of the scientific community.”
Gardner said he hopes these two cases encourage Texas to take another look at the efficacy of forensic hypnosis, the way it has with blood spatter and bite mark evidence. But the state forensic science commission has declined, saying hypnosis is “not an analysis performed on physical evidence” and therefore not subject to its oversight.
Howell is more sanguine about the future of forensic hypnotism.
“I’d be real surprised if they threw out the use of hypnosis in Texas,” Howell said. “I’m not really worried about it.”
Source: Dallas News, Lauren McGaughy, May 14, 2018
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