2. In Your Mind’s Eye

Summary

The Unforgotten – Season 5: Riding Shotgun
Episode 2: In Your Mind’s Eye
Date: March 30, 2026

---

Episode Overview

This episode delves into the use of investigative hypnosis in the case against Charles Flores, who has spent nearly 30 years on Texas death row. The prosecution's key eyewitness changed her story after being hypnotized by police—a practice that was widespread in Texas for decades but is now outlawed. The episode explores how hypnosis affects memory and its controversial role in the criminal justice system, while interweaving first-hand hypnosis experiences, expert testimony on memory science, and the series’ ongoing investigation into the facts of the case.

---

Key Discussion Points & Insights

1. Firsthand Experience: What Is It Like To Be Hypnotized?

• Michelle Pitcher, the host, undergoes hypnosis with Marks Howell, a former DPS detective, to better understand the experience.
• Setting: A public library study room; visible to bystanders, which adds a humorous and slightly awkward dimension.
  • [00:59] “So he holds up my fingers to draw my gaze up, and then he has me close my eyes he moves my arms around until they feel heavy, and then he lets them drop. He asks me to think about a happy childhood memory.” (Michelle Pitcher, Narrator)
• Michelle finds the process relaxing, but does not discover any new or clearer details in her memory.
  • [04:24] “I guess overall, the memory doesn't feel much clearer to me then than it ever had before.” (Jeff Ashebranner, Narrator for Michelle)

Notable Moment

• Comparison to popular perceptions of hypnosis as mind control (“the python from the Jungle Book,” stage hypnotists) vs. real experience.
  • [06:30] Marks Howell: "They want you to believe that you're zonked out in the world ... and you're not zonked out. It's nothing more than a state of relaxation."

Big Takeaway

• Hypnosis is not about mind control but relaxation; it may allow memories to surface but doesn't guarantee clarity or accuracy.

2. The Rise and End of Investigative Hypnosis in Texas

• Texas used police hypnosis much more than other states—over 800 officers certified, close to 2,000 cases (1979–2021).
  • [07:53] Wes Ferguson: “Yeah. You reported that more than 800 officers got certified over that 40 year span. And hypnosis was used in nearly 2,000 cases. And that's just in Texas.”
• The Dallas Morning News’ reporting on problematic hypnosis cases leads to the technique being outlawed in Texas in 2023.
  • [08:21] Michelle Pitcher: “That article ... led to the change in policy and ultimately the change in the law.”

Marks Howell’s Perspective

• Sees hypnosis as a tool for relaxation to help memory—not a way to extract hidden truths or control minds.
  • [08:49] Marks Howell: "There's a lot of definitions about hypnosis, and nobody can agree on one of them ... the way I see hypnosis is nothing more than relaxation."

3. The Charles Flores Case: Hypnosis and Eyewitness Memory

Jill Bargainier’s Hypnosis Session

• Jill, a key neighbor witness, requests hypnosis hoping it will help her remember details.
• Officer Ron Serna, newly certified, conducts his first (and only) session.
  • [13:19] Michelle Pitcher: “Jill actually requested the hypnosis herself … and thought that that would be a good way for her to relax and potentially remember more about what she saw out of her window.”
  • [13:51] Michelle Pitcher: “This was his first time trying to hypnotize somebody.”
• Jill’s memory becomes more vivid, but the session does not uncover new or conclusive information.
  • [19:24] Michelle Pitcher, Narrator: “The hypnosis session doesn't uncover any new explosive information. Jill says she felt like she could see the scene a lot better, but there are still certain parts she's unsure about.”
• Notably, Jill originally described two white men with long hair, a detail she stuck by before and after hypnosis.

Impact on the Case

• Despite sticking with her original description, police later show Jill a photo lineup that does not include anyone fitting her description, including Charles Flores (who is Hispanic, bald or with short hair).
  • [27:19] Narrator / Michelle Pitcher: “Instead, it's all Hispanic men, bald or with short cropped hair. Charles Flores's Picture is number two.”
• After hypnosis and failed identification, police issue a warrant for Flores anyway, based on other (unspecified) evidence.
  • [32:05] Narrator / Michelle Pitcher: “Remember, after her hypnosis interview, Jill Bargainier still didn't pick Charles Flores out of the lineup. But police Issued a warrant for his arrest two days later.”

Contradictory Witness Accounts

• Multiple witnesses recall different hair colors, times, and details about the suspects and car.
• Some inconsistencies seem explainable as memory quirks; others remain inexplicable.

---

4. Memory Science and Eyewitness Testimony

Key Expert: Prof. John Wickstead, UC San Diego

• Forensic memory expert, now focusing on the dynamics of real-world eyewitness memory.
  • [21:32] John Wickstead: “The science is way more interesting than how prosecutors and defense attorneys think about memory. The truth is way more interesting than that.”
• The first recollection of a witness is the most reliable; repeated questioning and suggestion (e.g., lineups, hypnosis, media reports) steadily degrade reliability.
  • [23:10] John Wickstead: “That's before much forgetting has happened before. Much contamination. Memory contamination has happened. That's where you get the most reliable information.”

Notable Quote:
[23:28] John Wickstead: “Test a witness's memory only once, because even that test changes. It doesn't leave their memory the way it was. It changes their memory, especially for the people in the lineup.”

• The lineup shown to Jill violated scientific standards by not matching her description, increasing risk of contamination.
  • [27:27] John Wickstead: “A cardinal rule, science based rule since 1988 ... everyone in the lineup should match the witness's description of the perpetrator. That's a fair lineup.”

The Role of Emotion and External Influence

• Prof. Holly Bowen, SMU: Memory is reconstructive, influenced by emotions, repeated retrieval, and new information (media leaks included).
  • [25:35] Holly Bowen: “So we know that memory is not just this video recording of everything that happens and you just play it back. But it's actually this reconstructive process…”
• Example: Jill’s description of the VW Bug changes from "pink and yellow" (initial) to "pink and purple" (after media reports).
  • [26:09] Michelle Pitcher, Narrator: “the Dallas Morning News had run a description of the car, saying it was pink and purple. It seems possible Jill's memory of that morning was already starting to shift based on the new information she was getting.”

5. The Lineup, Discrepancies, and Aftermath

• Witnesses gave conflicting details about times and suspects’ appearances.
  • Jill Bargainier, Michelle Babler (neighbor), and their children all recall events differently.
  • There is a major, unresolved time discrepancy between Jill and Michelle’s accounts of when the VW Bug pulled up.
    • [30:16] Michelle Pitcher: “So that's obviously quite a difference, especially because one of them would have been before sunrise.”
    • [30:31] Narrator / Michelle Pitcher: “So it’s questionable how you could have seen if you were standing in the house with all the lights on, you look out the window. If it’s dark outside, you’re going to see your reflection back.”

Investigators' Dilemma

• With no physical or DNA evidence, police and listeners alike are tasked with picking which witness memories are most credible—a subjective and uncertain process.
  • [31:12] Wes Ferguson: “Are there any explanations for these little discrepancies?”
  • [31:16] Narrator / Michelle Pitcher: “No.”
• This “patchwork” and the selectivity of police in following memory evidence is, as the hosts say, why Flores is still on death row and why the case remains controversial.

---

Notable Quotes and Memorable Moments

• [06:30] Marks Howell: "It's nothing more than a state of relaxation." (on hypnosis)
• [23:28] John Wickstead: "Test a witness's memory only once, because even that test changes … You can't fairly test their memory again and get more reliable information."
• [27:27] John Wickstead: "Everyone in the lineup should match the witness's description of the perpetrator. That's a fair lineup."
• [34:43] Charles Flores: "People say you run because you're guilty and this and that. But yeah, you also run when you're afraid. You also run when you know you've been set up." (on fleeing after becoming a suspect)

---

Important Timestamps

• 00:59–04:24: Michelle’s firsthand hypnosis experience with Marks Howell
• 07:53–08:34: History, controversy, and downfall of police hypnosis in Texas
• 13:19–19:24: Detailed breakdown of Jill Bargainier’s hypnosis and findings
• 21:32–24:31: John Wickstead explains the science of eyewitness memory and the critical “first test”
• 25:35–26:44: Holly Bowen on memory as a reconstructive process; impact of media leaks on witness recall
• 27:13–28:04: Police present Jill with a mismatched photo lineup, violating scientific standards
• 30:06–31:08: Discrepancies between witness accounts, the challenge of constructing a credible timeline
• 32:25–34:43: Charles Flores describes becoming a suspect and his perspective on being implicated

---

Conclusion: Themes and Implications

• The episode critically examines the trustworthiness of witness memory, the contaminating effects of investigative techniques and external information, and the devastating consequences of these factors in life-and-death cases.
• While hypnosis is often mythologized, in practice it is simply a form of guided relaxation—with dubious usefulness for precise memory recall and real dangers for memory contamination.
• Scientific advances now starkly contradict the way eyewitness memory has been handled in cases like Charles Flores’s—raising troubling questions about how justice is reached in the absence of objective evidence.

---

For those interested in wrongful convictions, memory science, and the criminal justice system, this episode is both a primer and a provocative case study—interweaving personal narrative, history, and expert voices to illuminate a complex and ongoing controversy.

Transcript

[Michelle Pitcher]

Can you describe to me what it's like to be the person who's being hypnotized?

[Marks Howell]

Or, like, what's it like to be hypnotized?

[Michelle Pitcher]

What's it like?

[Marks Howell]

You want to get hypnotized in two minutes?

[Narrator / Michelle Pitcher]

Sure.

[Marks Howell]

Do you?

[Michelle Pitcher]

Yeah.

[Marks Howell]

I'm not gonna do it unless you want to.

[Michelle Pitcher]

I do want to.

[Narrator / Michelle Pitcher]

Yeah.

[Marks Howell]

Okay. All right.

[Narrator / Michelle Pitcher]

You're listening to a conversation I had recently with Marks Howell, a former detective with the Texas Department of Public Safety. He actually helped develop the hypnosis policy that the state police used for decades. He started using hypnosis in investigations back in 1979. He's now 87 years old and semi retired. He met me at a public library to talk about investigative hypnosis. It's a part of the story about

[Michelle Pitcher]

Charles Flores, death row case that gets

[Narrator / Michelle Pitcher]

a lot of attention. People like the prosecution and Farmer's Branch PD say it maybe gets too much attention.

[Michelle Pitcher]

But it is part of the story,

[Narrator / Michelle Pitcher]

and I wanted to make sure I understood how it works.

[Marks Howell]

So we can do this and you can come around here because you're gonna

[Officer Ron Serna]

think you look silly.

[Michelle Pitcher]

Well, I don't have much shame. I'm gonna be honest.

[Wes Ferguson]

Sit tight.

[Podcast Announcer]

Michelle's about to get hypnotized.

[Narrator / Michelle Pitcher]

From Free Range Productions and the Texas observer. This is season five of the Unforgotten Riding Shotgun. I'm your host, Michelle Pitcher.

[Wes Ferguson]

And I'm Wes Ferguson. This is episode two in youn Mind's. So the investigator and hypnotist, Marks Howell sits you down in a chair and

[Podcast Announcer]

he gives you nonverbal cues. Where's this happening?

[Michelle Pitcher]

We are at a public library. We're in a study room. And it's kind of a funny setting for this. There's a whole glass wall where everyone on the floor can see into it. It's not soundproof or anything like that. So we're basically in a very visible, a mini stage if you're really paranoid

[Narrator / Michelle Pitcher]

about everyone looking at you.

[Michelle Pitcher]

But it certainly wasn't a private location.

[Wes Ferguson]

Are there a lot of people watching, like, wondering who's in here? What are they doing?

[Narrator / Michelle Pitcher]

Yes.

[Michelle Pitcher]

So the study rooms at this particular library are very competitive. So a lot of people were glaring at me that I got the reservation in the first place.

[Wes Ferguson]

Who's this blissed out woman just being hypnotized when we need a place to study?

[Michelle Pitcher]

I know they were like, there's absolutely no way that this is for work.

[Narrator / Michelle Pitcher]

So he holds up my fingers to draw my gaze up, and then he has me close my eyes he moves my arms around until they feel heavy,

[Michelle Pitcher]

and then he lets them drop.

[Narrator / Michelle Pitcher]

He asks me to think about a happy childhood memory.

[Marks Howell]

You can see people around you very clearly. You enjoy all the happy sensations that are attached to them at the time. And you might even be able to tell what they're wearing and what's going on and what's occurring.

[Narrator / Michelle Pitcher]

My mind does flip back to a memory, one I've recalled a bunch of times.

[Michelle Pitcher]

And, you know, at this point, who knows if it's even accurate, but it's me and my siblings sitting in my childhood home singing a song to the camera. My mom's recording. And it's Friends in Low Places, a classic Garth Brooks. And it's interesting because in my memory, I'm kind of looking at us through the camera. So something tells me that at some point I saw this video and my memory of it has been informed by that.

[Wes Ferguson]

Yeah, you're having a memory of your memory.

[Michelle Pitcher]

I think I'm having a memory of my memory, yeah. Or I know I'm having a memory of my memory. And he just told me to think of something uncomplicated, something happy. And that moment came up and like I said, I thought of it a lot before. So it was, well, trod ground.

[Narrator / Michelle Pitcher]

I'm relaxed. As I think about it, I feel almost drowsy. Kind of like the moment right before you drift off to sleep, but you catch yourself and pull back. But when Marx asked me to describe the details of the scene, I really can't do it. I feel myself wanting to, though.

[Jeff Ashebranner]

He asks me to describe the couch.

[Narrator / Michelle Pitcher]

So I start thinking about pictures that

[Jeff Ashebranner]

I've seen of the room, trying to fit that detail into the memory so I can get a good grade in being hypnotized.

[Narrator / Michelle Pitcher]

I guess overall, the memory doesn't feel

[Jeff Ashebranner]

much clearer to me then than it ever had before.

[Narrator / Michelle Pitcher]

It did challenge my existing perception of hypnosis, though. I'd seen the scenes, mostly in my Saturday cartoons, of people using hypnosis to take over someone's consciousness. They're usually using it to control the other person, to make them do their bidding or lull them into a trance. Like the python from the Jungle Book

[Michelle Pitcher]

who uses his eyes to mesmerize his

[Narrator / Michelle Pitcher]

prey before he goes in for the kill.

[Hypnotist Performer]

I'm not like those so called fair weather friends of yours. You can believe in me, trust in me. Just.

[Narrator / Michelle Pitcher]

I looked up videos of those uber charismatic guys who get up on stage at schools or work conferences and perform hypnosis on big groups for the entertainment value they'll have people strut around like they're supermodels, dance with an invisible partner. Basically make the hypnotized folks behave in ways that we'd normally find embarrassing. Quack like a duck and all that.

[Stage Hypnotist]

Actually, for the hypnotized volunteers, I want you to realize in a few seconds you've all become exotic animals of your choice. By exotic animal, I mean an exotic animal you might find in the zoo or you might find on safari. And the more you relax, you'll embed the posture, position, the stance of the exotic animal of your choice. You do the actions, the motions, the stances of that exotic animal with your eyes closed on three. One, two, three. Becoming exotic animals. Lying, crawling, drifting exotic animals of your choice. And the more you believe yourself to be an animal, the more you relax and freeze. Eyes open. Wide awake. Wide awake. Wide awake. Hey, brother, what you doing, man? Hey, take a seat. What are you doing down there?

[Michelle Pitcher]

And as the viewer, you're supposed to

[Narrator / Michelle Pitcher]

think, well, what self respecting high schooler

[Michelle Pitcher]

would be up there making a fool

[Narrator / Michelle Pitcher]

of themselves on stage?

[Michelle Pitcher]

But, well, I actually asked Marks about this and he said that hypnosis in these cases just gives you permission to act the way you'd normally want to, but you know better. So it's a way for a lot of people to, you know, let a side of themselves show, shake off a little bit of inhibition and act like

[Narrator / Michelle Pitcher]

a fool every now and then.

[Marks Howell]

They want you to believe that you're zonked out in the world. You may not even know what the hell's going on, and you're not zonked out. It's nothing more than a state of relaxation.

[Narrator / Michelle Pitcher]

This idea that hypnosis is mind control is deeply embedded in American culture. Svengali was a hypnotist character in a book from 1894. Now we use the word to mean someone who's manipulative. Hypnosis is in our cartoons, our comic books, our horror films. We seem to relish the fear that it's possible in the real world to lose control of yourself through hypnosis.

[Michelle Pitcher]

It sounds like you would disagree with the idea that hypnosis is a dramatically different state of consciousness.

[Marks Howell]

I don't know if I can answer that question, but it's obviously a different state of consciousness from what defense attorneys want you to believe it is.

[Narrator / Michelle Pitcher]

For more than 40 years, investigative hypnosis was widespread in Texas, especially compared to other US States.

[Michelle Pitcher]

The Texas Department of Public Safety was using investigative hypnosis actively until 2021. So it was pretty common. And in 2023 in Texas, the state legislature actually outlawed it. So now it is no longer in use. But nearly 2,000 cases, hundreds of officers over four decades.

[Wes Ferguson]

Yeah. You reported that more than 800 officers got certified over that 40 year span. And hypnosis was used in nearly 2,000 cases. And that's just in Texas.

[Michelle Pitcher]

Yeah. And that actually is from what was a bit of a bombshell report in the Dallas Morning News where they investigated

[Narrator / Michelle Pitcher]

the Department of Public Safety's use of

[Michelle Pitcher]

investigative hypnosis, and they focused on cases

[Narrator / Michelle Pitcher]

where it clearly went wrong.

[Michelle Pitcher]

Clearly, the outcome was not helped by using investigative hypnosis. And that article, that investigation actually led to the change in policy and ultimately

[Narrator / Michelle Pitcher]

the change in the law. Proponents like Mark say it's just another tool officers can use in interviews and interrogations. It can help people overcome mental blocks that are affecting their memories.

[Marks Howell]

There's a lot of definitions about hypnosis, and nobody can agree on one of them. But I'll tell you, the way I see hypnosis is nothing more than relaxation. In a relaxed state is why we use it, because it helps people remember more of them. Example of that is, have you ever been talking to a friend of yours? Do you have any friends?

[Narrator / Michelle Pitcher]

I do.

[Michelle Pitcher]

I have one or two.

[Marks Howell]

Good. So if you've ever had a conversation with a friend of yours and y' all knew the same person and you tried to think of that person's name and you couldn't think of it, the harder you tried, the harder it was. And when you go off and start doing something else, well, then what happens pops into conscious awareness. So the way I see this thing is you put the relaxation and you sort of disassociate the person from the effort of trying to remember, and then it pops into their brain.

[Narrator / Michelle Pitcher]

Marx eventually brought me out of hypnosis using a method similar to the way a yoga class ends. My eyes were still closed, and he told me to let myself do nothing. Then over time, to start to focus a little bit more. The technique Marks used on me was different from the one investigators used on Jill back in 1998, but both come from the same playbook.

[Podcast Announcer]

After the break, police hypnotized their key

[Wes Ferguson]

witness in the murder case against Charles Flores.

[Podcast Announcer]

I've been really focused on my long term health since I reached 40. Have been working out, trying to eat right, and I have found that GLP1s have helped me a lot. Now with Brello, all that is even simpler. It's a wellness platform that's focused on long term health. Longevity and performance.

[Quince Advertiser]

I love that it has clear upfront

[Podcast Announcer]

pricing and built in support and accountability and it's all in one simple platform. Go to brellohealth.com to see if you qualify and explore their GLP1 plans starting at $133 per month for your first three months plus access to their app, community and wellness classes. That's B R E l l o health.com Any information provided is for informational purposes only and should not be construed as medical advice. It is not a substitute for professional medical consultation, diagnosis or treatment. All patients must consult with a healthcare provider prior to the prescription or dispensing of any medication, which will be done only pursuant to a valid prescription. Compounded drug products are not FDA approved and the FDA does not evaluate their safety, effectiveness or quality. Patients are encouraged to discuss the risks, benefits and appropriateness of any medications, including compounded products, with their healthcare provider before

[Quince Advertiser]

use I used to buy all these cheap clothes from like the dollar store or these big box stores or wherever. Now I thought I was getting sweet deals, but I really wasn't because within a week or two or three they would be falling apart. These days I am a lot more about quality over quantity and that's honestly why I love Quince. Their fabrics feel elevated and the cuts are thoughtful and the pricing actually makes sense. My Quint's cable knit sweater got a lot of use this winter and I'm excited to add a couple of Quint's pieces for the spring too. So stop waiting to build the wardrobe you actually want because you don't need a closet full of options. You need pieces that work right now. Go to quints.com unforgotten for free shipping and 365 day returns. That's a full year to wear it and love it. And you will now available in Canada too. Don't keep settling for clothes that don't last. Go to Quince.comUnforgotten for free shipping and 365 day returns.

[Narrator / Michelle Pitcher]

Quent.comUnforgotten On February 4, 1998, Jill Bar goes to the Farmers Branch Police Department to undergo hypnosis. She's the best witness police have from the morning of January 29, when two men had driven up to her neighbor's house to commit a robbery and ultimately a murder. She'd lived next door to Bill and Betty Black, the victim, for 15 years, and she was eager to help.

[Officer Ron Serna]

And our witness will be Jill. How you girl Bargaining here? Jill, Bargain here.

[Stage Hypnotist]

So come in.

[Wes Ferguson]

Whose idea was it to hypnotize her.

[Narrator / Michelle Pitcher]

Jill actually requested the hypnosis herself.

[Michelle Pitcher]

She had heard about it somehow and thought that that would be a good way for her to relax and potentially

[Narrator / Michelle Pitcher]

remember more about what she saw out of her window.

[Michelle Pitcher]

There was one police officer named Ron Serna, and he had been certified a couple years before after taking a 40

[Narrator / Michelle Pitcher]

hour course at the University of Houston in investigative hypnosis techniques.

[Michelle Pitcher]

So he had gotten the certificate.

[Narrator / Michelle Pitcher]

He'd never used it.

[Wes Ferguson]

This was his first time trying to hypnotize somebody.

[Michelle Pitcher]

This was his first time trying to hypnotize somebody. So this was a fairly green officer. He had actually been at the crime scene helping collect evidence that day.

[Jill Bargainier]

And.

[Michelle Pitcher]

And then he got tapped to perform

[Narrator / Michelle Pitcher]

the investigative hypnosis on Jill on February 4th.

[Wes Ferguson]

And this is all on tape. So we're actually hearing Jill being hypnotized.

[Narrator / Michelle Pitcher]

Yes, this is all on tape.

[Michelle Pitcher]

And that's actually one of the best practices about investigative hypnosis, is the whole thing they say from hello to goodbye is supposed to be on tape. Because, as you might expect, these interviews, even when they were common, were pretty highly scrutinized by juries, by appeals lawyers. And so there were a lot of best practices that were put into place that if you kind of checked all these boxes, it was more likely that a judge would allow a witness who

[Narrator / Michelle Pitcher]

had been hypnotized to testify in court.

[Podcast Announcer]

Okay, back to the hypnosis.

[Narrator / Michelle Pitcher]

Cerna starts by asking Jill what she remembers seeing out of her window that morning.

[Jill Bargainier]

First thing I remember is when I looked out the window and I saw a car pull up into the driveway. I remember it was a VW Bug. And I remember seeing two guys get out. I remember the passenger getting out, and I distinctly remember his hair. And then he stood up as he got out, and then he turned back and got a bottle out of the car and just took a quick drink and put it back. And I can remember thinking that it

looked a lot like a big beer bottle.

And then I just kind of passed that off as my imagination, you know, that they just pulled up and acted like they belonged.

[Narrator / Michelle Pitcher]

A note here. She says she saw the passenger holding a beer bottle, but this seems to just be a mistake. In all other cases, she says it was the driver who had the beer.

[Jill Bargainier]

And I remember looking at the passenger as he got out and remembering his dark hair, but basically the same as the driver's. And then he turned and looked directly in the direction that I was looking, but not like he was looking at me. And I think he closed the door and they both started walking. And that's when I closed the blind.

[Narrator / Michelle Pitcher]

After this, Cerna starts the long process of putting Jill under hypnosis. He has her close her eyes while he counts down from 100. He has her imagine that her fingers are glued together. And that they won't come apart until he snaps his fingers. He has her first visualize a tall building and then an elevator. He has her descend in the elevator to a movie theater. Where she'll be able to sit back and re watch what she saw that morning. She even has a remote where she can stop, pause and fast forward.

[Officer Ron Serna]

The movie will be of the day. Thursday, January 29th. The movie starts in the morning. You know this day because it's a very important day to you. It's an important day of significance. A day in which you witness something very important.

[Narrator / Michelle Pitcher]

Jill starts speaking very quietly. At this point she's also stopped fidgeting in her chair. She says she's looking out the window and sees the bug. She's referring here to the Volkswagen Beetle in Betty Black's driveway. She says it's pink with little purple waves painted on the bottom. He asks her about the driver first.

[Officer Ron Serna]

Can you describe the thing?

[Jill Bargainier]

Long.

[John Wickstead]

Long.

[Jill Bargainier]

That one.

[Officer Ron Serna]

It is very short. The shade, the neat look. Cut.

[Marks Howell]

Where are you at?

[Jill Bargainier]

Next? Long.

[Jeff Ashebranner]

She says the driver's hair is long and dirty.

[Narrator / Michelle Pitcher]

He homes in on some other details.

[Officer Ron Serna]

So anything that stands out about his cold.

[Jill Bargainier]

He can't sleep.

[Marks Howell]

Oh yeah.

[Officer Ron Serna]

In a moment I'm going to ask you to calm down a little further. We're now looking towards the lower part of his body, his legs and his feet. If you're able to visualize anything or see anything that stands out to so that you can call.

[Marks Howell]

Just one hour.

[Jill Bargainier]

Why does he get a drink?

[Officer Ron Serna]

You told me something in your song.

[Jill Bargainier]

A beer.

[Officer Ron Serna]

Enjoy. What kind of tea?

[Jill Bargainier]

Big, Big brown Bear bottle. Where is he so early in the morning?

[Officer Ron Serna]

There. You just revolve.

[Jill Bargainier]

We'll put it back

[Michelle Pitcher]

then.

[Narrator / Michelle Pitcher]

Serna asks Jill to focus on the passenger again. He asks about his hair a lot like his friends.

[Officer Ron Serna]

When you say like his friends, do you mean dark?

[Jill Bargainier]

No.

[Officer Ron Serna]

Can you see the color?

[Jill Bargainier]

Dark.

Not black. Not all black. Like darker. Like dark brown. My solid black.

[Officer Ron Serna]

Can you tell how long his hair is? If he has it neatly cut into the trunk.

[Jill Bargainier]

I see it.

To his shoulders.

[Jeff Ashebranner]

She says the passenger's hair is a lot like his friend's, but dark brown. Long down to his shoulders.

[Officer Ron Serna]

Is there anything about his face that you can tell?

[Jill Bargainier]

He turns. That's an.

[Officer Ron Serna]

Yes. Brown ones.

[Narrator / Michelle Pitcher]

The hypnosis session doesn't uncover any new explosive information. Jill says she felt like she could see the scene a lot better, but there are still certain parts she's unsure about.

[Jill Bargainier]

I don't remember. Learned.

Now it seems like he picked something up.

[Marks Howell]

Okay.

[Officer Ron Serna]

Oftentimes, I told you before I brought you out with hypnosis, you might find yourself just recalling things, things that might not even have to do with the actual incident itself. You know, you might be at home doing an everyday chore, and something might come to you about that incident or about anything else. It's almost a phenomenon the way that happens, but it does.

[Narrator / Michelle Pitcher]

I asked Marks what he thought about Jill's hypnosis session. He'd reviewed the whole thing.

[Marks Howell]

It was his one and only hypnosis session he had ever conducted, and I'm going to say he did a pretty decent job of it. Is there some things that I would have done different? Yes. Not a lot, but yes, there is, because I've been down this road right here.

[Narrator / Michelle Pitcher]

I also reached out to Jill and Officer Cerna. Jill didn't respond, which I understand. She's been asked to live in that moment for so long. Officer Serna said he doesn't comment on his past cases. Regardless, the hour Jill Bargainier spent with the Farmers Branch police hypnotist will loom over the case in the years to come. But for now, investigators seem no closer to an answer. A lot of people have been interested in Charles Flores case over the years.

[Jeff Ashebranner]

This includes people who study the science of memory and how it's used in our criminal justice system. Memories are tricky, but that's not always easy for people to grasp. When justice is on the line, you

[John Wickstead]

have to understand what science says. I don't care which side it helps. It probably sounds like I'm just trying to make myself sound good, but I'm not. I'm literally that. Like, the science is way more interesting than how prosecutors and defense attorneys think about memory. The truth is way more interesting than that.

[Narrator / Michelle Pitcher]

That's John Wickstead. He's an expert in memories.

[John Wickstead]

My name is John Wickstead. I'm a professor at the University of California, San Diego. My current title is Distinguished Professor. I've been there for a long time. I've done work on the basic mechanisms of memory. Like, the first 20 years of my career were focused on that cognitive models of memory, the neuroscience of memory, that sort of thing. Nothing about memory in the real world. But then about 13 or 14 years ago, I started getting involved in memory in the Real world and bringing that basic science perspective to bear on the question of eyewitness memory.

[Narrator / Michelle Pitcher]

Forensic experts have known for years that eyewitness memories can be flawed. More than 1200 people have been exonerated in the US after being convicted based on a mistaken witness ID. Many more had their convictions overturned because of perjury or false accusations. There are countless incentives for witnesses to lie to police, to protect themselves or others, to get reward money, or out of fear that they'll put themselves in harm's way. But even those eyewitnesses who are doing their best to be truthful can be wrong. Our memories degrade. They change. And our confidence in what we recall has very little to do with accuracy.

[John Wickstead]

The complexity of memory is mind boggling. Most people don't understand, but it is.

[Narrator / Michelle Pitcher]

Wickstead's current professional obsession is directly related to the case against Charles Flores. His research has shown that not only is the first recollection of something the most accurate, but it can reliably point to guilt or innocence. He'll explain more.

[John Wickstead]

The basic idea is that's where you get the most reliable information, right? That's before much forgetting has happened before. Much contamination. Memory contamination has happened. That's where you get the most reliable information.

[Narrator / Michelle Pitcher]

And then, and here's the kicker, stop asking them.

[John Wickstead]

Basically, test a witness's memory only once, because even that test changes. It doesn't leave their memory the way it was. It changes their memory, especially for the people in the lineup. And, you know, so if that suspect's innocent, you just put that face in that witness's brain. You know, you can't fairly test their memory again and get more reliable information. You can unfairly test it again and get less reliable information.

[Narrator / Michelle Pitcher]

This is a relatively new point in the science of eyewitness testimony, which previously cast doubt on memories placed in the courtroom.

[John Wickstead]

Before that, it was just, you know, eyewitness memories. Unreliable. Don't listen to eyewitnesses. No distinction between the first test early in the police investigation and the last test at trial. One, two, or three years later. No distinction about that. Just eyewitness memories, like sending innocent people to prison. It's unreliable. Let me tell you the thousand ways that eyewitness memory is unreliable. That's what the message was previously. And the new message wherever you look is it's important to draw a distinction between the first test and the last test because the first test minimizes forgetting and contamination.

[Narrator / Michelle Pitcher]

In criminal cases, that last test is often on the witness stand.

[John Wickstead]

And the way I would say it is on that first Test. There's a diagnostic memory signal in the witness's brain, one that can help the prosecution or the defense. Just like DNA can help the prosecution or defense, so can fingerprints. So can memory. It's reliable information. You know, caveats out the wazoo, but, you know, boiling down to a simple statement. It's more reliable than we previously thought, and it can port in the direction of guilt or innocence.

[Narrator / Michelle Pitcher]

So he says the best information investigators got from Jill Bargainer came from the very first questions they asked. Two white guys, long hair. The thing is, that's not what she recalled in the months and years after. We'll get into that later. But to Wickstead, Jill's early statements point in the direction of Charles Flores's innocence. Memories get even more complicated when our emotions get involved. This is what Holly Bowen focuses on. She's an associate professor of psychology at smu.

[Holly Bowen]

So what we know about memory and in what situations, it can be kind of contaminated or interfered with. So we know that memory is not just this video recording of everything that happens and you just play it back. But it's actually this reconstructive process where you are kind of piecing things back together. And sometimes in certain circumstances, we know that, you know, those pieces can be interfered with, or new information can be brought in or wrong information can be brought in, depending on what has happened, you know, and times that you have retrieved that memory in the past.

[Narrator / Michelle Pitcher]

Take what Jill said about the VW

[Jeff Ashebranner]

Bug that Rick Childs drove to Bergen Lane, which you heard about in the first episode. Jill described in the hypnosis session a pink and purple car, but that's different from what she told police she saw on the morning of the murder. That day, she described the car as pink and yellow. But in the days between the crime and her hypnosis, the Dallas Morning News had run a description of the car, saying it was pink and purple. It seems possible Jill's memory of that morning was already starting to shift based on the new information she was getting.

[Michelle Pitcher]

Like Wickstead said, memory is complex, and

[Narrator / Michelle Pitcher]

investigators have to decide when to trust someone's memory and. And when to disregard it.

[Wes Ferguson]

Okay. Well, in this case, they decided to disregard Jill's memory instead of trusting it.

[John Wickstead]

Yeah, she said it's a white guy with shoulder length hair. Okay. And then they hypnotize her. And the whole hypnosis session, she sticks by that story. After that hypnosis session, she makes a composite sketch. It's still a white guy with shoulder length hair.

[Narrator / Michelle Pitcher]

But when police showed her a new lineup they didn't include any men who

[Michelle Pitcher]

fit the description she gave.

[Narrator / Michelle Pitcher]

Instead, it's all Hispanic men, bald or with short cropped hair. Charles Flores's Picture is number two.

[John Wickstead]

A cardinal rule, science based rule since 1988. It was there in the first consensus statement is everyone in the lineup should match the witness's description of the perpetrator. That's a fair lineup. That recommendation first came out in 1998, and it's been in every consensus statement ever since. Now, why? Why should everyone in the lineup match the witness's memory of the perpetrator? Well, one reason is the witness just told you what's in her memory, right? And like, it doesn't make sense to put faces that don't match that description. I mean, she might be right, she might be wrong, but that's what's in her memory and she's telling it to you. There's not a different face in her memory. Not yet, anyway.

[Jeff Ashebranner]

Last time you heard from Jeff Ashebranner, who was a sergeant with the narcotics department back in 1998, he said that they got Charles Flores's picture from the Irving police when they asked about the identity of someone nicknamed Fat Charlie. Narcotics officers showed the homicide detectives this picture, and Aschabranner said that they balked at first. It didn't match up with what neighbors said they saw. And Jill wasn't the only one who caught a glimpse that morning.

[Narrator / Michelle Pitcher]

Michelle Babler was running late the morning of January 29th. Her two sons were already waiting in the car when she hurried out of the house around 7:35am as she clicked her baby into the car seat, she saw a multicolored VW Bug pull up in front of her neighbor's house across the street. She told police that two white men got out, but her physical descriptions of them were generic. No mentions of whether they had long hair or were bald or fat or thin or anything like that. She told police one of the men looked like he was wearing tan coveralls like a painter would wear. Her 8 year old sons were waiting for their mom in the car. They said that they also saw the men. One said that they were wearing black clothes and had gloves on. The other told police the driver was wearing all black and the passenger had brown hair. They didn't linger. Michelle Babler drove her kids to their elementary school a couple towns over in Coppell, where I actually grew up, but I didn't know the family.

[Wes Ferguson]

All right, that's witness Michelle Babler and her kids.

[Podcast Announcer]

Now let's go back to the witness

[Wes Ferguson]

you've heard them most about so far, Jill Bar.

[Podcast Announcer]

Now her husband enters the picture.

[Narrator / Michelle Pitcher]

Jill Bargainier, the hypnotized neighbor, had a husband named Robert. He was on his way out the door around that time, too. 7:25 or 7:35, he heard a big thud from next door. He said he assumed Bill was doing some plaster work and that he or some equipment had fallen. He walked toward the Black's house and shouted Bill's name, but he didn't get a reply. That's when he noticed the VW bug in the driveway. He didn't see the men.

[Podcast Announcer]

Jill saw the bug pull up that

[Wes Ferguson]

morning at 6:45, but Michelle Babler saw the bug pull up around 7:30, maybe a little after.

[Michelle Pitcher]

So that's obviously quite a difference, especially because one of them would have been before sunrise.

[Narrator / Michelle Pitcher]

So it's questionable how you could have

[Michelle Pitcher]

seen if you were standing in the house with all the lights on, you look out the window. If it's dark outside, you're going to

[Narrator / Michelle Pitcher]

see your reflection back.

[Michelle Pitcher]

So that has been an unanswered question this entire time about why those times don't align. There was one suggestion at the end

[Narrator / Michelle Pitcher]

of trial that maybe the men left

[Michelle Pitcher]

and came back, and that's the only

[Narrator / Michelle Pitcher]

thing that was offered.

[Michelle Pitcher]

So there are a ton of tiny discrepancies in the neighbor stories that just.

[Narrator / Michelle Pitcher]

They make the picture a little uncomfortable.

[Michelle Pitcher]

It just doesn't all fit together. So it's hard because we, like the police, are left kind of having to pick and choose what we think is

[Narrator / Michelle Pitcher]

most credible and compelling, what we choose to believe.

[Wes Ferguson]

Are there any explanations for these little discrepancies?

[Narrator / Michelle Pitcher]

No.

[Michelle Pitcher]

In the absence of physical or DNA evidence, it's not just a he said, he said, It's a he said, he said, she said, they said he said. It's so many players saying so many things, and it's really hard to kind of reconcile all of it.

[Narrator / Michelle Pitcher]

And I think that that's why people have so many opinions on this, because

[Michelle Pitcher]

we're all picking and choosing different things

[Narrator / Michelle Pitcher]

to think are important or credible.

[Wes Ferguson]

That's why Charles is on death row and why we're still talking about it.

[Michelle Pitcher]

Mm.

[Jeff Ashebranner]

Maybe the passenger was wearing tan coveralls

[Narrator / Michelle Pitcher]

and a black coat.

[Jeff Ashebranner]

So Michelle Babler and her son's story

[Narrator / Michelle Pitcher]

don't contradict each other.

[Jeff Ashebranner]

Or maybe the quirks of memory led each person to recall a slightly different version of the same event.

[Narrator / Michelle Pitcher]

Remember, after her hypnosis interview, Jill Bargainier still didn't pick Charles Flores out of the lineup. But police Issued a warrant for his arrest two days later. Anyway, some other leads had convinced them that despite the discrepancies in what Betty Block's neighbors remembered, Charles Flores was their guy. For one thing, he had the bug.

[Wes Ferguson]

Here's Charles Flores talking to Michelle. She went to see him in prison, where he's been held in solitary confinement since 1999.

[Charles Flores]

He calls me and he tells me he had that little Volkswagen that he was riding around, you know, driving around, and he said, hey, man, I'm over here. I'm doing this and that. I'm going to park the Volkswagen behind the trailer. Because where we were at, that was a street that ran behind where the Trader Houses were, so you could park on it, right? And he had done this before. And I'm like, all right, that's cool. Don't, you know, no big deal. And he told me he was riding with somebody else, yada, yada, yada. And I'm like, okay. I had no idea that they done went and did that in that damn car. That's how I got stuck with the car.

[Narrator / Michelle Pitcher]

It didn't take long for Charles to learn that he was being implicated in

[Charles Flores]

the murder that afternoon or that evening. Another friend named Ray, he's passed away, right? He passed away, like, in 2000, 2001. Ray Graham. He called me, and he's like, man, they're looking for you. Because he knew all of those people. He knew Rick, and he grew up in Farmer's Branch, so he knew Jackie, he knew Gary Black, he knew Doug Roberts. He knew all the people he went to school with. And he's like, they're looking for you. They say that you broke into a house and killed an old lady. I'm like, what the fuck are you talking about?

[Narrator / Michelle Pitcher]

Charles Flores was almost 30, living with his wife and her three kids in a trailer home in the nearby city of Irving. He worked for his dad's roofing company. But he also had a temper, a criminal record, and a meth habit. He was moonlighting as a dealer.

[Charles Flores]

I was really a different person. And I used to party all the time. That's what it was, right? You know, I got into, you know, partying, drinking and smoking and all that stuff when I was a teenager. And then it just grew more and more and more, and I didn't think that I really had a problem because everybody that I knew was doing it. You know what I'm saying?

[Narrator / Michelle Pitcher]

He was no stranger to the police, but he said that they got it wrong this time, that he didn't know anything about a murder, he had a choice. He could stay and face the murder rap or he could run rather than stick around until officers showed up on his doorstep. He fled.

[Charles Flores]

People say you run because you're guilty and this and that. But yeah, you also run when you're afraid. You also run when you know you've been set up. You also know when you're the only Mexican in a group, a whole bunch of white people and you supplying them drugs. You know, I was afraid.

[Narrator / Michelle Pitcher]

Next time on the Unforgotten.

[Charles Flores]

I know how it looks because I know they're looking for that car it's involved in. The house has been broken into and a murder has been committed. And I'm sitting with the car and I'm like, man, this done set me up.

[Narrator / Michelle Pitcher]

Charles has done many stupid things, but he's never killed anybody.

[Quince Advertiser]

Flight is always evidence of guilt.

[Wes Ferguson]

Thank you for listening to the Unforgotten, a Free range production. Season 5 Riding Shotgun was created in association with the Texas observer, and the season is written, reported and hosted by Michelle Pitcher, a staff writer for the observer, editing by Aislin Gaddis, audio engineering and sound design by Austin Sisler with Eside Studios. I'm executive producer Wes Ferguson. Stay up to date with us when you sign up for our [e-mail].