(concurring).
I concur in the convincing opinion of the court reversing the judgment and awarding a new trial. Since there is to be a new trial, however, I believe we should now express our disapproval of the statement of the Assistant United States Attorney, which I read as the equivalent of an assertion that he was convinced from the evidence that would be produced that the defendant was guilty of the crime charged.1 By this assertion the prosecutor placed into the jury’s scales of deliberation the merits of his belief rather than the weight of the evidence.2
It has become a frequent practice for counsel in civil as well as criminal cases to tell the jury their conviction of the merits of their client’s cause. Usually it is difficult to suppress such improper statements at the time they are uttered without the risk of committing the greater harm of injuring the client’s case, and relief must be reserved for some general discussion in the court’s charge on the role of counsel.
In the present case the judgment of conviction is being reversed and a new trial awarded. In this circumstance we should not lose the opportunity to declare for the guidance of the bar in future cases and on the retrial of this case that such statements are improper and should not be made. The evil is aggravated where the statement comes from the *776government's attorney, who acts, as the Supreme Court said in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), “not [as the representative] of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
. The language, made in the prosecutor’s opening statement reads: “And I am convinced, as I am sure you will be when you hear the evidence and see it presented before you, that there will be no question but that defendant, Meisch, is guilty of the .crime charged.”
. On the subject of such statements see Sharswood’s Professional Ethics (4th ed. 1876), pp. 99 et seq.; and Appendix, pp. 183 et seq. discussing the conduct of Charles Phillips in Courvoisier’s case. See also Amer. Bar Assn’s Canon 15 of Profess. Ethics.