On February 25, 2013, the Ninth Circuit granted a habeas petitioner's request to rehear his case en banc in a case called Frost v. Van Boening.
Over dissent, the Ninth Circuit had originally affirmed the denial of habeas relief based on petitioner's claim that the restrictions placed on his attorney's arguments during summation violated his right to counsel. Here's how the dissenting judge characterized what happened:
"Ladies and Gentlemen of the jury, there are two separate and distinct reasons why you should find my client not guilty. Unfortunately, I may explain only one reason to you. (And a silent p.s.: I wish I could argue reasonable doubt to you, but I can't!)." This hypothetical summation mimics the extraordinary circumstances of Frost's closing argument, the legal equivalent of counsel having one hand tied behind his back. Due to a misunderstanding of state law, the trial judge forced Frost to "opt for one or the other" legitimate defense— arguing duress or putting the government to its burden of proof. This undisputed denial of the constitutional right to present proper argument on alternative defense theories created a Hobson's choice that violated Frost's Sixth Amendment Right to Counsel and his Fourteenth Amendment Due Process rights.
Should be a really fascinating en banc argument.