In the finale of the Max Original limited series Love & Death (on which Texas Monthly is an executive producer), viewers finally see the bloody axe killing at the heart of the Candy Montgomery case. While everybody watching knew the scene was coming (it had been teased for six episodes), it was still absolutely terrifying—the ferociousness of Candy’s attack was shocking, her savagery beyond doubt.
So (spoiler alert) how in the world did the jury find her not guilty of murder? To understand the acquittal, you have to go back a couple of episodes, to a scene in a dark doctor’s office. Candy, played by Elizabeth Olsen, sits in the office of psychiatrist Fred Fason (Brian d’Arcy James), and closes her eyes. She’d agreed to be hypnotized in order to find out what exactly happened the morning of June 13, 1980, when she went to the house of her friend Betty Gore (Lily Rabe) in Wylie, Texas, to pick up a swimsuit but wound up hacking Betty to death with an axe. Candy and Betty’s husband, Allan, had recently ended an affair—something Allan would insist Betty never knew anything about. But according to Candy, Betty confronted her about the affair early in the visit, leading to a violent fight. Candy had maintained that she acted in self-defense—that Betty had come after her first. But that didn’t explain why Candy whacked Betty repeatedly—41 times, in fact. Why had Candy, as a prosecutor on the show put it, “pulverized Betty Gore’s face into a soft mulch”?
It was Fason’s job to figure this out. In Love & Death’s depiction, he tells Candy, “I want you to pick a point out on the wall, focus on it. Now take a deep breath.” Candy, sitting on a chair across from him, does so, closes her eyes, and seems to fall into a trance as Fason tells her to return to the day Betty was killed. “When I snap my fingers,” Fason directs, “you will begin re-experiencing and relating that time, as you go through it.”
Fason tells her to allow her feelings to get stronger, and within moments, he asks, “What’s that you’re feeling, Candy?”
“Hate.”
“Okay, you hate her. Express your feelings.”
“I hate her.”
“Say it loud.”
“I hate her!”
“Louder.”
“I hate her! She’s ruined my whole life!”
Fason, digging further for answers, asks if she can remember ever being this mad before. “Maybe when you were little? Let’s go back in time.”
Candy is still in her trance. “How old are you, Candy?” he asks. “Four,” she replies. “Why,” he follows up gently, “are you so mad?”
Candy makes a loud “Shhhh!” sound, and all of a sudden the TV screen fills with the memory: Candy lying on a gurney being rushed down a hospital hallway, blood on her face, her mother leaning over her. But instead of soothing her daughter, her mom is badgering her: “What will they think of you in the waiting room? Stop crying! Shhhh!”
Fason asks how it felt when her mother shushed her like that. “I want to scream,” Candy replies. Fason tells her to scream all she wants. Candy does—a wild primal scream that lasts a full six seconds and leaves her doubled over. It’s an emotional catharsis, and Fason is convinced he has found the root of the rage: Betty, Candy insists, had shushed her in the same way during their argument.
Candy is emotionally wiped out, but her main lawyer, Don Crowder (Tom Pelphrey), who knows Candy from their church, is pleased with the session. As he explains to Candy afterward, laying out the road map to her deliverance, “You’re not a sociopath. You just snapped.”
Back in 1980, seemingly everybody in Texas thought the real-life Candy was guilty of murder—everybody, that is, except her lawyers: Crowder, Elaine Carpenter, and Robert Udashen. “It was clear to me it was self-defense,” Udashen, the only surviving member of the team, recently told me. “But from the beginning of our conversations, the what I would call ‘overkill’ nature of what happened was so great that I knew that was going to be a big issue at trial—trying to explain to a jury how this could be self-defense when you’ve got forty-one blows with an axe.”
Udashen knew the team needed a psychiatric evaluation—but he also knew he had to get Candy out of Dallas, because all the newspapers and TV stations were trying to get scoops on the case. He called a friend who was a criminal defense attorney in Houston, seeking a good psychiatrist there with experience testifying in the criminal courts, and got Fason’s name. Fason had a practice in the tony River Oaks neighborhood and also worked as a court-appointed psychiatrist assessing whether defendants were competent to stand trial. In addition (unbeknownst to Udashen) Fason did clinical hypnosis to help Houstonians lose weight or handle stress. After a preliminary session, at which Candy told Fason the same self-defense story she had told her lawyers, the psychiatrist decided to hypnotize her.
“He was trying to figure out about the rage that resulted in all this overkill,” Udashen told me. “So he used hypnosis to try to basically age regress her to try to find out where in her life did that come from.” Age regression is a process by which a hypnotized subject is prodded to relive an event from an earlier time. And, as audiences see in the finale, Candy delivered.
So did Fason. Since the prosecution didn’t object to Fason’s testimony about the hypnosis—which it could have done at the time under the Frye standard, which imposed on lawyers trying to introduce novel scientific evidence the burden of showing that the technique was generally accepted as reliable in that field—his word on her frenzy was gospel. In his testimony, he called what she went through a “dissociative reaction,” as depicted in episode seven. “Mrs. Montgomery emotionally walled herself off from the events of the day,” Fason says from the stand. “It was only when I hypnotized her that she was fully able to access her memory.” Then he tells the story of the gurney, her mother’s “Shhhh!” when she was a child—and, later, Betty’s. “I look at that explosion of violence at Betty Gore as being the result of the anger that had been buried within her and blocked off all that time since she was four years of age.”
It worked. Roughly three hours after the jury retired, it found Candy not guilty. While Candy’s lawyers had done a good job creating reasonable doubt about who hit first—and showing Candy as a nonviolent person with no motive or murderous intent—the case swung on Fason’s testimony. (“Self-defense doesn’t account for forty whacks,” Crowder says at one point in the show. “We need Fason.”) Fason not only explained the whack attack, he excused it.
The strategy was brilliant. But was it bogus? These days we hear a lot about “junk science” used in the criminal justice system: outmoded, subjective, or oversimplified theories and methods explaining, for example, how fires got started or how bloodstains can tell the tale of a murder or how a suspect’s teeth can be matched to a bite mark left in a body. These theories and methods—used by law enforcement for generations—had no science behind them and ultimately sent innocent people to prison and even death row.
There’s no science behind hypnosis either—no data, no uniform method—and studies show it might hurt memory as much as “enhance” it. “Hypnosis is the junkiest of junk science,” says Scott Henson, longtime Austin criminal justice researcher and writer. “You may as well be reading tarot cards.”
The reality is, in 2023, at least 22 states don’t allow into their courtrooms the testimony of witnesses or victims who have undergone hypnosis. Texas is one of the states that still allows forensic hypnosis in the courts, though that might be about to change. While the episodes of Love & Death were streaming over the past few weeks, a bill was working its way through the Texas Legislature that would prohibit the admission into court of any statement from a law enforcement hypnosis session held “for the purpose of enhancing the person’s recollection of an event at issue in a criminal investigation.” As of publication, the bill, sponsored by state senator Juan “Chuy” Hinojosa, had passed both houses and gone to the governor’s desk for his signature. Hinojosa, who was instrumental in creating the Texas Forensic Science Commission in 2005, has made it his mission to change the kinds of evidence that can be used in court. “For many years we at the Legislature have worked toward doing away with junk science and getting rid of evidence that’s not supported by scientific research,” he told me. “Hypnosis is one of those techniques that is used in criminal courts to convict people who turn out to be innocent.”
Hypnotism has always seemed a little dodgy. Its modern-day roots lie with Franz Anton Mesmer, a doctor who in eighteenth-century Paris would don a robe and put groups of sick people into trances, laying on his hands and leading them to moan and groan and sometimes feel better. Mesmer was successful at one thing—using the power of suggestion—but many regarded him as a quack. Mesmerism eventually led to hypnotism, which the nineteenth-century Scottish doctor James Braid called “a simple, speedy, and certain mode of throwing the nervous system into a new condition, which may be rendered eminently available in the cure of certain disorders.” Braid was the hypnotism pioneer who got patients to use their eyes to focus on a bright object, eventually putting them into a sleeplike trance.
Ever since, hypnosis has been used by therapists to induce patients into a kind of altered state, in which the patient’s defenses are lowered and the doctor can make suggestions to change behavior: quit smoking, stop eating so much, relax. That’s called clinical hypnosis, and it’s remarkably effective at helping people overcome their fears and traumas.
But the very things that make hypnosis so good on a couch make it a problem in a court—the brain is a subjective playhouse, especially when a therapist is suggesting things to it. Law enforcement was initially hesitant about the zany technique used in Bugs Bunny cartoons and TV shows like Gilligan’s Island. That changed in the 1970s, especially after kidnappers hijacked a California school bus with 26 kids in 1976—and the bus driver, under hypnosis, remembered the digits on the license plate of one of the kidnappers’ vans. Soon police departments all over the country were exploring how to use this tool to solve crimes.
Marx Howell was a Texas Department of Public Safety highway patrolman in 1979 when he was asked by his bosses to help develop a hypnosis program. Howell was at first skeptical (he told me he thought hypnosis was “voodoo and magic”) but soon came around to how hypnosis could help in an investigation—by relaxing witnesses and helping them remember details of a crime. DPS established a forensic hypnosis program and began training cops and Texas Rangers all over the state. “We had the most thorough, formalized, and monitored program in the United States,” Howell said.
Unfortunately, while hypnotized witnesses and victims sometimes remembered things that happened, they also remembered things that didn’t. It’s a fundamental problem of hypnosis, says Steve Lynn, professor of psychology at Binghamton University (SUNY), who has been studying hypnosis and memory since the early eighties. Before he began, he was like a lot of people—he believed hypnosis helped improve memories. But “from the first study we did,” he told me, “we found quite the opposite—it didn’t. Hypnosis does have therapeutic value, and it is a great vehicle for studying imagination, the effects of suggestion, and other psychological phenomena. But in terms of memory recovery, it’s a whole other story.” Numerous studies have shown that not only does hypnosis not improve memory, it can actually make it worse, because subjects often “confabulate” things—fill in memory holes with things that didn’t actually happen. Worse, because people believe in the power of hypnosis, their confidence in the accuracy of their memories is heightened—which can affect a jury. We know now that memory isn’t a tape recorder and hypnosis isn’t a magic tool to unlock things that were never encoded in the brain in the first place.
In the eighties, some jurisdictions began to sour on the technique. A year after the Candy verdict, the New Jersey Supreme Court set up a six-part test to assess whether to admit testimony from a hypnotized witness. A year after that, the California Supreme Court ruled that the testimony was inadmissible. Other states followed suit.
In 1987, the issue reached the U.S. Supreme Court in a case, like Candy’s, involving a defendant who had been hypnotized. The high court ruled that lower courts couldn’t categorically throw out testimony from such defendants; this would violate the Sixth Amendment right to defend oneself. When it came to testimony from hypnotized prosecution witnesses, the court said it was up to the states to decide whether to allow that, and they could come up with guidelines. Texas did that in 1988, when the Court of Criminal Appeals allowed hypnosis as long as it met certain standards that indicated the evidence’s trustworthiness. The lower court could consider things such as the hypnotist’s training and independence from law enforcement, the presence of recordings of the sessions, the lack of suggestive questions during the sessions, and whether there was evidence to corroborate the hypnotically derived testimony.
For the next thirty years, Texas—led by the DPS—was a hot spot for forensic hypnosis; hundreds of Texas cops got training to help witnesses remember details of crimes. But there were problems in Texas as there were elsewhere, and in 2020, the Dallas Morning News did an in-depth two-part series on the issues with hypnosis. Less than a year later, the DPS stopped using hypnosis in investigations. In the wake of that, Hinojosa sponsored a bill in the state legislature banning the testimony of previously hypnotized witnesses—and it passed both houses unanimously. Abbott vetoed it, saying it was too broad in its limitations of those who had previously been hypnotized.
This session Hinojosa introduced it again; as it heads to the governor’s desk, he says, this time things are different. “I’m confident it will become law,” he said. “I worked with the governor’s office to address the concerns he had last session. The fact is, hypnosis is not reliable, and it doesn’t build confidence in our criminal justice system to allow junk testimony that may end up convicting innocent people.”
So is forensic hypnosis junk science? We know that nationally, at least seven men have been wrongly sent to prison because a hypnotized witness or victim made a mistake. We know this because DNA tells us so. One of the latest cases is that of a Massachusetts man named James J. Watson, who in 1984 was convicted of murder after being identified in court by a witness whose memory had been falsely enhanced by hypnosis sessions. In 2020 Watson was exonerated by DNA and released.
Howell, now retired, bristles when hypnosis is called junk science. It’s not a science, he says, it’s an interviewing technique. “Let me tell you something: Hypnosis does not work every single time. It is an adjunct to good investigations,” he said. “Just because DPS ended that program does not mean that it’s not an effective interviewing tool in some cases where the person’s been traumatized.”
Udashen thinks the term “junk science”—usually reserved for forensic procedures used by law enforcement—is misleading when it comes to Candy’s case. “A defendant has a constitutional right to present testimony on her own behalf,” he says. Udashen, who later taught criminal law at Southern Methodist University and helped exonerate six men who had been wrongly convicted, still believes the hypnosis in Candy’s case was properly done. “I think hypnosis in the wrong hands could certainly be junk science. It’s sort of like a circus trick or a parlor trick. But Candy was hypnotized by a highly trained expert in hypnosis. Dr. Fason interviewed Candy before hypnotizing her and made detailed notes of what Candy told him. Candy also wrote her own narrative for Dr. Fason before being hypnotized. Dr. Fason tape-recorded all of his hypnosis sessions with Candy, and he did not ask her any leading or suggestive questions under hypnosis. I believe Candy’s testimony would be admissible even today under properly drawn restrictions designed to ensure the reliability of hypnotically refreshed testimony.”
But there are fundamental problems with the age-regression technique Fason used to transport Candy back in time to age four. Seven years after the trial, Michael Nash, a psychology professor at the University of Tennessee, published a paper in the American Psychological Association bulletin that analyzed more than sixty studies of adults who had been hypnotically age regressed. “Hypnosis does not yield meaningful increases in memory,” he wrote, concluding, “there is no evidence for the idea that hypnosis enables subjects to accurately reexperience the events of childhood.”
Professor Lynn, who says nothing has changed in the 36 years since Nash’s 1987 paper, points out that the hypnotized can also lie—and get away with it. No one knows if Candy’s mom took her to the hospital when she was four and shushed her in such a haunting fashion that, upon shushed again nearly three decades later, she would suddenly hack a friend to death. Candy, on trial for her life, certainly had reason to make things up.
Henson adds that she might not even have been doing so on purpose. “After you’ve been through that experience with the psychiatrist hypnotizing you and landing on the story, it reinforces itself every time you retell that story, every time you think through it. I would not just assume that she was faking it. I mean, maybe she was. But there’s a very good chance that by the time she had gone through all that hokum, she believed it.”
Ultimately, Candy was lucky she had good lawyers—one of whom she went to church with, another who took her to an out-of-town shrink who was able to take her back in time to give some context to her ultraviolent impulses. However you want to characterize his methods—junk science, voodoo, or simply an effective relaxation technique—she likely wouldn’t have walked free without them.
