A recent U.S. Court of Appeals for the Seventh Circuit en banc decision opens a window into that court’s grant of petitions for rehearing. It is not a window any of us can open—the court sua sponte granted rehearing in a criminal case after the government, which lost before the panel, announced that it would not seek rehearing and that it did not oppose the immediate release of the defendant whose conviction the panel had reversed. The full court still reheard the case, reversed the decision suppressing the evidence on which the conviction was based, and kept the defendant in jail. Despite its unusual procedure, the decision reveals what the Seventh Circuit might be looking for when considering whether to grant rehearing.
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