Dave Stafford for www.thendianalawyer.com

An Indiana man who was “confidently” identified as the perpetrator of an Elkhart shooting after the victim was hypnotized will be allowed to go free after a majority of the 7^th Circuit granted his habeas petition. The appeals court found the state court erred in not overturning the man’s conviction because the state withheld evidence of the hypnosis during trial.

In November 1993, security guard Shane Carey was shot in the face while sitting in his car, and Mack Sims was found roughly 20 feet from where the shooting occurred. Although he had no weapons on his person, Carey identified Sims at trial as the shooter.

During his trial, the state relied almost exclusively on the only witness, Carey, who could possibly identify the shooter to establish their case against Sims. But defense counsel pointed to Carey’s discrepancies in the description of the shooter, noting it didn’t match up with Sims’ appearance at the time of his arrest. Sims was ultimately convicted of attempted murder and sentenced to 35 years’ imprisonment.

Then in a 2012 evidentiary hearing regarding a post-conviction relief petition filed by Sims, new information was revealed by then-deputy prosecuting attorney Graham Polando, who said he had consulted with Judge Charles Wick, the trial deputy at Sims’ attempted murder trial, and was asked by Wick to not disclose that Carey only identified Sims as the shooter after being hypnotized to “enhance his recollection of the shooting.”

Carey later testified that when viewing a lineup the day after the shooting, he merely stated Sims “looked like” the assailant because “at the time [he] was not extremely sure.” He also testified that Wicks suggested hypnosis, then set up the hypnosis appointment paid for by the state.

On the stand, Wicks defended not disclosing the hypnotism, asserting it was not exculpatory in nature because Carey never wavered in his identification of Sims as the shooter. The Elkhart Superior Court ultimately denied Sims’ petition for post-conviction relief, finding Carey had been able to identify Sims well before the hypnosis was administered.

When he was denied habeas relief in the remaining Indiana courts — which pointed to evidence of Carey’s in-court identification of Sims and his identification of the shooter before hypnosis — Sims filed a petition for writ of habeas corpus in federal court. The district court held that the Indiana court did not unreasonably apply established federal law, but the majority of 7^th Circuit disagreed in a Friday 25-page decision.

Sims’ appeal was premised on the argument that the state’s withholding of the hypnosis information was a Brady violation. The majority agreed, with Judge William J. Bauer saying the Indiana Court of Appeals saying caselaw allows admission of hypnosis-related evidence and testimony only “if the prosecution can show by clear and convincing evidence that the in-court identification has a sufficient independent factual basis.”

The issue with the COA’s analysis, Bauer said, is that when the state court determined the hypnotic evidence was admissible, it also determined that “it is not reasonably probable that the outcome of Sims’s trial would have been different had Carey’s hypnosis been disclosed.” That ruling was clear error, the majority joined by Judge David Hamilton said, finding the concealment of the hypnosis was material.

“It is not difficult to imagine what Sims’s lawyer could have done at trial with the knowledge that Carey had been hypnotized,” Bauer wrote. “The known effects of hypnosis could explain Carey’s confidence, his claim that his memory of the shooting had improved over time, and the otherwise benign changes in his descriptions of the shooter. 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.”

“Finally, these problems with hypnosis undercut the Indiana court’s final reason for refusing post-conviction relief: Carey’s testimony indicated he was able to identify the assailant, but hypnosis was able to make him ‘extremely sure,’” Bauer continued. “No one knows what effect the hypnosis had on Carey and it also belies the record for reasons discussed above.”

The majority thus reversed and remanded the case to the district court with instructions to grant Sims’ habeas petition. But in a 15-page dissent, Circuit Judge Amy Coney Barrett argued that although the undisclosed evidence of Carey’s hypnosis constituted aBrady violation, “it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise.”

“Here, Carey’s hypnotically-refreshed testimony was not ‘the only evidence linking [Sims] to the crime,’” Barrett wrote. “… With a solid on-scene description, multiple untainted photo-array identifications, and an in-court identification by the victim — not to mention Sims’s suspicious behavior and proximity to the scene of the crime — a fair-minded jurist could be confident in the jury’s verdict, even if we are not.”

The majority, however, said Barrett’s argument did not “explain why Wicks felt it necessary to take the risk of setting up a hypnosis session for Carey without disclosing it.”

“Nor does it appear to take into account the instances in which Carey equivocated,” Bauer said. “Furthermore, the only indication as to when the hypnosis session took place is Carey’s testimony at the post-conviction evidentiary hearing that it was months before when he and Wicks ‘first started talking about who the perpetrator was.’”