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2/7/2019 8:09:00 PM
Appeals court tosses Elkhart conviction over concealed hypnosis of sole eyewitness

South Bend Tribune

A federal appeals court has overturned an attempted murder conviction in Elkhart, saying a prosecutor concealed “explosive” evidence the state’s sole eyewitness had been placed under hypnosis before trial, throwing into doubt the witness’s reliability.

The court’s opinion, issued 25 years after the defendant, Mack Sims, was convicted, is the latest rebuke of Elkhart’s criminal justice system, which has been the subject of an ongoing investigation by the South Bend Tribune and ProPublica.

The prosecutor who failed to disclose the hypnosis, Charles C. Wicks, is now an Elkhart Superior Court judge, presiding over felony and misdemeanor cases. 

Sims was arrested in November 1993 on suspicion of shooting Shane Carey, a security guard sitting in his car. Police said they found Sims about a half-hour after the shooting, crouching behind a nearby trash bin. In 1994, Sims was convicted in a jury trial of attempted murder and sentenced to 35 years in prison. He’s currently at Westville Correctional Facility, in the state’s northwest corner. No physical evidence linked Sims to the shooting. The state’s case hinged on Carey’s identification of Sims as the shooter.

Under a 1963 U.S. Supreme Court case, Brady v. Maryland, prosecutors must disclose evidence that could be viewed as favorable to the defense. When Sims stood trial, Wicks, the case’s prosecutor, did not inform the defense that he had referred the victim to a hypnotist. The hypnotist was a physician’s assistant Wicks knew from the Kiwanis Club.

Courts generally frown on testimony from witnesses who have undergone hypnosis, because the practice often leads to an increase in false memories, alongside any legitimate improvements in a person’s recall. The Supreme Court has warned that a person under hypnosis is vulnerable to “confabulation,” filling gaps in the memory with fantasy, and to memory “hardening,” which increases a person’s confidence in both accurate and inaccurate recollections.

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