In an editorial titled, “Defiant One,” the Akron Beacon Journal takes issue with Summit County, Ohio prosecutor Sherri Bevan Walsh’s decision to appeal Judge Judy Hunter’s order (252 kb PDF) admitting over objection polygraph evidence proffered by the defense in Ohio v. Sharma:
Defiant one
Prosecutor Walsh won’t listen to Judge Hunter, or to a polygrapher often used by her own office
This editorial page recently urged Sherri Bevan Walsh, the Summit County prosecutor, to think hard about her handling of the sexual battery case against Sahil Sharma. We did so in the wake of an extraordinary ruling by Judge Judy Hunter of the county common pleas court allowing into evidence three independent polygraph tests of the defendant. The judge did so without the required assent of the prosecution. She understood the lengths to which she was going. Clearly, she felt the need to send a strong message about the course the prosecutor has taken, about the risk of serving something less than justice.
Prosecutor Walsh responded to the editorial in a May 20 column published on the Commentary page. The tone and approach of the essay indicated that she isn’t going to heed the judge’s counsel. Her office has pledged to appeal the Hunter ruling. That is understandable in view of the legal precedent. It also misses the point. Judges do not take such steps willy-nilly. The order amounted to a desperate cry.
Read the prosecutor’s column, and Walsh fails to answer adequately the editorial or the judge. The disingenuousness should disturb county residents.
Sharma, a 26-year-old law student from New York, was arrested last August. Both he and the accuser attended a wedding. The incident occurred in the early morning hours at the Sheraton Suites in Cuyahoga Falls. He says they had consensual sex. She says it was not consensual. The polygraphers who examined Sharma concluded he was telling the truth in answers to questions about the incident.
In her column, Walsh challenged the independence of the polygraph examinations. To be sure, the defense arranged and paid for the tests. True, too, is that Walsh and other prosecutors across the country frequently use the polygraph as a tool in investigations. More, Walsh often has tapped Bill Evans of Polytech in Akron to conduct polygraphs for her office. He is one of the experts who examined Sharma.
Is Walsh suggesting the three polygraphs are inaccurate? Two of the exams were peer-reviewed, translating, in effect, into five experts finding Sharma truthful. Is Walsh arguing that Evans, for one, might have skewed the results to fit the defense version of events? What might that say about the work he has performed for her office?
Her column discussed at length the legitimate concerns about subjecting a victim of sexual assault to a polygraph. The critical issue in this case involves the polygraphs of the defendant. The key questions do not cover the murky realm of consent. Rather, they address such matters as whether clothing was removed and whether the accuser was asleep.
Judge Hunter called for allowing the polygraphs into evidence, provided, among other checks and balances, the defendant testified first and faced cross-examination. Prosecutor Walsh lamented that the ruling would make the eventual jury irrelevant. Actually, the judge had in mind the significance of the prosecutor’s office. Few offices are as powerful, requiring keen discretion at critical turns to serve justice and maintain public confidence. A question for Walsh: What if a jury convicts Sahil Sharma without knowing he passed three polygraph examinations?
Regardless of the merits of the case at hand, the outcomes of pseudoscientific polygraph “tests” should never be admitted as evidence in any court of law, or be relied upon in any way when it comes to the dispensing of justice.