- If Sahil Sharma loses, he'll never be able to practice law.
Kirk Migdal is used to clients insisting on their innocence. After 20 years of defending low-level bad guys, he fancies himself immune to their sob stories. It's how he gets through the days.
"I can count on one hand the number of cases I've had where I really believe the guy's been innocent," he says.
But despite his best efforts, once in a while a case lodges in him like a kidney stone. "It's easy to defend the guilty people," Migdal says. "It's the innocent ones that keep you up at night."
Consider the sexual battery case against Sahil Sharma. Last summer, the then 25-year-old law student at New York's Touro College traveled to Cuyahoga Falls for a cousin's wedding. On the night before the nuptials, Sharma and his young relatives snuck out to a bar for reprieve. His cousin brought a friend, former Kent State student Michelle Sacia.
It was a muggy night, the kind that inspires consumption. At a bar at the Cuyahoga Falls Sheraton, Sharma and Sacia became acquainted, chatting about fashion and city life. But six drinks later, Sacia began to feel woozy. She'd asked earlier that day whether there'd be a place to rest before driving home. Sharma's cousin said his room would be fine. Around 1 a.m., she asked whether she could lie down. She was let into a suite the cousin was sharing with Sharma.
Two hours later, Sharma opened his hotel room and found Sacia lying on his bed. She was not in the best shape. She had just vomited. He brought her a glass of water.
Afterward, the two continued their conversation. One thing led to another, Sharma claims, and soon their libidos took charge. They were drinking, he admits. "It probably wasn't the most responsible thing to do."
Then he fell asleep -- only to awake the next morning to the sound of police pounding on his door. Sacia claimed she'd been raped.
Migdal wasn't anxious to take Sharma's case. Rape, by nature, is hard to defend. Most are he said/she said battles, soiled further by alcohol. But Sharma kept insisting on his innocence. So Migdal, unimpressed, did what he often does with clients: He took him to see Bill Evans, a polygraph examiner and lawyer.
Evans asked about specific facts. "Was Michelle awake while you were having sex?" "Did you insert your penis in Michelle's vagina without her knowledge?" The American Polygraph Association asserts that asking questions based more on fact than opinion leads to a 90-percent accuracy rate. Sharma passed.
Migdal, now convinced of his client's story, went to the Summit County prosecutor, hoping to get the charges dropped. But he wasn't approaching a receptive foe.
Sherri Bevan Walsh has spent much of her career prosecuting sexual assault cases and is known as a women's rights darling in Summit County, where she's gotten life sentences for three men who'd sexually abused young children. But some believe her success has bred zealotry.
A year and a half ago, recently recovered DNA evidence cleared inmate Clarence Elkins of raping his niece in 1998. Even Attorney General Jim Petro, a man loath to act on behalf of any convict, believed Elkins' innocence was irrefutable and wrote a letter to Walsh demanding his release. But Walsh held her ground, claiming that DNA tests weren't conclusive.
The Plain Dealer called her lack of action "unconscionable." Defense attorney Jana DeLoach claimed that she and other prosecutors were "more interested in protecting their conviction than protecting the public."
Only after pressure mounted did Walsh consent to Elkins' release.
Walsh refused to drop the charges. But Assistant Prosecutor Connie Lewandowski agreed to discuss allowing the polygraph test into evidence. (In Ohio, polygraphs can only be admitted if both sides concede.) Yet there were conditions: The prosecutor wanted to use her own examiner and her own questions.
A few days before Sharma was supposed to fly out for the test, he got a call. The prosecutor had changed her mind. The examiner wanted Sacia also to take the test. And due to the trauma of rape, the tests were considered "unreliable" for victims, says Chief Assistant Prosecutor Brad Gessner. The talks were off.
Migdal feared he was now playing witness to a "Duke case in Akron," referring to the botched prosecution of the Duke University lacrosse team. So he had his client take the polygraph anyway, using the prosecutor's questions and examiner.
Then he contacted Dr. Louis Rovner, considered among the nation's foremost polygraph experts, and had him conduct a test as well. Sharma passed both times.
The odds of three experts all screwing up is "about one in a thousand," says Donald Krapohl, president of the American Polygraph Association.
To Migdal, the evidence was undeniable. But when presented with the results, Walsh again refused to admit them in court. "We never agreed for a polygraph to be a determinant in the case," Gessner says.
That's when Judge Judith Hunter took control. In late May, she ruled the tests admissible. "All three polygraphists used the most advanced computerized polygraph machines," she wrote. "All three individuals independently found that Mr. Sharma was not being deceitful during the examination."
Migdal was vindicated. Prosecutors were appalled. "Judge Hunter disregarded Ohio law," Gessner says. His office is appealing the decision.
Meanwhile, Sharma's trial is set for August. If he loses, he will never be able to practice law, so he tries not to think about such things. "In law school, we were taught that justice prevails," he says.
But as Walsh learned in the Elkins case, justice in Ohio is far from perfect.