In , three men on federal death row challenged the method as cruel and unusual in D. District Court, providing numerous examples of executions dating back to the s that had caused visible suffering. The litigation over lethal injection brought federal executions to a halt. Although the U. Supreme Court would uphold the same three-drug protocol in response to a state challenge in , another obstacle soon followed. The sole U.
This prompted a desperate search for new sources — and eventually, new drugs. The protocol is summarized in two pages that, like similar state documents, provide for the anonymity of executioners while offering no information about the origin of the drug. It is also clear that the first five men scheduled to die were carefully chosen. All were convicted of crimes against children or elderly people — offenses likely to dampen public outrage as their execution dates approach. With five executions now set to take place in quick succession beginning December 9, Americans are being confronted for the first time in years with a system that is largely abstract and unfamiliar.
One is the belief that the federal death penalty targets terrorists. In fact, of the 62 people on federal death row, only one, Dzhokhar Tsarnaev, was convicted on terror charges. Another is the notion that the federal system is somehow superior to what exists in the states, a myth repeated by Hillary Clinton on the campaign trail in Cohen recalls her surprise when she first started handling federal cases. I thought they would involve really good defense lawyers and really careful judging and really smart prosecutors and lots of judicial review.
And I was really shocked to find that it is not that way. Many have noted that the move to restart executions defies national trends showing the death penalty moving toward extinction. One of five men convicted in the abduction, rape, and murder of a year-old girl named Lisa Rene in Arlington, Texas, Webster had been on federal death row since In , a judge in the Northern District of Texas sentenced him to die.
Webster would likely not have ended up on federal death row if not for legislation passed just days before his crime. The sweeping legislation included the Federal Death Penalty Act , which vastly expanded federal death sentences. Overnight, 60 new offenses became punishable by death. Federal prosecutors initially said they were considering seeking death sentences against all five men.
The three other defendants would plead guilty in exchange for lesser sentences. Hall was tried first, in The trial judge denied a motion for a mistrial. After 75 minutes, the jury convicted Webster, later recommending a death sentence. Six years after Webster was sent to death row, the U.
Supreme Court issued a landmark ruling, Atkins v. Virginia , which prohibited death sentences for people with intellectual disabilities.
- The Washington Post
Still, his sentence remained intact. When the Bush administration set an execution date for Webster in , a clemency petition circulated by Amnesty International detailed the horrific abuse Webster and his siblings experienced at the hands of their father, a common component of death penalty cases. Webster ultimately won a temporary reprieve by joining the ongoing federal lethal injection lawsuit. Then, in , his federal habeas attorneys discovered a slew of files that had never been released by the state.
Among them were records showing that government psychologists had examined Webster in — a year before the crime that sent him to die — and concluded that he had an intellectual disability. Other records showed that Webster had taken special education classes, despite testimony claiming the opposite at trial. In perhaps the most celebrated hypnosis case in the state in the 80s, the technique was used to solve the murder of a leftwing radical in Austin that had occurred 13 years earlier, in The murderer in that case also killed his mother, sawed her body into pieces and scattered them along the highway between Oklahoma and Arkansas.
But as forensic hypnosis became more widespread, its weaknesses became more evident. In , New Jersey adopted a six-part test for the admissibility of hypnotically induced testimony, designed to minimise the risk that witnesses were having false memories suggested to them by the police. The following year, the supreme court of California ruled that hypnotically induced testimony was inadmissible in court. This dovetailed with the emergence among scientists of the view that memory was reconstructive rather than recording — more like collage than like photojournalism. In , after a legal challenge by the man convicted of murdering the radical activist and later his mother , Texas, too, adopted a set of standards for evaluating the admissibility of hypnotically induced testimony; they are known as the Zani guidelines, after the name of the killer.
Death Row Facts
Over the next two decades, other states followed in blocking or restricting the use of forensic hypnosis. In fact, the guidelines were part of the problem, creating an illusion of reliability: it was like advertising seatbelts for a car without brakes.
But the push to end forensic hypnosis has been part of a broader movement against the use of junk science to convict people. In , in one of the most famous junk science cases, Texas executed Cameron Todd Willingham for the murder by arson of his three children on the basis of scientific techniques which have since been discredited. The state has worked its way through a handful of junk science issues, such as the use of bite marks to identify a suspect now totally debunked and the practice of matching hairs found at a crime scene to suspects.
Forensic hypnosis could be next. T he hypnosis in the case that put Flores on death row was particularly bizarre. The witness, a Dallas woman named Jill Bargainer, lived next door to the victim. Later that day, at the local police station, Bargainer identified the driver of the car in a number of photo arrays. Bargainer could not recall later how she knew that hypnosis was something they might offer.
The next day, a patrol officer trained in forensic hypnosis hypnotised Bargainer. It was the first and last forensic hypnosis he ever performed. In a video recording of the session, he tells Bargainer to imagine she is sitting in a cinema, holding a remote control; she can use the remote any time she likes to stop the film, or fast forward.
It has often been used to help emotionally traumatised witnesses feel they can control their memories. Bargainer mentioned a few new details in the course of the hypnosis — the first suspect was holding a beer bottle; the second had brown eyes — but nothing particularly substantive emerged. After the hypnosis, she helped police draw a composite sketch of the passenger she thought she saw — a thin caucasian man with long hair. Police then showed Bargainer a series of photo arrays including images of the person they believed to be the passenger: a heavy-set, brown-skinned, short-haired latino man, who had been caught setting the VW on fire two days after the murder — Charles Flores.
Eventually, prosecutors gathered enough circumstantial evidence to prosecute Flores anyway.
At his trial in February , 13 months after the killing, Bargainer was called as a witness. But after she took the stand, the defence called for a Zani hearing.
The Zani guidelines use a minimum of 10 criteria to determine whether the testimony of a previously hypnotised witness should be admissible in court. The criteria include: the interviewer should not be otherwise involved in the case; a recording of the hypnosis should be made that shows everyone in the room at the time of the hypnosis; and no suggestions should be made to the hypnotee.
In a shocking reversal of what she had told police during the investigation, she identified Flores, who was sitting at the defence table, as the second man she saw that morning. Lynn considered it particularly problematic that the hypnotist told Bargainer she would remember more as time went on. Several people testified in court that they had seen Flores with the other suspect on the day of the murder, and another testified that Flores had admitted to shooting the dog. But those supporting Flores, including Agathocleous, believe his case is an extraordinarily compelling example of why forensic hypnosis should be banned.
If he wins his appeal, his case will go back down to a trial court for a new trial, two decades after the first one. In the meantime, the driver of the Volkswagen struck a deal in after pleading guilty to the murder and indicating the gun used in the crime was his, and has been out on parole for three years.
Texas Death Penalty Facts
Under Texas law, multiple people can be found guilty of a murder if it happens in the course of them committing another crime, like the robbery in the Flores case. But there is still a high chance that Texas will eventually execute Flores. In a cruel irony, his case has drawn enough attention to the problems with forensic hypnosis that, even if the state does put him to death, it may still ban forensic hypnosis. One of the key figures challenging the practice is Juan Hinojosa, a Texas state senator who has been involved in fighting the use of forensic junk science since the early s, when he was deeply upset by the execution of Todd Willingham, the man wrongfully convicted and then executed for burning his children to death.
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He also began to read widely about other potentially dubious forms of forensic science, including hypnosis. He has been trying to pass a bill that would make hypnotically induced testimony automatically inadmissible in Texas courts. He was convicted in for the killing of a real estate agent in McKinney, Texas.
A hypnotised witness was also used in this case, alongside bite mark analysis and questionable DNA evidence. This case, too, could help sway the Texas judiciary against forensic hypnosis. The US is in the midst of a vast re-evaluation of the validity of many kinds of forensic evidence.
In addition to blood spatter analysis, arson science, bite mark analysis and hair microscopy, practices such as ballistics testing and picking suspects out of line-ups using sniffer dogs have all been challenged to varying degrees. But banning forensic hypnosis opens up bigger questions than those posed by the end of some other forensic techniques. It points to the need for a broader reconsideration of the way that police and prosecutors influence the memories of witnesses and suspects. What do we do with this dangerous thing that courts have been relying on since time immemorial, that we need to be able to rely on, even when it proves so fleeting?