Elkhart considers new $500K legal bill for suit over overturned conviction

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A northern Indiana city is weighing spending another $500,000 to defend itself against a lawsuit filed by a man whose attempted murder conviction was thrown out because prosecutors didn’t disclose that the state’s sole eyewitness underwent hypnosis to sharpen his memory.

The Elkhart City Council gave the $500,000 appropriation request its first reading on Monday before deciding to discuss it in an executive session and take the matter up at a later meeting.

The funding requested by Elkhart city attorney John Espar would come from the city’s general fund and help pay Elkhart’s legal fees in its defense against a lawsuit filed by Mack Sims.

Sims filed his federal lawsuit in December, naming as defendants the city of Elkhart, a former city police detective and a former deputy prosecutor for Elkhart County, The Elkhart Truth reported.

Sims was released from custody in March 2019, after serving part of a 35-year sentence. He was released a month after a dvided panel of the 7th U.S. Circuit Court of Appeals in Chicago threw out his 1994 attempted murder conviction in the November 1993 shooting of security guard Shane Carey.

The prosecution’s case relied on Carey identifying Sims as the shooter and had no physical evidence linking Sims to the attack.

The federal appeals court cited the hiding of “explosive” evidence from Sims — that Carey underwent hypnosis before the trial to sharpen his memory — in declaring that prosecutors had violated pretrial discovery rules by not disclosing that fact.

The U.S. Supreme Court has ruled that a person who undergoes hypnosis could potentially fill memory gaps with fantasy or experience increased confidence in both accurate and inaccurate recollections.

Sims had appealed his conviction after learning in 2012 that Carey had undergone hypnosis before the trial.

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