In an order dated Jan. 9, the U.S. Court of Appeals for the Third Circuit formally denied attorney H. Louis Sirkin's petition for an "en banc" reconsideration of the reinstatement of charges against Extreme Associates, Rob Black and Lizzie Borden.
The petition came about as a result of a Dec. 8, 2005 ruling by a three-judge panel of the Third Circuit, all appointees of conservative presidents, which overturned the well-reasoned ruling by District Court judge Gary Lancaster throwing out indictments against the defendants for interstate trafficking in obscenity. Notably, however, the panel did not deal with the substance of Judge Lancaster's ruling, but with what it considered to be a procedural defect, in that Judge Lancaster's ruling seemingly contradicted established precedent.
Sirkin's en banc petition, however, argued that the panel had misapprehended the defense arguments, which drew on substantive due process rights inherent in the U.S. Constitution's Fifth Amendment rather than the First Amendment – arguments which had not been made in previous Supreme Court obscenity precedent cases.
Nonetheless, Sirkin's en banc petition was rejected.
"The petition for rehearing filed by appellant [Extreme] in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service," wrote Judge D. Brooks Smith, the presiding judge of the original three-judge panel, "and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc, is denied."
Although not available for comment at press time, Sirkin has previously indicated that if his en banc petition failed, that he would seek to have the panel's ruling reconsidered by filing a petition for certiorari with the U.S. Supreme Court. That court is not required to grant such petition, however, and if it fails to do so, then the case would proceed to trial, probably sometime this summer.
