Unspeakable Times

Hypnosis Played A Key Role In Ted Bundy's Conviction And Overturned Appeals 

Christopher Shultz
Updated February 20, 2019 4.8k views
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The Netflix documentary Conversations with a Killer: The Ted Bundy Tapes effectively reintroduced the world to one of the most infamous serial slayers of all time. The series demonstrates both Bundy's sheer viciousness and his slipperiness when it came to admitting his guilt, something he refrained from doing until he was nearly at his end. In the recorded conversations featured in the documentary, Bundy instead attempts to prove his innocence by humanizing himself and telling his "side" of the story, only talking about his actions in an oblique way, as though he were profiling the "real" culprit. 
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The Ted Bundy Tapes covers Bundy's temporary stays of execution due to questions of competency during his initial trial, but it doesn't focus on his numerous appeals, in which Bundy argued he did not receive a fair trial and tried to get his conviction overturned. Among the innumerable "injustices" Bundy noted, he repeatedly argued the use of hypnosis on certain witnesses should render their testimony inadmissible.

Among the persons who provided key information in Bundy's arrest and conviction, four were put under hypnosis during police questioning, court transcripts reveal: Nita Neary, who observed Bundy at the Chi Omega sorority house at Florida State University during his raid in 1978; Clarence Anderson, who saw Bundy speaking with 12-year-old Kimberly Leach outside her school, just before her disappearance and slaying; and two teenagers, children of Detective Parmenter of the Jacksonville Police Department, who interacted with Bundy in a shopping mall parking lot - he had approached the 14-year-old girl, but fled when her brother confronted Bundy. The pair made a note of his license plate and reported it to their father; the plates had been taken from a car near the Chi Omega sorority house just after the slayings.

Those familiar with The Ted Bundy Tapes will recognize Nita Neary. She appears in the fourth episode of the documentary series, titled "Burn Bundy Burn," which documents in great detail Bundy's first trial for the slayings of FSU students Lisa Levy and Margaret Bowman. Prosecutor Larry Simpson called her one of the "best witnesses" the prosecution had because she could place Bundy at the scene. As the documentary shows, however, Bundy's defense attorney, Robert Haggard, cross-examined Neary, suggesting she did not get a good look at the man she saw breaking into one of her sorority sister's rooms on the night of January 15, 1978; thus, her testimony was unreliable.

Bundy further attempted to rip holes in Neary's statements during his first appeals hearing in 1984, zeroing in on the use of hypnosis during a second questioning session one week after the events at the Chi Omega house. Neary initially told police she saw a man standing outside a door in the sorority house, but while hypnotized, elaborated the man had dark hair. Bundy insisted this new info from Neary was a product of coercion on the part of the police hypnotist. Indeed, the hypnotist had made seemingly suggestive remarks in the hopes Neary would identify one of the Chi Omega janitors, who was a suspect at the time of her questioning (it was not yet known that Bundy was in Florida at the time).

Bundy also cited numerous contentious court cases in which testimony obtained under hypnosis came into question, including The People v. Shirley, a California case, and Michigan's People v. Gonzales. In many of these cases, the court found statements retrieved from hypnotized witnesses was admissible, but only if certain safeguards against misleading the witness in such a suggestible state were taken. As such, Bundy argued that because the police hypnotist used suggestive language while questioning Neary, her testimony should be stricken from the record.

Ultimately, this gambit did not work. The Florida Supreme Court ruled the possible evidence of coercion on the part of the police hypnotist did not fundamentally change Neary's overall testimony - in other words, the man Neary described to the police fit Bundy's overall appearance, regardless of the dark hair color she later recalled while under hypnosis. The court also ignored Bundy's other claims of an unfair trial and overturned his appeal. 

Undaunted, Bundy once again challenged the use of hypnosis on witnesses during his 1985 appeal over his conviction in the Kimberly Leach trial. He not only objected to Clarence Anderson's hypnotically induced testimony, but also that six months had elapsed from the time Anderson witnessed a man fitting Bundy's description talking to Leach and his subsequent statement under hypnosis. Bundy insisted that, because of this time gap and the "massive amount of information about the events that Anderson had ingested," the testimony should have been ruled inadmissible.

Though the available court documents do not highlight any criticism on Bundy's part of the Parmenter children's testimony, they do reveal he again cited other court cases in which the use of hypnosis as a viable means of obtaining evidence came into question, establishing an overarching attempt at disenfranchising any information collected from hypnotized witnesses.Article Image And yet, the court once again overturned Bundy's appeal, pointing to far more cases in which hypnotically obtained testimony was ruled admissible.

Furthermore, the court determined the additional details Anderson recalled while under hypnosis were not significant enough to warrant throwing out his entire testimony - he only remembered the football jersey Leach wore had a number of 63 or 68, and that the man he witnessed talking to Leach wore a pullover sweater, information that neither contradicted nor undermined his initial observations.

The issue of hypnosis arose several more times, according to available court documents - in Bundy's petition for a writ of certiorari in 1986, his appeal to the United States District Court for the Southern District of Florida in 1987, and his appeal to United States District Court for the Middle District of Florida in 1988; all were denied or overturned. Bundy also appealed to the United States Supreme Court, but on the grounds that he had been mentally incompetent during his first trials; this too was ineffective, and the state of Florida followed through with Bundy's capital punishment sentence on January 24, 1989.

Numerous attorneys, law enforcement agents, and psychologists side with Bundy on the hypnosis issue since memory doesn't work the way many people think it does. Memory isn't composed of "recorded" observations, but rather a tapestry of observations, personal morals, and one's own life experiences; as such, hypnosis won't necessarily "unlock" previously forgotten or blocked memories, and the risk of memory fabrication while hypnotized is significant. Because of these findings, using hypnosis during witness questioning remains controversial.

In May 2018, two Texas inmates awaiting capital punishment challenged the practice, insisting it was "junk science." In February 2019, a federal court threw out a 1994 conviction, finding the prosecution withheld evidence by not disclosing that one of their witnesses had undergone hypnosis during their testimony.

In Bundy's case, the veracity of his arguments hardly mattered, as he was indeed guilty of the events for which he was tried and convicted. It is also likely he was guilty of the numerous other slayings he confessed to just prior to his execution. But Bundy's criticism of using hypnosis on witnesses does at least suggest Judge Edward D. Cowart's final words to Bundy may have been accurate: "You'd have made a good lawyer. I'd have loved to have you practice in front of me. But you went the wrong way, partner."