Ohio Defendant Acquitted Based Partly on Polygraph Evidence

Basing her decision in part on polygraph evidence admitted at trial against the prosecutor’s objection, Summit County Common Pleas Judge Judy Hunter on Monday, 20 August 2007 found Sahil Sharma of New York City innocent of felony sexual battery and two misdemeanor charges. While the text of Judge Hunter’s decision is not yet available, AntiPolygraph.org has obtained pre-trial polygraph testimony as well as video of a polygraph examination that was played in open court. For commentary, see Critique of Louis I. Rovner’s Polygraph Examination and Testimony in Ohio v. Sharma on the AntiPolygraph.org message board.

Akron Beacon Journal staff writer Ed Meyer reported on Judge Hunter’s verdict in an article published 21 August 2007:

Man found not guilty in sexual battery case

Summit judge calls accuser’s story ‘incredible’

By Ed Meyer
Beacon Journal staff writer

Published on Tuesday, Aug 21, 2007

When she took the witness stand last week, the accuser in the Summit County sexual battery trial of a 26-year-old New York law school graduate described in detail what she claimed had happened before and after the alleged incident.

After drinking at a wedding party at a Cuyahoga Falls hotel, the woman said she went to bed in a second-floor room with her clothes on except for a pair of sandals and suddenly awoke unclothed with someone on top of her having sex with her in complete darkness.

She also testified that she vomited as soon as she awoke.

Calling that story ”incredible,” Common Pleas Judge Judy Hunter on Monday found the defendant, Sahil Sharma, not guilty of the third-degree felony charge and two supplemental misdemeanor charges of falsification for allegedly misleading investigators.

Hunter took the weekend to think about her decision after the trial ended on Thursday, saying she reached her conclusion about the woman’s story using ”reason and common sense.”

Sharma, in a case that has been under a legal magnifying glass because of the admission of defense polygraph evidence, said after Hunter announced the verdicts in the packed courtroom: ”At the end of the day, justice was served. I always knew that I was innocent, and my parents always knew that I was innocent.

”I thought that the prosecution didn’t care about the polygraph evidence the profound, convincing evidence that I didn’t do this crime,” he said.

Sharma, who was in the area last summer for a family wedding when the incident occurred at the Sheraton Suites hotel in the early hours of Aug. 28, had passed three polygraph tests supporting his story that the incident was consensual.

Moments after Hunter issued her decision, Sharma’s accuser, Michelle M. Sacia, 24, began sobbing in the public seating section, surrounded by family members, workers from Victim Services and sheriff’s deputies.

Accuser praised

Assistant Summit County Prosecutor Brad Gessner, head of the office’s criminal division and the lead prosecutor in the case, said he was ”disappointed” in the verdict.

”But at the same time, we’re very proud that this victim had the courage in spite of everything that went on in this case to stand up and face (Sharma), and that she had the guts to take the witness stand and subject herself to his attorney’s cross-examination. He didn’t,” Gessner said.

The two sides had battled heatedly at times in the judge’s chambers over the admissibility of the polygraphs.

In Hunter’s pretrial decision allowing the three polygraphs, she set the condition that the evidence could be used only if Sharma testify and, in turn, subject himself to cross-examination.

But as the prosecution’s case was winding down on Thursday, the state played a 21/2-hour DVD of one of the polygraph tests by Dr. Louis I. Rovner of Los Angeles in an apparent attempt to show how Sharma allegedly made contradictory statements to investigators.

Details that Sharma gave to Falls police at the hotel, Gessner charged, were different than details he gave to Rovner in the March 9 polygraph in Rovner’s West Coast office.

However, after the prosecution opened the door to the polygraph evidence, defense lawyer Kirk A. Migdal decided there was no need for Sharma to testify, so he never took the stand in his own defense.

Migdal rested his case after calling only two witnesses, one a Falls police officer who contradicted part of Sacia’s testimony. Sacia said she was told by the officer to attend the wedding ceremony on the day after the incident. The officer testified that he gave no such advice.

Clothing was key

Hunter emphasized the items of clothing Sacia was wearing to explain the crux of her decision.

Sacia testified she went to bed wearing jeans with two buttons and a zipper in front, underwear and a T-shirt with a white tank top and bra underneath. She said she removed only the sandals before falling asleep.

For someone to remove all of those clothes under the full weight of Sacia’s body, piece by piece, ”without being awakened, even from the heaviest sleep, this court finds to be incredible,” Hunter said.

The judge also pointed out another hole in Sacia’s testimony. The accuser said she was naked when she awoke and vomited, but the judge emphasized that the T-shirt and tank top were heavily stained in front a strong indication Sacia had vomited with her clothes on.

Migdal, in fact, had placed the T-shirt and tank top on the top railing of the jury box to hammer home that point during his closing argument.

As Sharma left the courthouse with his family members, he said he was returning immediately to New York to resume his legal career.

”I just want to go home with my family, to go back to practicing law, so hopefully one day I’ll be able to help someone in the same position,” he said.

Sharma graduated from Touro Law School in the spring and has taken the New York bar exam. He said he is awaiting the results in November.

Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.

Cleveland Plain Dealer reporter James Ewinger also covered this story:

Using polygraph evidence, sex-assault defendant acquitted in Summit
Prosecutor objected to evidence’s use
Tuesday, August 21, 2007
James Ewinger
Plain Dealer Reporter

A New York law-school graduate got the legal lesson of his life Monday when a Summit County judge acquitted him of sexual battery and related charges.

The case stood as a lesson for criminal defense lawyers as well, because it is believed to be one of the few times that a polygraph test has been allowed into evidence anywhere, over prosecutors’ objections.

Sahil Sharma, the 26-year-old defendant, wept after Common Pleas Judge Judy Hunter explained her decisions and announced the verdicts.

That ended a legal ordeal that began a year ago when he was accused of having sex with a 24-year-old Stow woman too drunk to consent.

Both had been at a Cuyahoga Falls hotel to attend a wedding.

Sharma also was accused of making false statements to police about the case.

Hunter heard the case without a jury last week and said she would announce her decisions at 1 p.m. Monday, after deliberating through the weekend. Sharma and some family members waited outside Hunter’s courtroom Monday well before the appointed hour.

Kirk Migdal, his lawyer, had him take three polygraph tests, each administered by a different person. Sharma passed all of them, though only one was used at trial.

Hunter broke new legal ground earlier this year when she ruled that the polygraph tests could be used at trial.

Migdal said New Mexico is the only state that routinely allows that, and he is aware of no other case here.

Summit County Prosecutor Sherri Bevan Walsh took Hunter’s decision to the 9th Ohio District Court of Appeals for review, but that court declined to rule, saying the issue was not ripe.

“We’re disappointed in the judge’s decision; however, we are proud that the victim had the courage to come forward and that she had the guts to subject herself to cross-examination at trial, something the defendant did not do,” said Chief Assistant County Prosecutor Brad Gessner.

The state still could appeal the legal issue, but the not-guilty verdicts cannot be challenged.

Sharma said he won’t take any legal action against his accuser or the police.

“I just want to move on. I’ve had enough,” he said outside the courthouse.

He lives in lower Manhattan and took the New York state bar exam last month. He will get the results in November.

He said he had not planned to practice criminal law until his case came to court.

His accuser sat in the courtroom long after the verdicts, clearly upset.

When a reporter asked for a statement, she made an obscene gesture and said nothing.

Earlier Monday, Hunter said that the woman’s testimony was not credible and that key elements of her story did not mesh with other evidence.

The young woman had claimed that her clothes were removed while she was passed out and said she awoke, naked, to find someone on top of her performing a sexual act.

One police officer and one polygraph expert were the only defense witnesses, while the state presented 10 witnesses and 71 exhibits.

To reach this Plain Dealer reporter:

jewinger@plaind.com, 216-999-3905

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