Back in June, the Fifth Circuit reversed a conviction and sentence based on the good faith exception to the exclusionary rule.  United States v. Pope, 452 F.3d 338 (5th Cir. 2006).  Judge Jolly dissented from that holding “because [he] believe[d] the Leon good-faith exception applies, because the majority opinion reflects an erroneous view of the record, and because the majority engages in appellate fact-finding.” 

    I did not read the opinions when they were first entered in June, but the dissent is mighty powerful.  So powerful that, last week, the panel majority sua sponte reconsidered the arguments made by the dissenting opinion and concluded that they were well taken.  As a result, the panel withdrew the majority opinion and the dissenting opinion and replaced them with a unanimous opinion.  I checked the docket on this appeal and not sure how the sua sponte reconsideration worked, but I am certain that Ms. Pope was not too pleased.   Not surprisingly, she has obtained an extension to file a petition for rehearing/rehearing en banc.  This should be an interesting case to follow. 

    Even if you do not practice criminal law, read Judge Jolly’s dissent.  It is well-reasoned and well-written.  It shows that plain English can be interesting and persuasive and even snappy.