| On the evening of November 2, 1993, 23-year-old Shane Carey was sitting in his car reading a book while on duty as a security guard for an adult education center in Elkhart, Indiana when three men approached.
Carey said one of the men came to the driver’s side window. Before he could lower his window, there was a flash and he was shot in the face. With shards of glass lodged in his eyes and bleeding from a wound in his cheek, Carey ran into the center where shocked employees called police.
He told police the gunman was a black man with a long coat and black boots. Not long after, police arrested 21-year-old Mack Sims near a walking path close to the scene of the shooting. Police took a photograph of him and took it to the hospital emergency room. Carey looked at it and said Mack “looked like” the gunman.
Two days later, after surgery on his fractured jaw, Carey looked at a photographic array. He said that Sims “resembled” the gunman.
Sims was charged with attempted murder.
In August 1994, the lead prosecutor on the case, Elkhart County deputy prosecuting attorney Charles Wicks, met with Carey to prepare for the trial. Nearly 20 years later, Wicks would recall that he sent Carey to a hypnotist and that after a session, Carey’s identification of Sims was enhanced.
In December 1994, Sims went to trial in Elkhart County Superior Court. The case against him relied almost solely on Carey’s identification. Carey testified that after he saw the photo of Sims in the emergency room, he was shown photographic arrays as many as four times and each time he picked Sims.
His identification had moved from “looks like” and “resembles” to certainty that Sims was the gunman. Carey now said he had locked eyes with the gunman—“It was a very cold stare.” He also said for the first time that he saw that the skin under one of Sim’s eyes was darker than under the other eye. He also said he remembered a patch on Sims’s jacket—something he never mentioned to police after the shooting.
Neither Wicks nor Carey disclosed that the prosecution had paid for him to see the hypnotist, an acquaintance of Wicks from the Kiwanis Club. Wicks, who had a private civil law practice involving personal injury cases, had occasionally referred clients to the hypnotist in the past.
On December 1, 1994, the jury convicted Sims of attempted murder. He was sentenced to 35 years in prison.
The Indiana Court of Appeals upheld his conviction in 1996. In 2002, Sims, acting without a lawyer, filed a post-conviction petition claiming that the identification procedures—showing Carey a single photo of Sims followed by numerous photo arrays—was unfairly suggestive.
On September 9, 2009, Sims was released on parole. On March 17, 2011, he was arrested in Elkhart on charges of drunken driving and possession of a weapon by a felon.
While in the Elkhart County Jail, Sims continued to pursue his postconviction petition in the attempted murder case. In February 2012, Elkhart County deputy prosecutor Graham Polando disclosed for the first time that Carey had been hypnotized. The disclosure led to a hearing in June 2012 on Sims’s petition for a new trial.
At the hearing, Polando revealed that eight months earlier, he had discussed the case with Wicks—who by then was an Elkhart County Superior Court judge hearing felony and misdemeanor criminal cases. Polando said that Wicks told him that he “never told” Sims’s trial defense attorney that Carey was “only able to identify Mr. Sims after he was hypnotized.”
Polando said that after Wicks made that statement, he told Polando, “Don’t say anything.”
During the hearing, Wicks said he did not recall making those statements. He said that Carey’s identification of Sims never wavered, but conceded that Carey’s memory of the shooting was enhanced and that he “became a much better witness” after the hypnosis. Wicks said he did not consider the hypnosis exculpatory information that needed to be disclosed to the defense since Carey had consistently identified Sims.
Carey testified that Wicks brought up the idea of hypnosis, saying “they could put [him] under hypnosis ... but [indicated] there might be a problem in court in the future.” Carey said he told Wicks that he did not have a problem with any future legal issues regarding the hypnosis so long as he was able to recall the person who shot him. Carey also testified that Wicks set up the appointment and the prosecution paid for it.
Carey said he attended one session of hypnosis in which he “fell asleep ... [and] literally entered a dream state in which I ... recall[ed] the shooting itself. And during that time, I had another opportunity to uh, see the person that shot me.”
Sims’s attorney, deputy public defender Peter Todd, then asked Carey, “So it was really only after this hypnosis that you were sure of the person was that shot you?”
“Yeah,” Carey replied.
In September 2012, Elkhart County Superior Court Judge Evan Roberts denied Sims’s petition. The judge said the evidence about the hypnosis should have been disclosed and Wicks’s failure to disclose was a violation of his prosecutorial responsibilities. However, Judge Roberts said that Carey’s identification was reliable and that disclosure of the hypnosis would not have resulted in an acquittal.
In November 2012, Sims pled guilty to the felon in possession of a weapon charge and the drunken driving charge was dismissed. Judge Roberts, who was also presiding over the gun charge case, sentenced Sims to six years in prison. The judge admonished Sims during the sentencing hearing for his “ongoing disrespectful, obstinate behavior and headrolling.”
Sims had been in jail since his arrest on March 17, 2011. Judge Roberts gave him credit for 40 days of that time against his six-year sentence. The remaining nearly 600 days were assessed against him for violating his parole on the attempted murder case.
In 2013, the Indiana Court of Appeals upheld the decision to deny his postconviction petition. In 2014, Sims filed a federal petition for a writ of habeas corpus seeking to overturn his conviction on the same basis—the failure to disclose the hypnosis. The habeas petition was denied in 2018.
However, on February 1, 2019, the Seventh Circuit U.S. Court of Appeals, in a 2-1 decision, reversed and vacated Sims’s conviction. Judge William J. Bauer wrote, “The fact that Carey had been hypnotized would have undermined his credibility and changed his cross-examination quite dramatically.”
Judge Bauer noted that hypnosis explained Carey’s “puzzling” statement at trial that his memory had improved over time. In fact, there was no way to know what Carey actually remembered, or when and how those memories came about.
“Carey would not know what he was able to recall independent of the hypnosis, nor what he was able to recall because of the hypnosis, or whether any of his testimony was true or based on fantasy,” Judge Bauer declared. “This is made more troubling by the fact that Carey provided significantly more information at trial than he did any time before trial."
In the dissent, Justice Amy Coney Barrett wrote, "If I were deciding the question de novo, I would agree with the majority that the suppressed evidence of hypnosis undermined confidence in the verdict." But that wasn't the case, she said, adding that "the decision by the Indiana Court of Appeals "does not involve an objectively unreasonable application of clearly established federal law."
On April 30, 2019, the prosecution dismissed the charge. Sims was still in prison on the felon in possession charge. When his attempted murder conviction was vacated and dismissed, he was given back the nearly 600 days jail time that had been assessed against him for his parole violation. As a result, his six-year sentence had been served and he was released.
In December 2019, Sims filed a federal lawsuit against the county seeking damages for his wrongful conviction.
– Maurice Possley
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