11th Circuit approves book banning -- case not over yet

By Julie Kay

So the 11th Circuit Court of Appeals has ruled in the controversial, three-year-old case of book banning brought by the ACLU against the Miami-Dade School Board. The court, in a 2-1 opinion, reversed U.S. Circuit Court Judge Alan Gold and ruled that the School Board was within its rights to yank the childrens' book Vamos a Cuba due to "factual inaccuracies."
The School Board had argued that the book -- part of a 24-volume series on life in different countries -- portrayed life under dictator Fidel Castro as essentially overly positive. The ACLU brought the case on constitutional/book banning grounds, and the school district has spent a quarter-of-million dollars defending it.
While school board members applauded the ruling, the ACLU promised a certain appeal. Lawyers there are currently deciding whether to request an enbanc hearing before the 11th or go straight to the U.S. Supreme Court, according to ACLU spokesman Brendan Hensler.
"This is the first case where a book was banned for what it doesn't say," Hensler said. "People recognize that book banning is not the solution -- that we shouldn't take books away but add more."
The books, which were replaced on the shelves of school libraries after Gold's ruling, will stay on the shelves until the litigation plays out, he said.
Interesting fact: it's unclear if any of the controversial books are even on the shelves any more. Most were checked out or stolen by souvenir collectors or angry residents.

Are you surprised by the 11th Circuit's ruling authored by Judge Ed Carnes? Will the U.S. Supreme Court take a book banning case?

Federal Bar reception

Over 500 lawyers and judges filled the downtown Hyatt tonight for the annual South Florida Federal Bar Association Reception. I forgot to snap pictures... Sorry.

Random thoughts:

I wonder if the judges dread it or whether they enjoy it.

It's also interesting to watch people work the room.

Lots of DBR reporters mingling...

More younger lawyers seem to be coming out. Many of the old guard weren't there.

Very few prosecutors showed up.

A sprinkling of state judges made an appearance.

South Florida Lawyer was there. Rumpole was not.

Breaking: Supreme Court Justice Ginsburg Undergoes Cancer Surgery

From NPR:

Supreme Court Justice Ginsburg Undergoes Cancer Surgery

Supreme Court Justice Ruth Bader Ginsburg has undergone surgery for pancreatic cancer, apparently at an early stage. The court said the 75-year-old Ginsburg had the surgery Thursday at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon. Dr. Murray Brennan. This was according to a release issued by the court.

"That's a nasty, impolite question."

That was Justice Scalia yesterday speaking to the Palm Beach Bar Association. From the Sun-Sentinel article:

In a room filled with some of Palm Beach County's most powerful people, it took a 20-year-old political science student to throw off U.S. Supreme Court Justice Antonin Scalia on Tuesday afternoon.Student Sarah Jeck stood in front of 750 people and asked Scalia why cameras are not allowed in the U.S. Supreme Court even though the court hearings are open, transcripts are available and the court's justices are open enough to go "out on book tours." Scalia was at the Kravis Center for the Performing Arts in part to do a book signing and wasn't happy at the question."Read the next question," Scalia replied. "That's a nasty, impolite question."Scalia's trademark mixture of humor, confidence and combativeness was on full display Tuesday at a luncheon put on by the Palm Beach County Forum Club and Bar Association.

***

After the luncheon, Jeck said she wasn't offended by Scalia's chilly response and was excited to see him speak. But that doesn't mean she agreed with him."I don't think that it should be up to him what parts the American people can and can't see of the judicial process," she said.

The DBR has more here. And Palm Beach blogger Grey Tesh has this:

Scalia on why there should be no cameras in the courtrooms, particularly in the trial (district) courts:"There's something sick about making entertainment out of people's problems."Maybe. but what about the public learning about minimum mandatory sentences for non-violent drug offenders? About the government not turning over crucial documents until the witness has testified? About how the agent gets to sit in and listen to everybody's testimony before he testifies? About how the snitch (the most culpable defendant) got 3 years for his "cooperation" testimony while his co-defendants are facing life for their minor roles?It's not just entertainment, it can be an education. That's what the American public will get if cameras were in the federal trial courts.Scalia also said "I should be the pinup boy for the criminal defense lawyers."

In the comments, there are calls for the follow up to what I called the most boring post ever. Here is one of the comments:

How about something less prurient and more generally worth noting: the 11th Circuit in an en banc opinion overruled its prior decision in United States v. Brown, 79 F.3d 1550 (11th Cir. 1996), finding that the district court did not err in using the pattern jury instruction for mail fraud, that is, not limiting the mail fraud statute to schemes that would deceive only prudent persons. No matter what your particular persuasion -- prosecutor, defense lawyer, judge, or even criminal -- this is an important decision in white-collar cases. http://www.ca11.uscourts.gov/opinions/ops/200513809op2.pdf

Well, there you have it.

CocoDorm allowed

The Herald headline is: "Judge OK's gay porn filming in Miami."

Headlines don't get much better than that, do they?

The Judge is Judge Cooke.

Here is some of the article:

The boys of Cocodorm -- Snow Bunni, J Fizzo, et al -- are staying put, after a federal judge ruled that the gay porn website has a right to film out of its Edgewater home.
Cocodorm.com features black and Hispanic men, known as ''dorm dudes,'' who share a webcam-filled house together.
Miami has tried to shut the house down, arguing it constitutes an adult business illegally operating in a residential area. The city's Code Enforcement Board in 2007 agreed, but Cocodorm responded to the code enforcement proceedings by suing in federal court.
From the outside, the Cocodorm house looks like any other residence. Those who want to see Cocodorm do so via the Internet, with a credit card. Last week, U.S. District Judge Marcia Cooke sided with Cocodorm, basing her ruling on a previous case involving the city of Tampa and another adult website, Voyeurdorm.com.
Like Miami, Tampa tried to use its adult-business zoning laws to close the ''dorm'' in question, in this case occupied by women.
But an appeals court, ruling in the website's favor, found that Voyeurdorm's customers weren't gathering at the Tampa home -- or anywhere else in Tampa. ''As a practical matter, zoning restrictions are indelibly anchored in particular geographic locations,'' the appeals court wrote. With Voyeurdorm, the court added, 'the public offering occurs over the Internet in `virtual space.' ''
Judge Cooke found that the same logic applied to Miami's Cocodorm. City legal staff tried to argue that wording differences between the Miami and Tampa ordinances meant the situations weren't identical, but Cooke disagreed.
''This argument must fail,'' Cooke, in her Jan. 27 ruling, wrote of the city's defense. While acknowledging Miami's ordinance did not contain the exact same language as Tampa's, Cooke wrote ``it is nonetheless its functional equivalent.''

Here's my question -- did Cooke's law clerks have to visit the site?

Cuban 5 cert petition

Read it here.

And here is the SCOTUS Blog post on the case.

Tom Goldstein who runs SCOTUS Blog is counsel of record in the Supreme Court for the five.

Stop the presses -- Snitch's misconduct not disclosed to defense

John Pacenti has the story here about the latest transgression -- this time in a health care fraud prosecution. Orlando do Campo and Joaquin Mendez have filed a lengthy motion arguing their client deserves a new trial. Here's the intro from the DBR article:

In the Justice Department’s stout-hearted fight against health care fraud in the heart of Hialeah, Orlando Pascual Jr. was the perfect snitch.
He was an insider who ran a durable medical goods scam called Med-Source Medical Equipment, and Washington prosecutors used him in at least three trials, court documents show.
Among the five known defendants Pascual helped put behind bars was Dr. Ana Caos, a general practitioner for nearly two decades who was accused of writing fake aerosol prescriptions for the treatment of chronic obstructive pulmonary disease. The 62-year-old is serving five years in the Coleman Federal Correctional Complex near Orlando.
But Caos’ Miami attorneys are trying to overturn her April conviction, saying in court documents that Pascual neglected to mention he ran yet another Medicare fraud with his brother-in-law at an HIV-infusion clinic called Medcore Group, billing the government for $5.5 million in fraudulent services.
Miami criminal defense lawyers Orlando do Campo of do Campo & Thornton and Joaquin Mendez, a solo practitioner, are incredulous that prosecutors informed the defense about Pascual’s second fraud after Caos’ trial, which means the jury didn’t hear the full extent of the government witness’ criminal exploits.
The lawyers said in a Jan. 15 motion for new trial that there is substantial reason to believe from documents filed in the new case that government agents with the FBI and the Department of Health and Human Services’ Office of Inspector General knew about Medcore in 2006 — two years before Caos’ trial.
Caos’ attorneys were informed of the latest charges against Pascual in a June 25 letter, two months after their client’s conviction and a month before her sentencing. The letter said investigators didn’t link Pasqual to the HIV-infusion clinic because his last name was misspelled "Pasquale." (That's my favorite part)
"It is undisputed that Dr. Caos’ trial was severely tainted by Mr. Pascual’s perjury," Caos’ 26-page motion reads. "There is overwhelming evidence to suggest that the government knew or should have known that Mr. Pascual lied on the witness stand."