Monday 10.16.17. We have had a 4-day break since Day 2 of the evidentiary hearing. I would not have known before but after the stress and physical effort of the whole hearing situation – beginning my day at 4AM (after 4 hours of sleep) and all day court where I get back to the tank at 6-7PM, it is exhausting mentally and physically. The break in between the testimony-filled days of the evidentiary hearing was positive. This allowed me to catch my breath as I feel like I’ve been going as fast and as hard as I can since January 2017. So the break was something I needed and I have had time to think about the first 2 days of the hearing – in depth and make note of what I think can help us today.
As noted above, I was up at 4AM starting my day. By 5AM I was in a holdover cell on the ground floor of this building with 10 other men. By 6:30AM, we have walked through the underground tunnels that connect the jail and the court house and are in the next holdover cell on the ground floor of the Dallas county courthouse building. After an hour wait, we are taken up to the different floors where the court rooms are and I am outside the 195th District Court, on the 7th floor by 7:30AM. The evidentiary hearing is scheduled to begin at 9AM. I use this time to collect my thoughts and set my focus on the Huge Event that is set to begin in a short time. We have 2 experts scheduled, including Dr. Lynn who’s our hypnosis expert and the prosecution will call their own, Dr David Spiegel.
Dr Lynn and Dr. Spiegel have history together. In a New Jersey case where the NJ Supreme Court concluded that “hypnotically refreshed witness testimony” should not be admissible in court proceedings, Lynn and Spiegel went head to head. Lynn was an expert for the defense and opined that hypnotically refreshed testimony is not reliable and under no conditions should be admissible in court. Spiegel was the prosecution’s expert and while he acknowledged there were some issues with hypnosis, the problems did not significantly differ from problems related to memory in general. In August 2006, the NJ Supreme Court ruled upon State vs. Moore and accepted Dr Lynn’s conclusions and held that hypnotically refreshed testimony is inadmissible in court. This is the last appeal in the USA that addressed the issue of hypnosis until now – and the issue will be addressed again.
When I learned of the history Dr Lynn and Dr Spiegel had in the Moore case I had a feeling that my case would give Spiegel another shot at beating Lynn and the “rematch” opportunity motivated Spiegel more than anything else. My intuitive feeling would prove 100% correct as the day’s testimony played out. Spiegel has a personal issue, a “grudge” against Lynn and my case will give Spiegel a chance to defeat Lynn. This surreal situation between Lynn and Spiegel was something I knew nothing about. We did not know Spiegel was the prosecution’s expert witness until a few weeks before the hearing. And as it would play out the personal issue with Spiegel only increased the level of excitement in the court room.
The third and final day of live testimony in my evidentiary hearing began with Dr. Steven Jay Lynn presenting expert testimony and my lead attorney, Mrs. Gretchen Sween conducting the direct examination of our expert witness. Dr Lynn is a supremely intelligent and qualified distinguished professor whose specialty is Hypnosis.
Dr Lynn began his testimony by stating his scientific studies have led him to conclude that overall there are serious problems in memory retrieval with/through the use of hypnosis. Lynn testified that in 1976, he received his PhD and believed in hypnosis, including its use in retrieving “lost memory”.
But as his work continued, he began to change his mind.
Dr Lynn found that the use of hypnosis increases the recall of false memories that are now mixed with true memory and because of hypnosis there is no way to separate the two.
Furthermore, hypnosis creates a false sense of confidence in the belief that what a witness remembers is accurate. This is called “memory cementing”, which is an unwarranted confidence in the recall regardless of it being accurate or inaccurate. It is a proven fact that hypnosis causes people to believe they can remember more about a witnessed event which causes them to use their imagination, or to “confabulate”. Confabulation is when the subject fills in the gaps in their memory with pseudo (fake) memories.
When asked about the hypnosis session administered to Jill Barganier, Dr Lynn had many issued with it. Lynn’s expert opinion was that Farmers Branch Police Officer Alfredo Serna was NOT adequately trained to administer hypnosis, especially the Movie Theater Technique, because of the manner in which it asks the subject to use their imagination (you’re in your own movie theater etc.) while asking them to recall accurate memories. The movie theater technique sets the subject up to imagine fake memories and then believe they are true.
Contrary to what the prosecution’s expert witness Dr Mount said, it was not acceptable that Serna was part of law enforcement. Nor was it acceptable that the #2 investigator Baker was in the room when Barganier was hypnotized. Nor was it okay to perform hypnosis in the Police Department in Farmers Branch. All of these guideline violations are subtle yet powerful cues that pressure the subject into “remembering more” to help the police catch the culprit or even identify someone.
Dr Lynn’s expert opinion was that the Zani hypnosis guidelines/safeguards were not followed during the hypnosis of Barganier. Dr Mount testifying that they were followed is wrong and not accurate.
Dr Lynn also had a serious problem with the inadequate pre-hypnosis interview that Serna conducted on Barganier. This pre-hypnosis interview with a subject to be hypnotized should be as detailed as possible to record as much as what the witness remembers before they are subjected to hypnosis. Dr Lynn opined that “(Serna) did not conduct a sufficient or competent pre-hypnotic interview. A competent pre-hypnotic interview would be to collect as much information from the witness pre-hypnosis”.
Even so, after Dr Lynn reviewed the hypnosis information, he determined that there was a list of “new information” that Barganier recalled during the hypnosis session that Lynn obtained from the hypnosis video and transcript of the video. This fact was in direct contrast to Dr Mount and the prosecution’s claim that the hypnosis did not cause Barganier to recall any new information.
And finally Dr Lynn got to the extremely damaging post-hypnotic suggestion that primed Barganier to “suddenly remember” me as the person she thought she saw at the scene on the morning of the murder. Serna told Barganier: “you will also remember everything you’ve said in this session and you might find yourself recalling other things as time goes on.” And “you’ll remember everything that was said in this interview, and, as I said, you WILL be able to recall more of these events as time goes on”. And finally “you might find yourself recalling things…. You might be at home one day and something might come to you about that incident. It’s almost a phenomenon the way that it happens, so it’s not uncommon to just remember something after the fact, after the (hypnosis) session.”
Because of this Dr Lynn concluded that Jill Barganier’s testimony was unreliable and her in-court identification was caused by the hypnosis she underwent. Dr Lynn was a powerful expert witness who presented new scientific evidence that hypnosis is “junk science” and its use on the state’s witness Jill Barganier rendered her testimony unreliable. Dr Lynn entered into the hearing proceedings record scientific studies that prove the science has changed in the field of hypnosis since 1999, when I was tried and convicted.
The next person to testify was Dr David Spiegel, the prosecution’s hypnosis expert. From the beginning, Spiegel voiced his disagreement that Dr Lynn’s findings on hypnosis were “wrong”. While Dr Spiegel had no scientific studies or experiments to base his opinion upon. In no time, Spiegel made it clear that his one and only objective was to disagree with everything Dr Lynn opined upon – regardless if his “differences in expert opinion” were fact-based or not.
Dr Spiegel testified that he reviewed the hypnosis information from the Farmers Branch Police Dept. and what the prosecution labeled corroborating evidence in the form of various “voluntary statements” that were never entered into evidence at trial in 1999. From this information, Spiegel opined that Barganier’s testimony was reliable.
What was most telling and obvious in his testimony was that in the Moore case, Spiegel testified to specific facts about hypnosis including that it is well known fact that memory decays over time, affecting the accuracy. Yet, in his testimony today, he says that memory does not always degrade. There are times when memories can improve over time.
Spiegel also opined that “hypnosis is not likely to cause imagined recollection” or confabulation. When in the Moore case, Spiegel acknowledged identifiable problems with forensic hypnosis such as confabulation and memory hardening – when a witness believes a false memory is true and nothing can change his mind. These are critical points that undermine his entire testimony and my co-counsel Carlotta immediately points these things out in her cross-examination. After these non-truths were put on the evidentiary hearing record, Dr Spiegel became a hostile-combative witness and refused to acknowledge known facts about Barganier’s hypnosis session. By the end of Carlotta’s cross-examination, Spiegel was in a puddle and the knock-out blow was when Carlotta asked her final question which was: “and Dr Spiegel, is it true that you were also the prosecution’s hypnosis expert in Moore vs. State?” To which Spiegel replied “yes”. Then Carlotta asked him “and isn’t it true that in Moore vs. State, the Appeal Court accepted Dr Lynn’s expert opinion over yours and reversed the case?” At this point, the final question of the cross-examination, Dr Spiegel bowed his head in defeat and replied “yes”.
That was the end of Dr Spiegel’s testimony and whereupon, Dr. Lynn made a quick reappearance and stated on record that he had 14 scientific studies in a folder which he held up high to show the court that were in fact proof that the science has changed since I was tried and convicted in 1999.
At this point, live testimony in the evidentiary hearing to determine whether the hypnotically-altered testimony was reliable was concluded.
At this point, the closing arguments will be delivered orally by my lead-superhero-attorney, Mrs. Gretchen Sween December 4, 2017. This is a tentative date which might be delayed some but we hope that we will have closing arguments in the month of December.
We feel blessed to have had our hearing go so well and we know it’s a matter of time until we win relief and I finally leave this place for good.