I agree with Justice Perren that the prosecutor's extended reference to 9/11 in this case was error, and also thought that Justice Perren (rightly) took the underlying issue seriously.
That said, the opinion highlights the problem of prosecutorial misconduct and the wholesale inability -- or unwillingness -- of the judiciary to do much about it. Judge O'Neill not only didn't order a mistrial (or even instruct the jury to disregard the comments) when the prosecutor made the improper analogy to 9/11, but also permitted the prosecutor to continue with these improper comments even after defendants objected. Justice Perren, by contrast, correctly holds the comments to be prejudicial, but holds that the error was harmless because (1) we presume that jurys follow the traditional instruction that closing arguments aren't evidence and (2) the evidence against defendants here was allegedly overwhelming. But if (1) is true then prosecutorial misconduct during closing argument is never reversible error, and this seems an extremely poor case in which to argue (2) given that (as far as I can tell from the opinion) the only evidence against defendants consisted of (notoriously unreliable) eyewitness identifications given over a year after the crime. This is hardly what I would traditionaly call "overwhelming" evidence against the accused.
Ultimately, I'm happy that the perpetrators of this crime are (allegedly) off the street. And for a long time. But I'm nonetheless somewhat displeased with how even conscientious judges -- including the ones here -- address prosecutorial misconduct. I think that the misconduct during closing argument here was pretty egregious. And for it to go forward without any effective sanction seems untoward.
