Indiana seeks to uphold conviction after hypnosis bolstered identification

The State of Indiana has asked a federal appellate court to reinstate a 1994 attempted murder conviction, contending the jury would have voted to convict even had it known  that the victim was hypnotized before making a positive identification.

In its petition for a rehearing by the full Seventh Circuit Court of Appeals, the state attorney general did not address the allegations of prosecutorial misconduct in the case. The prosecutor, Charles Wicks, who is now a Elkhart County judge, never disclosed that he suggested the key witness undergo hypnosis to aid his identification. His testimony that the witness had done so on his own was later contradicted in court.

The Indiana attorney general, Curtis Hill, was the Elkhart County elected district attorney when, in 2012, the hypnosis first was revealed. Wicks, who by then was a judge, advised Hill’s deputy not to tell anyone about the hypnosis, according to testimony.

There is no public record of any disciplinary finding of misconduct by Wicks.

Neither Hill nor Graham Polando, the deputy, would say whether they reported the allegations of misconduct. Wicks has declined to comment.

But across the country, instances of apparent misconduct by prosecutors seldom are reported, and prosecutors rarely face disciplinary action, according to legal experts.

Disciplinary complaints are not public, and there is little information about how often instances are even reported. But experts say that attorneys and judges are reluctant to file complaints.

Prosecutors, defense attorneys and judges “all swim around in the same fishbowl together and nobody wants to be a snitch and rat someone out they interact with on a regular basis,” says Lara Bazelon, associate professor at the University of San Francisco Law School.

Bazelon said defense attorneys might fear prosecutors would retaliate against future clients of theirs, and judges, who often face re-election or retention bids, would face electoral backlash.

Prosecutorial misconduct, but often no discipline

Past studies have shown that prosecutorial misconduct happens with some regularity, and in the worst cases leads to wrongful convictions. The National Registry for Exonerations found in 2017 that 84 exonerations that year—about 60 percent— were the result of “official misconduct,” the great majority of which deals with police or prosecutors withholding potentially exculpatory evidence.

Earlier, the Center for Public Integrity found more than 2,000 cases nationwide in which convictions were partly or fully reversed based, at least in part, on prosecutorial misconduct; But only 44 of these cases resulted in any kind of discipline of the prosecutor.

John Hollway, the director of the University of Pennsylvania Law School’s Quattrone Center, cited several reasons prosecutors often go undisciplined for misconduct: Many judges are former prosecutors. The disciplinary boards also are often staffed by former prosecutors. And judges often have rapport with prosecutors in their courtroom.

Additionally, experts note the difficulty in establishing that the misconduct is willful and not accidental.

Disciplinary boards “are quick to assume a prosecutor made a mistake or was negligent or misled by law enforcement,” says Laurie Levenson, a law professor at Loyola Law School, Los Angeles.

The American Bar Association has recommended that states amend their rules to require prosecutors to promptly disclose material evidence. Indiana, like most states, has not adopted the recommended changes.

The photograph “looked like” the assailant

At issue is a 1994 incident in which an armed man walked up to a car in a parking lot and shot the man sitting in the driver’s seat, Shane Carey, in the face. Police found Mack A. Sims crouching in a bush nearby and arrested him.

Carey was asked to make several photographic identifications, in the hospital and later. But, according to the court record, he was repeatedly less than positive about whether Sims was the man who shot him, saying the photograph “looked like” the assailant.

At trial, Carey testified with certainty that Sims was the shooter, and added details he hadn’t before about a patch on Sims’s coat and a skin discoloration beneath his eye. He was cross-examined about his previous more tentative identifications, but insisted he was sure Sims was the shooter.

The jury convicted Sims and he was sentenced to 35 years in prison.

The Indiana courts upheld Sims’ conviction in 1996, after which he filed a habeas corpus petition contending that Carey’s identification had been tainted because the officers had shown the victim a single photograph, rather than a photographic array.

In 2012, at a hearing on that issue, prosecutor Polando first revealed that Wicks told him Carey was hypnotized before trial. Polando stated at the hearing that Wicks had asked him not to reveal that Carey had been hypnotized before he made a positive identification, which was the key evidence against Sims.

But Indiana courts did not find the hypnosis to be material evidence, saying that Carey had identified Sims before the hypnosis, and therefore that detail would not have led to a different verdict.

At a 2012 hearing after Polando’s revelation, Wicks was called to the stand and maintained that Carey had undergone hypnosis on his own. But Carey offered a different version: He testified that Wicks set up his hypnosis appointment and that the state paid for it. It was only after this hypnosis, Carey testified, that he was able to recall the other details about the identification that were absent from Carey’s statement to detectives following the attack.

Under questioning by public defender Peter Todd, Wicks admitted that he gave Carey the name of the hypnotist, George Atkins, but said he did not arrange the appointment and was not even sure that he knew before trial that Carey had attended hypnosis sessions. Wicks testified he knew Atkins, whom he knew from Kiwanis Club, from other “successful” encounters his personal injury clients had had with him. Atkins has since died.

Wicks said even if he was certain on when he knew of Carey’s hypnosis, he would not have necessarily disclosed that information to Stevens during trial as he did not feel it was exculpatory information. He said during testimony that Carey was “consistent at identifying Mack Sims as the assailant.”

Wicks said he was testifying from memory, saying that he had been told by police that the file on the case had been destroyed, and said that possibility was the result of one of a series of floods.

The Seventh Circuit Court of Appeals disagreed with Indiana courts on the importance of the withheld evidence. The court said in its majority opinion that the evidence Wicks did not disclose at court was material, violating Brady v Maryland, a 1963 U.S. Supreme Court decision requiring prosecutors to provide the defense before trial with evidence that could prove them innocent. Judge William Bauer wrote in the court opinion that the state court had erroneously found that the hypnosis was not material, and therefore not required to be turned over:

“The state court then made the leap that was contrary to, and an unreasonable application of, Brady and its progeny: it concluded because Carey’s testimony would still have been admissible, ‘it is not reasonably probable that the outcome of Sims’s trial would have been different if Carey’s hypnosis had been disclosed.’”

In its petition for Sims’s conviction to be reinstated, the Office of the Indiana Attorney General said the federal court was wrong to say the hypnosis constituted material evidence under Brady, writing that federal courts had improperly made its own factual determinations regarding the evidence “while ignoring the record-supported findings of the state courts.”

Elkhart County prosecuting attorney Vicki Becker said Wednesday that if the conviction is not reinstated, she will make a decision as to whether the county will drop charges against Sims or seek to retry him.