¶33 (concurrence, in part, in dissent) — The majority affirms Richard Warren’s conviction in his second trial10 for first degree child molestation, in part, by stating that the prejudice Warren suffered when the prosecution misstated its burden of proof was cured by the trial court’s instruction to the jury on the reasonable doubt standard. Majority at 28.1 cannot agree that the violation of a right so fundamental as the presumption of innocence can be cured by the instruction given to the jury in this case. In my opinion, the “curative instruction” also misconstrued the reasonable doubt standard and in doing so, irrevocably prejudiced the defendant. I would follow the analysis set forth by the Supreme Court in Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), to hold that such an erroneous instruction from the court can never be harmless and instead requires reversal.
¶34 The prosecutor in Warren’s case mischaracterized the burden of proof three separate times; each time Warren promptly objected. After overruling Warren’s first objection to the prosecutor’s mischaracterizations, the trial court finally intervened when the prosecutor asserted that “rea*38sonable doubt does not mean . . . that you give the defendant the benefit of the doubt.” Report of Proceedings (Feb. 20, 2003) at 104. Upon objection to this statement, the trial court referred the jury to the written instruction on the reasonable doubt standard and gave further verbal instruction. The trial court concluded its verbal instruction on reasonable doubt by stating, “[s]o we are playing with words here in a sense.”11 Id. at 105. This statement to the jury paints the reasonable doubt standard as a game of semantics, mere words to be played with by the defense and the prosecution. Our system of justice and the defendant’s Sixth Amendment right to trial by jury and a presumption of innocence are not a game of words. As the majority notes, “ ‘[t]he presumption of innocence is the bedrock upon which the criminal justice system stands.’ ” Majority at 26 (quoting State v. Bennett, 161 Wn.2d 303, 315-16, 165 P.3d 1241 (2007)).
¶35 I agree with the dissent that Warren’s constitutional right to a presumption of innocence was violated. See dissent (Sanders, J.) at 40 (“[T]he prosecutorial misconduct directly and independently infringed on the ‘bedrock’ of our criminal justice system: the presumption of innocence.” (quoting Bennett, 161 Wn.2d at 315)). I disagree, however, that the violation of that right can be subjected to the constitutional harmless error doctrine. See id. The erroneous instruction in Warren’s case came from the judge, not the prosecutor. This falls squarely within the Supreme Court’s holding in Sullivan that “harmless-error analysis cannot be applied in the case of a defective reasonable-doubt instruction consistent with the Sixth Amendment’s jury-trial guarantee.” Sullivan, 508 U.S. at 285 (Rehnquist, C.J., concurring).
¶36 The Seventh Circuit has rejected arguments that the automatic reversal standard set out in Sullivan should also apply to prosecutorial comments misconstruing the *39burden of proof. Bartlett v. Battaglia, 453 F.3d 796, 801 (7th Cir. 2006) (“While we strongly disapprove of the prosecution’s clumsy attempts to discuss the burden of proof, these comments simply could not have poisoned the jury’s understanding in the same manner an erroneous jury instruction would have.”). However, as noted above, in Warren’s case the erroneous statement of the burden of proof requiring reversal of his conviction came from the judge’s instructions to the jury, not from the prosecutor’s arguments.12
¶37 As to Warren’s fourth trial, I cannot agree with the majority that the prosecutor’s use of the phrases “badge of truth” and “ring of truth” to describe the victim’s testimony was proper. However, as Warren did not object, I find that these comments were not so flagrant and ill intentioned that no instruction could have cured them. See State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). And, though there were other errors in Warren’s fourth trial, I would not go so far as the dissent to say that, taken cumulatively, these errors warrant reversal of that conviction.
¶38 Finally, I agree with the majority and Justice Alexander that the trial court did not err in prohibiting Warren from having contact with his wife.
C. Johnson, J., concurs with Madsen, J.As Justice Sanders notes in his dissent, Mr. Warren had four trials, two of which ended in mistrial. I refer to them as Justice Sanders does, in the order in which he was tried. Dissent at 39 n.13.
The full text of the prosecutor’s and trial court’s statements to the jury are set out in the majority opinion. Majority at 24-25.
I offer no opinion on whether or not this court would follow the Seventh Circuit’s reasoning in Bartlett and refuse to extend Sullivan to cases in which only the prosecutor misstated the burden of proof.