"If there is a verdict for her and she is ordered to be released, how can the verdict be changed so suddenly!!!!!!!!!"

That was the defendant's mom after Judge Cohn sentenced Shahrazad Mir Gholikhan to 29 months a week after sentencing her to credit time served. I've tried not to blog about the case because I was involved for a brief time early on in the litigation. Here is the intro from Vanessa Blum's article:

Shahrazad Mir Gholikhan, an Iranian woman accused of trying to export night vision goggles, thought her guilty plea last month would be her ticket back to her family.The federal prosecutor had recommended a term of time served for the 30-year-old mother's role in the illegal plot to trade with Iran, a U.S.-designated terrorist nation. U.S. District Judge James Cohn imposed the sentence at an April 25 hearing in Fort Lauderdale federal court.But on Tuesday that smooth resolution unraveled. Determining the sentence had been a mistake, Cohn extended Gholikhan's prison term from time served to two years and five months.Under the law, federal judges can amend sentences within seven business days that result from "arithmetic, technical, or other clear error."


Gholikhan's lawyer Bill Barzee had this to say:

William Barzee, Gholikhan's attorney, called the resentencing unfair and un-American, saying after the hearing that his client feels like she's back in Iran."I don't think it's fair to [agree on a sentence] and have someone plead guilty and then come back and ask the court for a do-over," Barzee said in court Tuesday.

And a sentencing professor commented:

Jonathan Rosenthal, a Fort Lauderdale defense lawyer who teaches sentencing at Nova Southeastern University, said he found a description of Gholikhan's resentencing "troubling" because the guidelines are only one factor judges should consider."I don't understand how on Monday a sentence of four-and-a-half months is reasonable, but on Tuesday, all of a sudden, that sentence is no longer reasonable," Rosenthal said. "Judges are not supposed to give guidelines any undue weight."

It's a valid point. If a sentence of credit time served is reasonable, how can a sentence of 29 months be reasonable the next day -- especially when the prosecutor had agreed to credit time served. If the situation was reversed -- and the defendant didn't like her sentence -- would a judge allow her to come back to court?

Ethics

Here's a little ethics question for my SDFLA readers on Monday morning:

Should the attorney-client privilege survive a client's death when revealing that client's statements (that he was the murderer and not the guy on death row) would save a man from death row or from life imprisonment (or any imprisonment)?

Those are the questions Adam Liptak examines in this NY Times article from a real life example. It's pretty dramatic that the judge is threatening the lawyer for revealing his dead client's statements:

STAPLES HUGHES, a North Carolina lawyer, was on the witness stand and about to disclose a secret he believed would free an innocent man from prison. But the judge told Mr. Hughes to stop.

“If you testify,” Judge Jack A. Thompson said at a hearing last year on the prisoner’s request for a new trial, “I will be compelled to report you to the state bar. Do you understand that?”
But Mr. Hughes continued. Twenty-two years before, he said, a client, now dead, confessed that he had acted alone in committing a double murder for which another man was also serving life. After his own imprisoned client died, Mr. Hughes recalled last week, “it seemed to me at that point ethically permissible and morally imperative that I spill the beans.”
Judge Thompson, of the Cumberland County Superior Court in Fayetteville, did not see it that way, and some experts in legal ethics agree with him. The obligation to keep a client’s secrets is so important, they say, that it survives death and may not be violated even to cure a grave injustice — for example, the imprisonment for 26 years of another man, in Illinois, who was freed just last month.


This is a classic law school hypo, and it's interesting to see how it is playing out in the real world. Monroe Freedman, the ethics guru, is quoted a bunch in the article. He would draw the line at saving someone from death row, but not life imprisonment:

Most experts in legal ethics agree that lawyers should be allowed to violate a living client’s confidences to save an innocent man from execution, but not to free someone serving a prison term, however long.
“I prefer to draw the line at the life-and-death situation,” said Monroe Freedman, who teaches legal ethics at Hofstra. “That situation is sufficiently rare that is doesn’t present a systemic threat. If that is extended to incarceration in general, it would end the sense of security clients have in speaking candidly with their lawyers.”
The questions get more complicated when the client has died.

So, SDFLA readers, what do you think?

And have a happy Cinco de Mayo!

Joe Cool defendant passes polygraph

Assistant Public Defenders Anthony Natale and Brian Stekloff, along with co-counsel Bill Matthewman, who represent Joe Cool defendant Guillermo Zarabozo, filed a motion yesterday to admit polygraph evidence. Here's the intro:

Mr. Zarabozo has passed scientifically valid polygraph examinations conducted by two separate, leading experts in the field of polygraph examination. Both experts have determined that Mr. Zarabozo truthfully answered questions that demonstrate he did not: (1) commit premeditated murder, i.e., shoot anyone; (2) conspire to commit murder; or (3) commit felony murder. The Eleventh Circuit has held that polygraph evidence is admissible to corroborate the testimony of a witness at trial–here, Mr. Zarabozo. See United States v. Piccinonna, 885 F.2d 1529, 1536-37 (11th Cir. 1989). Moreover, for the reasons discussed in detail below, the science of polygraph examination has evolved to a point where it clearly satisfies the requirements of Daubert. As Justice Potter Stewart stated, “Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.” Hawkins v. United States, 358 U.S. 74, 81 (1958) (Stewart, J., concurring). Any effort to deprive a jury from hearing the results of Mr. Zarabozo’s polygraph examinations would run contrary to Justice Stewart’s admonition and would impede justice in this case.

Apparently Zarabozo passed two different polygraph examinations. Here are the questions from the first polygraph:

“1. While on the Joe Cool, did you shoot anyone? Answer – No.
2. Before hearing the first gunshot, had you talked with Kirby Archer
about shooting anyone on board the Joe Cool? Answer – No.
3. Before hearing the first gunshot, had you talked with Kirby Archer
about stealing the Joe Cool? Answer – No.”

And from the second:

“Q1: Regarding what you knew before that charter boat the ‘Joe Cool’ crew was killed and
the boat hijacked last September 22, 2007: Do you intend to answer truthfully each
question about that” A1: Yes.
Q2: Other than what you now know: At any time before the crew members of the Joe
Cool were shot: For any reason did you really know that was going to happen? A2:
No.
Q3: When you said that before the shooting occurred on that boat the Joe Cool; that the
only reason you were on board, was to travel to Bimini and participate in pre-planned
security job with Kirby Archer, did you lie about that? A3: No.
Q4: When you said that you expected to participate in a future CIA assignment with
Kirby Archer either in Cuba or Venezuela after the Bimini security job was done: Did
you lie about that? A4: No.
Q5: When you said that you brought your handgun for use on the Bimini security job and
that it was never intended to be used by you or Kirby Archer to hijack that boat the
Joe Cool: Did you lie about that? A5: No.”

Looks like it was a busy day...

...in mag court.

Judge Gold to speak May 14

This should be a great talk. May 14th at the Banker's Club at noon. Cost is $35. RSVP to Lourdes Fernandez at Lourdes_Fernandez@flsd.uscourts.gov