Charles Flores, the next person in America scheduled to be executed, has filed his final appeal

The next person in America scheduled to be executed has filed his final appeal, arguing that his conviction for murder was based on “flimsy” evidence and was racially motivated.

Charles Flores, a Texas inmate who is schedule to receive a lethal injection on June 2, filed a legal brief to the Texas Court of Criminal Appeals late Thursday afternoon. He currently has 13 days to live.

As Fusion reported earlier this month, Flores was convicted for the 1998 murder of Elizabeth “Betty” Black in a Dallas suburb. He was sentenced to death even though the prosecution presented no physical evidence linking him to the crime, and the only witness who saw him at the scene was improperly hypnotized by police. Meanwhile, Flores’ white co-defendant, who was also charged with the murder, pled guilty, received a 35-year prison sentence, and is now out on parole.

The brief Flores’ lawyers filed Thursday (scroll down to read the whole thing) is an application for a writ of habeas corpus, essentially a petition asking the Texas court for a new trial or at least to postpone the execution to allow a hearing on the evidence.

“In a case involving drugs, money, greed, and family, Flores was implicated based solely on conduct preceding the murder and conduct that occurred many weeks following the crime,” his lawyers write. “No gun—no bullet—no money—no fingerprints—no DNA—no map—nothing, absolutely nothing directly links Flores to this crime.”

What is likely Flores’ strongest argument concerns the hypnosis used in the investigation of the case. Jill Barganier, a neighbor of the victim’s, was hypnotized by police officers to help her recover her memory of the morning of the murder. (A video of the hypnosis session is below.) Even after the hypnosis, she couldn’t pick Flores out of a police lineup. But 13 months later, when she was on the witness stand, she said she was “100% sure” she had seen Flores. Barganier was the only eyewitness who said she saw Flores at the scene of the crime.

Now, Flores’ lawyers are arguing that Barganier’s testimony should be thrown out under the state’s junk science law. The brief includes an affidavit from Steven Lynn, a Binghamton University professor who is an expert in hypnosis and recovered memories. According to Lynn, who reviewed the trial transcript and the video of the hypnosis, new scientific research on hypnosis since the ’90s suggests that the hypnosis conducted on Barganier could have led to the creation of false memories.

“Serious consideration should be given to the possibility that a miscarriage of justice was perpetrated in the ease of Mr. Flores,” Lynn writes. Specifically, he says, the police officer who conducted the hypnosis used a technique known as the “movie theater technique,” in which he encouraged her to imagine she was in a movie theater watching a movie of her memories. That strategy, Lynn says, has been discredited, and can cause people to have unwarranted confidence in false memories. “Clearly, the techniques that were used to refresh Ms. Bargainer’s memory would be eschewed today by anyone at all familiar with the extant research on hypnosis and memory,” Lynn writes.

Without the testimony of Barganier—the only witness who identified him at the crime scene—Flores would not have been convicted, his lawyers argue.

“[Barganier’s] flawed testimony is literally the only glue holding together the States tenuous circumstantial case. Without it, there is no way a Texas jury would have found Flores guilty of capital murder,” the brief states. (Barganier did not respond to several requests for comment last month.)

The brief also spends considerable time discussing Flores’ childhood. He says he was given drugs by his brothers at an early age, and was huffing gas to get high when he was only five. Another psychologist who the defense had evaluate Flores said that this may have led to abnormal brain development. One of Flores’ earliest memories, the brief notes, is a violent fight between his parents. Flores also reported that he was sexually assaulted by relatives.

But Flores’ trial attorneys didn’t investigate any of this or present this mitigating evidence to the jury. During the sentencing phase of his trial, Flores’ attorneys didn’t call a single witness. They didn’t try to contact any of his brothers or childhood friends.

“Had the jury heard about Flores’s upbringing, childhood drug use, and brain impairment, it would have been presented with a vastly different picture than the State’s depiction of a violent, remorseless, inhuman monster. Because Flores’s attorneys did little to challenge the State’s narrative, the jury was left with no real options,” the brief states.

Finally, the brief argues that the deep discrepancy in sentencing that Flores received as compared to his white co-defendant, Richard Childs, means the death penalty as applied to him is unconstitutional. Childs, who was also charged with the murder and pled guilty to shooting Black, received 35 years in prison, served 17, and is now out on parole. (In a later appeal, however, Childs claimed that it was in fact Flores who shot Black, not him.)

“The only real difference between the two men is the color of their skin,” Flores’ brief states.

Since 1973, it notes, almost two-thirds of the defendants sent to death row from Dallas County have been nonwhite, even though the county has a majority white population. And Dallas County has never sent a white inmate to death row for killing a minority victim.

The brief also cites Fusion’s interview with the lead prosecutor in the case, Jason January, who told me that “If you talk to the jury, they didn’t much care whether [Flores] pulled the trigger or not, he was participating fully and wholeheartedly in the crime.”

“The jury might not have cared, but the constitution does,” his lawyers respond in the brief.

The state will likely file a response to the brief within the next day or so, and a ruling from the Texas Court of Criminal Appeals is expected next week.

Gregory Gardner, one of Flores’ attorneys, says he’s optimistic about the application’s chances. If the Texas court denies the brief, Flores’ lawyers are likely to appeal to federal courts and eventually the U.S. Supreme Court. Recent opinions by Justices Stephen Breyer and Ruth Bader Ginsburg questioning the constitutionality of the death penalty suggest that they might be interested in the questions of race involved in the different sentences Flores and Charles received.

“We think there’s a potential they might want to revisit that,” Gardner told me. “It’s just so unfair and arbitrary who gets put to death and who doesn’t… even if you don’t want to look at the race, it’s just so massively disparate that it shocks the conscience.”

Flores’ lawyers have also filed a petition for clemency to the Texas Board of Pardons and Paroles, but clemency for Texas death row inmates is exceedingly rare.

While Flores watches his final appeal play out, he’s been given some very bad news: His father Catarino, who has been in a nursing home, died yesterday morning. “For the circumstances he’s doing well, but it’s been kind of a lot all at once,” Gardner said. “He’s hanging in there.”

Here’s Flores’ full application for a writ of habeas corpus:

Casey Tolan is a National News Reporter for Fusion based in New York City.