A federal appeals court has thrown out a 1994 attempted murder conviction, finding that an Indiana prosecutor concealed evidence by not disclosing that the state’s sole eyewitness underwent hypnosis to sharpen his memory before testifying at trial.
The 7th U.S. Circuit Court of Appeals in Chicago announced the decision in Mack Sims’ case on Feb. 1.
Sims was sentenced to 35 years after he was convicted in Elkhart County in the shooting of security guard Shane Carey. The prosecution’s case relied on Carey identifying Sims as the shooter and had no physical evidence linking Sims to the attack.
Sims appealed the conviction after learning in 2012 that Carey had undergone hypnosis before the trial.
The U.S. Supreme Court has ruled that a person who undergoes hypnosis could potentially fill memory gaps with fantasy or experience increased confidence in both accurate and inaccurate recollections.
The Northern District of Indiana court in South Bend denied Sims’ appeal, stating that Carey had described and identified Sims multiple times before undergoing hypnosis. The appeals court rejected that reasoning, ruling that the suppression of evidence violated pretrial discovery rules.
“Considering the overall weakness of the prosecution case without Carey, the importance of his testimony, the explosive strength of the concealed hypnosis evidence, and the relatively mild impeachment of Carey that the defense managed at trial, habeas relief is required,” the written order said.
The prosecutor who failed to disclose the hypnosis, Charles Wicks, declined to comment on the case. Wicks now is an Elkhart Superior Court judge.
The appeals court’s decision is the latest rebuke of Elkhart County’s criminal justice system. A northern Indiana police chief recently came under scrutiny after downplaying the beating of a handcuffed suspect by two officers.