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Seventh Circuit: Failure to Disclose that Star Witness Was Hypnotized is 'Brady' Violation

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit ruled that the State concealed materially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose that the prosecution’s only witness to identify the defendant was hypnotized before trial.

In November 1993, Shane Carey noticed three black men approach his vehicle – two on the passenger’s side and the other on the driver’s side. The one on the driver’s side moved his hand toward his coat, and Carey was shot in the face. Carey ran into a nearby school, and help was summoned.

Officers Tom Lerner and William Wargo arrived at the scene. Carey gave Lerner a description of the shooter as a black male with short hair or shaved head and a large build, in his late twenties, and wearing a three-quarter-length coat with dark pants and dark combat boots.

Minutes later, Wargo observed a black male wearing a three-quarter-length jacket and hat crouching behind a dumpster about 25 feet from Carey’s vehicle. The individual was ordered to come forward, and he complied without protest. He was identified as Mack Sims. No weapons were found on him. None of the witnesses in the area were able to give a description of the assailant. No gun, shell casing, or other physical evidence was recovered.

Sims was charged with attempted murder. At Sims’ trial, prosecuting attorney Charles Wicks relied almost exclusively on Carey’s testimony. Carey testified he looked the shooter “square in the eyes” and observed that the skin tone under the left eye was lighter than under the other. Carey then positively identified Sims. Carey further stated that on the arm of the shooter’s coat was a two-inch diameter patch. He was then shown the coat Sims wore when arrested and identified the patch. Carey also testified that when he was shown six photographs, he chose Sims as the one who “looked like” his assailant.

During cross-examination, after defense counsel pointed out that Carey’s photo identification was equivocal, Carey stated he did unequivocally identify Sims when he was shown a single photo of Sims while he was in the emergency room. When counsel pointed out that Carey neither mentioned the facial skin tones nor the patch on the coat in his initial description to police, Carey stated his memory of the crime improved over time.
The jury convicted Sims of attempted murder, and his conviction was upheld on appeal. Then in 2012, subsequent to a postconviction motion, an evidentiary hearing was held in Elkhart County Superior Court. At the hearing, Carey testified he became sure it was Sims who had shot him only after he had gone under hypnosis. Carey testified that after the hypnosis, Wicks created another photographic lineup where Carey identified Sims due to the skin coloration beneath the eye. Carey stated that only “after the hypnotism the birthmark really stood out.” Wicks later testified that the hypnosis was concealed from the defense. The superior court outlined the test in Brady, i.e., to warrant reversal the concealed evidence must be favorable to the defense, and it must be material (meaning that if the evidence had been disclosed, there is a reasonable probability the outcome of the proceeding would have been different). The court ruled the evidence of hypnosis was favorable to the defense but found the evidence was not material because there was not a reasonable probability disclosure would have changed the results of the proceeding. The court reasoned that Carey’s identification testimony of Sims prior to hypnosis was admissible and sufficient to convict.

The Indiana Court of Appeals affirmed the superior court’s decision. The Indiana Supreme Court denied relief, and Sims filed a habeas petition in federal court. The district court denied habeas relief but issued a certificate of appealability.

To prevail on appeal, Sims was required to show that the state court decision: (1) was contrary to or an unreasonable application of clearly established federal law, or (2) was based on an unreasonable determination of the facts. 28 U.S.C. § 2254 (d). A state court decision is “contrary to” federal law when it applies a rule different from that set forth by the U.S. Supreme Court or if it decides a materially indistinguishable case differently than the Supreme Court. Williams v. Taylor, 529 U.S. 362 (2000). A decision is unreasonable if it correctly identifies the governing legal rule but applies it unreasonably. Id. The Indiana court correctly identified the Brady materiality standard but failed to apply it.

The Court noted that the Supreme Court has held “[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of the evidence affecting credibility” merits a new trial under Brady. Giglio v. United States, 405 U.S. 150 (1972).

The Supreme Court explained in Rock v. Arkansas, 483 U.S. 44 (1987), that there are several serious problems that undermine the accuracy and credibility of hypnotically enhanced testimony, including “an increase in both correct and incorrect recollections” and “confabulation” where the witness imagines details to fill in gaps, followed by “memory hardening,” which gives the witness great confidence in the false memories. This explains Carey’s statement that his memory improved over time and his sudden burst of confidence in his identification of Sims after hypnosis. Had the jury heard the hypnotism evidence, Carey’s credibility would have been seriously undermined. Since the State’s case depended entirely on Carey’s credibility, there is a reasonable probability the outcome would have been different.

Accordingly, the Court reversed and remanded with instructions to grant the petition for a writ of habeas corpus. See: Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019). 

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