State v. Brabson

I dissent from the denial of appellee’s motion for rehearing. Because I previously joined the Court’s opinion on original submission, I write separately to explain my reasons for believing that we should grant appellee’s motion for rehearing.

In retrospect, I should have been shown (as Judge Mansfield was) as concurring only in the judgment. On original submission, the outcome of Brabson was clearly correct. That is, there were at least two good reasons for holding that the District Attorney was not collaterally estopped from relitigating the issue of probable cause for arrest, even though the…