Our prior post gives you the opportunity to watch the Ninth Circuit En Banc soundly thrashing an Assistant United States Attorney for implying he knew a key fact that was not in evidence as he argued in rebuttal for a criminal conviction. Prosecutorial misconduct!

The Court was quite pointed, especially Chief Judge Kozinski, “suggesting” that the government confess error and use the tape of the argument as instructional video for its prosecutors.

The United States Attorney for the Southern District of California wisely decided to do just that, no doubt to avoid a scathing decision from the Court. Here’s the government’s motion to vacate Maloney’s conviction and remand the case.  It’s really just two paragraphs which can be summed up as: We’ve all reviewed it, our prosecutor was wrong, and we will use the video to teach prosecutors the bounds of proper closing argument.

The residual problem, however, includes the number of judges that saw this misconduct and did nothing; the failure of the United States Attorney to confess error originally; the government’s continued defense of this indefensible conduct even at oral argument before the Court; and ,the irrefutable fact that the United States Attorney wouldn’t have done anything about it yet if Judge Kozinski and his colleagues had not forced them to do so.

Another round of applause for the Ninth and the judges on this en banc for seeing an injustice and correcting it!