A federal appeals court has overturned a 1994 attempted murder conviction in Indiana, ruling that the prosecution had failed to tell the defendant that the only eyewitness to the incident became sure of his identification after he underwent hypnosis.
The use of hypnosis only was revealed in 2012 when a prosecutor announced in court that the trial attorney had told him of the hypnosis and “asked me not to disclose what he told me.” That trial deputy, Charles Wicks, is now an Elkhart Superior Court judge.
A panel of the Seventh Circuit U.S. Court of Appeals, as it overturned the attempted murder conviction of Mack A. Sims, wrote in an opinion dated Friday that Wicks’s “deliberate concealment of the hypnosis evidence undermined confidence in the verdict that has kept Sims in prison for more than twenty years.” Sims was sentenced to 35 years after his conviction.
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Wicks could not be reached for comment late Monday afternoon.
The hypnosis was performed on the victim, a security guard named Shane Carey, to help him recall who the assailant was who shot him in the face as he sat in his car in 1993. The hypnotist, according to the court record, was a physician’s assistant whom Wicks knew from Kiwanis Club and had used in the past to help personal injury clients of his recall traumatic events.
After the post-conviction prosecutor, Graham Polando, announced what Wicks told him, Carey was called to the stand and said it was only after the hypnosis that he was sure of the person who shot him.
According to the court record, Carey had been shown a series of lineups that included Sims, but the victim had failed to positively identify him before the hypnosis.
Years later, after Polando disclosed the hypnosis, Carey testified at the hearing that he attended one session of hypnosis in which he fell asleep and entered a dream state where he was able to recall the shooting itself. During that hypnotic session, he said, he had another opportunity to see the person that shot him. It was only after this hypnosis, Carey said, that he was sure of the person who shot him.
Writing for himself and Judge David Hamilton, Judge William Bauer wrote:
“It is not difficult to imagine what Sims’s lawyer could have done at trial with the knowledge that Carey had been hypnotized….Reasonable judges cannot be confident that, if the jury had known that Carey had been hypnotized before he identified Sims at trial, they would have found his identification beyond reasonable doubt.”
The majority opinion added, “Without Carey’s identification of Sims as the shooter, the prosecution had no case.”
Writing in dissent Judge Amy Barrett said the majority had failed to give adequate deference of the state court ruling that had upheld the conviction.
After hearing the testimony about the hypnosis, the Elkhart Superior Court had earlier entered a 2012 order denying Sims’s petition to overturn his conviction., noting that the day after the shooting Carey said a picture of Sims “looked like” the assailant.
That state court finding was later upheld by the Indiana appellate courts, agreeing that Carey’s identification before he was hypnotized was sufficient.
After he had been hypnotized, Carey pointed to Sims at trial and positively identified him as the shooter. He also added details to his description of Sims he had not mentioned before, including a patch on Sims’s jacket and discoloration under Sims’s eye.
In its opinion, the federal appellate panel cited problems with eyewitness identification: “The more confident the eyewitness is in his identification, the more likely the jury is to believe that the identification is accurate and to convict the defendant.”