Penn Jillette, the talkative member of the magic act Penn & Teller, knows that people will find the duo’s new project a little surprising. It is a U.S. Supreme Court brief filed last month urging the justices to hear an appeal from Charles Don Flores, a death row inmate in Texas.

A key piece of evidence in the case was tainted by a police officer’s “investigative hypnosis” of a witness, the brief said.

On a video call from Las Vegas, Penn was quick to say that he does not know much about many things. But he said — and who could disagree? — that he is an expert in misleading people.

“I am bringing this to you with the utmost humility,” he said. “I am carny trash. I am uneducated. If you want to say I have a position of expertise, it is that I have lied to people onstage and gotten them to believe it. And I think I could do what that police officer did.”

But first Penn wanted me to know a couple of things. He said he had no idea whether Flores is guilty of a 1998 murder of a woman in Texas. He added that, in his view, Flores should not be executed even if he is.

“I am completely against the death penalty in every single case,” Penn said. “If I saw Bin Laden killing my mother in Times Square, and taking 1,000 people with her, would I then be in favor of the death penalty? The answer is no.”

Then he got to the point. “On top of that,” he said, “I think this evidence is bogus.”

Ardent Skeptics

Penn & Teller, as Jason Zinoman wrote last year in an appreciation in The New York Times, “revolutionized magic, demystifying and modernizing the form, while merging it with comedy.” That combination, Zinoman wrote, created “one of the great success stories of modern show business.”

The two magicians are ardent skeptics. They explored questionable and fraudulent practices over eight seasons of their Showtime series “Penn & Teller: BS!” One episode was devoted to the misuse of hypnosis.

That got the attention of a lawyer for Flores and of the Supreme Court clinic at the University of Texas, which approached the magicians and ended up filing their friend-of-the-court brief.

Investigative Hypnosis

The brief noted that there was no physical evidence against Flores. The witness who identified him at trial, Jill Barganier, had initially described someone who looked nothing like him. That changed after she underwent hypnosis.

Barganier at first told police that she had seen two white men with long hair who resembled one another pull up in a Volkswagen bug in the driveway of her neighbor, Elizabeth Black, shortly before Black was murdered.

Barganier identified one of them, Richard Childs, from a photo array. He was a white man with long hair and a lanky frame. He pleaded guilty to the murder, served about 18 years and was paroled in 2016.

The police were also interested in Flores. But he was a large Hispanic man with short hair.

A few days after the murder, Barganier met with a police officer, telling him again that the men she had seen both had long hair.

The officer, who had never hypnotized anyone before, told Barganier that he would help her summon a memory by pressing a play button on a mental “recorder” that would allow her to see “a film of the events that occurred on that day.”

This is a thoroughly discredited understanding of how memory works, and it drives Penn crazy. “There’s no recording device” in your brain, he said.

In their brief, Penn & Teller put it this way: “The myth that memory is a video recording playing in a private theater in your brain is one of the biggest lies about hypnosis.”

During the hypnosis session, the officer asked suggestive questions.

“Is his hair short? Is it shaved? Is it neatly cut?” he asked of the driver. “Does he have it neatly cut, or is it trimmed?” he asked of the passenger. Presented with a photo array of six Hispanic men, Barganier did not identify Flores.

But at the trial 13 months later, she said Flores was one of the men she had seen on the morning of the killing. She was, she said, “over 100%” sure.

The trial judge was not convinced, noting that Barganier by now knew Flores’ name. “Honestly, you don’t have to be a rocket scientist to pick out who is the Hispanic individual in the courtroom,” the judge said.

But the judge allowed Barganier’s testimony. Flores was convicted and sentenced to die.

An Uphill Fight

My colleagues on the opinion side of the Times have put together a video that includes excerpts from the hypnosis session and an interview with Flores. It notes that most states, including Texas as of 2023, bar testimony tainted by investigative hypnosis.

But that Texas law is not retroactive. In the Supreme Court, Flores is relying on a different Texas law, enacted in 2013, which allows criminal cases to be reopened when discredited scientific techniques played a role in the conviction. No death row inmate has ever succeeded in using the law to obtain a new trial.

The Supreme Court, which will decide whether to hear Flores’ appeal in the coming months, is notably unsympathetic to claims from condemned inmates. Flores’ legal argument requires the justices to rule that the state law creates rights under the federal Constitution’s due process clause. I’ve heard more promising arguments.

As for Penn, he is certain that something went very wrong in the Flores case.

“The way they got the evidence was about the level of seriousness of a Las Vegas goofball magician,” Penn said. “I do that every night in my show, and I’ve done it for 50 years.”

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This article originally appeared in The New York Times.

By Adam Liptak/Roger Kisby
c.2026 The New York Times Company