NMCCA released its en banc reconsideration opinion today in United States v. Weston, __ M.J. ___, No. NMCCA 200600985 (N-M. Ct. Crim. App. Mar. 31, 2008) (en banc), a competing consent case. It isn’t on NMCCA’s web site yet, so I’ve posted it here.
I’ve only scanned it once. I’ll read it and post more later tonight, unless someone beats me to it. But here’s what immediately leaps out at me. In the panel decision, which you can find here, SSgt Weston prevailed 3-0, with Senior Judge Rolph and Judge Kelly joining Senior Judge Harty’s opinion for the court. Yet on en banc reconsideration, Senior Judge Rolph and Judge Kelly join every other NMCCA judge in voting to reverse the panel decision.
We discussed the panel decision here.