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Judge Barrett Once Voted Not to Reverse Attempted Murder Conviction in Case Where Prosecutor Concealed Witness’s Hypnosis


The Senate Judiciary Committee on Monday held day one of confirmation hearings for President Donald Trump’s third nominee to the U.S. Supreme Court, Judge Amy Coney Barrett. While the day’s acrimonious proceedings focused often on fears that the conservative jurist will strike down the Affordable Care Act (ACA), others spent time scrutinizing Barrett’s record as a judge, including one particularly eyebrow raising dissent in a case concerning attempted murder, prosecutorial misconduct, and hypnosis.

The U.S. Court of Appeals for the Seventh Circuit last year in Sims v. Hyatte granted a writ of habeas corpus for an Indiana defendant who had been convicted of attempted murder in the mid-nineities. The case was filed after it was revealed that prosecutors intentionally concealed a critical fact regarding the only witness to the crime. In a 2-1 decision, the court’s majority held that Mack Sims’s right to due process was violated because prosecutors failed to disclose that Shane Carey, the sole witness to testify that Sims was the shooter, only did so after being hypnotized to improve his memory.

In the ruling penned by Senior Circuit Judge William Bauer, a 94-year-old appointee of Gerald Ford (R), reasoned that “without Carey’s identification of Sims as the shooter, the prosecution had no case.”

“The fact that Carey had been hypnotized would have undermined his credibility and changed his cross-examination quite dramatically,” Bauer wrote, adding that, “the prosecutor’s deliberate concealment of the hypnosis evidence undermined confidence in the verdict that has kept Sims in prison for more than twenty years.”

But Judge Barrett disagreed with the decision to overturn Sims’s conviction, penning a dissent reasoned that the court should have been more deferential to the state court’s decision to let the conviction stand. Though she conceded that concealing the hypnosis constituted “a Brady violation” by the prosecutor, Barrett wrote that “it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise.”

Contending that Carey “never wavered” in identifying Sims, Barrett wrote that “evidence of hypnosis and Carey’s reduced credibility over time could not have retroactively undermined the reliability of his contemporaneous description of the events.” But her colleagues took issue with that assessment in the majority opinion.

“The dissent assails our opinion by asserting that Carey never wavered in his identification of Sims,” Bauer wrote. “This does not explain why [the prosecutor] 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.”

“Furthermore, the only indication as to when the hypnosis session took place is Carey’s testimony at the postconviction evidentiary hearing that it was months before trial when he and [the prosecutor] “first started talking about who the perpetrator was,” he added.

Read the full decision and dissent below.

Sims v. Hyatte ACB Hypnosis Dissent by Law&Crime on Scribd

[image via OLIVIER DOULIERY/AFP via Getty Images

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.