¶37 (dissenting) — The majority holds the trial court improperly limited Joshua Frost’s closing argument and therefore violated his Sixth Amendment right to counsel. Nevertheless, the majority claims the error was harmless. But a trial court cannot limit a defendant from arguing a legitimate defense; such action renders the entire trial unfair. We should hold this is structural error and remand for a new trial.
Sanders, J.¶38 The United States Supreme Court has held a trial court’s refusal to allow defense counsel to present any closing argument violates the Sixth Amendment because denying a defendant the opportunity to make final arguments on his theory of the defense denies him the right of *784effective assistance of counsel. Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). When discussing the importance of a closing argument, the Court said:
The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.
Id. The majority relies on Herring, among other cases, to say, “Thus, where a trial court unduly limits the scope of defense counsel’s closing argument, it may infringe upon a defendant’s Sixth Amendment right to counsel.” Majority at 773. But this language is too weak — “may” connotes such an error might not affect a defendant’s Sixth Amendment right when in reality it must affect that right. A trial court is “given great latitude in controlling the duration and limiting the scope of closing summations.” Herring, 422 U.S. at 862. But if a trial judge unduly limits the closing argument, then he has strayed outside those wide boundaries and most certainly has violated the defendant’s constitutional rights. That violation can never be harmless.
¶39 An error is structural — and not harmless — when it “affect [s] the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). The entire framework of Frost’s trial was tainted because the jury was not privy to his full defense. No aspect of an attorney’s advocacy “could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.” Herring, 422 U.S. at 862. Only then can we have any reasonable assurance “the guilty [will] be convicted and the innocent [will] go free.” Id. In Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), the *785Supreme Court held a defective reasonable doubt instruction demanded automatic reversal because it “vitiates all the jury’s findings.” Here too this error vitiates the jury’s findings because we cannot know what the jury would have decided but for defense counsel’s final arguments.
¶40 Nevertheless, the majority looks to the “ ‘overwhelming untainted evidence’ ” test to claim the error was harmless. Majority at 782. But we are concerned here with arguments — not evidence. A jury interprets and understands the evidence through the lens of the attorneys’ final arguments. We cannot determine what evidence is or is not tainted because we do not know how the jury would have interpreted the evidence in light of the proposed arguments. If “it is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors,” State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946), surely too, it is impossible for courts to contemplate the probabilities a defendant’s closing argument had upon the minds of the jurors.
f 41 In facts similar to these, the Ninth Circuit Court of Appeals held it is structural error when a court erroneously precludes the jury from hearing a defendant’s full theory of the case. Conde v. Henry, 198 F.3d 734, 741 (9th Cir. 1999). In Conde, Conde had two inconsistent defenses to his kidnapping charge: (1) he was innocent of all charges or (2) alternatively, if he was guilty of kidnapping, it was for purposes of burglary and not for robbery. Id. at 737. The trial judge refused to allow Conde to argue in closing there had not been a kidnapping. The Court said: “By preventing Conde from arguing that no robbery had occurred and that he lacked the requisite intent to rob, the trial court’s order violated the defendant’s fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt.” Id. at 739. And most importantly, such error is never harmless:
The very framework within which the trial proceeded on the kidnapping charge prevented the defendant from presenting *786his theory of the defense and prevented the jury from determining whether all of the elements of kidnapping for robbery had been proved beyond a reasonable doubt. We conclude that Conde was deprived of a fair trial on the kidnapping charge.
Id. at 741; see also United States v. Monger, 185 F.3d 574, 578 (6th Cir. 1999) 0‘[T]he district court’s failure to instruct the jury on the lesser included offense of simple possession was an intrinsically harmful structural error which requires us to reverse.”); United States v. Mack, 362 F.3d 597, 603 (9th Cir. 2004) (“Deprivation of counsel is a structural error. By extension, so is deprivation of the right to present closing argument.” (citation omitted)).
¶42 Our constitution guarantees certain basic and fundamental protections to all criminal defendants, no matter how overwhelming the evidence may be. The right to present a full and proper defense is one of those guarantees.
¶43 I dissent.
Alexander, C.J., and C. Johnson and Madsen, JJ., concur with Sanders, J.