¶85 (dissenting) — I agree with the majority that the prosecutor engaged in misconduct throughout the trial, culminating in further personal attacks on defense counsel during closing argument, an argument in which the prosecutor also misstated the State’s burden of proof; characterized the defense argument as a “crock”; and spoke so softly to the jurors that neither the defense attorneys, the court reporter, nor the trial court could hear what he said. I disagree with the majority that we should conclude that this pervasive and serious misconduct was harmless.
*849A. Misconduct outside the Jury’s Presence
¶86 The majority assumes that misconduct or unprofessional behavior occurring outside the jury’s presence could not affect the jury’s verdict. But the misconduct in the jury’s presence does not show the extent to which the attorneys’ unrelenting misconduct and disrespect for the trial court permeated the trial. Accordingly, I set forth some samples of misconduct committed outside the jury’s presence to demonstrate how it infected the whole trial, engendering “ ‘a feeling of prejudice’ ” and undermining the sense of fairness. State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012) (quoting Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932)).
1. Acrimony and Examining Witnesses
¶87 Both Jennifer Holmes’s counsel and the prosecutor complained that the other party inappropriately interrupted when they questioned a witness, including questioning occurring in the jury’s presence. On one occasion, the prosecutor asked Holmes’s counsel not to yell as she questioned a witness; she responded that she “can yell and it’s a lot louder” and resumed her questioning. 19 Report of Proceedings (RP) at 1223. On another occasion, when Holmes’s counsel questioned a witness, the prosecutor said that Holmes’s counsel should ask her questions without badgering or assaulting the witness. Holmes’s counsel responded that she did not like “being screamed at and berated” by the prosecutor; she added that the prosecutor was “pissed off.” 20 RP at 1338. The prosecutor described Holmes’s counsel’s witness examination, saying:
This is silly. You want to ask stupid questions for four flippin’ weeks, you’re going to get a reaction from me, I’ll grant you that. I mean, this is the most ridiculous, pathetic, long-ranging cross-examination of a witness in history.
51 RP at 4307.
*8502. Acrimony and Disrespecting the Trial Court
¶88 The open hostility between the prosecutor and Holmes’s counsel displayed disrespect for the trial court and for the law itself. For example, not only did the prosecutor and Holmes’s counsel interrupt each other, they interrupted the trial court, at one point causing the trial court to ask, “Can I finish for once?” 42 RP at 3569. Other examples of disrespect to the trial court include the prosecutor telling the trial court that Holmes’s counsel’s request to interrupt the trial was “a joke” and “ridiculous” and that Holmes’s counsel wanted a “Burger King trial . . . [h]ave it my way.” 34 RP at 2557. At another point, the prosecutor told the trial court, “I didn’t object [earlier] because I was laughing so hard it was so stupid.” 53 RP at 4572-73. Later, the prosecutor told Holmes’s counsel that she was repeating herself; she replied by telling him to “kindly shut up.” 51 RP at 4309. The prosecutor then asked the trial court to instruct Holmes’s counsel not to repeat herself; Holmes’s counsel replied, “Maybe [the prosecutor] could borrow Your Honor’s gown and tell us all how to run this trial.” 51 RP at 4309.
¶89 In another instance, Holmes’s counsel told the trial court that the prosecutor’s comments were “obnoxious.” 44 RP at 3831. In response, the prosecutor said, “This is the same garbage that I was talking about days ago when I lost my temper in this courtroom, because it’s what she does.” 44 RP at 3833.
¶90 After another altercation between the prosecutor and Holmes’s counsel, the prosecutor told the trial court:
If I get one more comment out of counsel that I’m being rude in front of the jury, I’m going to friggin pop a gasket. It’s the most — and I know she’s smiling, she’s laughing, and she’s snotty, but it is the most unprofessional, unreasonable thing to do in a courtroom, and she knows it.
87 RP at 8100-01. Holmes’s counsel told the trial court that she believed the prosecutor was rude. The prosecutor re*851sponded, “I’m telling the Court right now, I’m going to ....” 87 RP at 8101. The trial court asked the prosecutor, “Going to bring your checkbook with you, too?”30 87 RP at 8101. The prosecutor told the trial court, “No, I’m going to ask the Court why a checkbook hasn’t already been produced because that was exactly what the Court was talking about.” 87 RP at 8101. These samples of misconduct, committed outside the jury’s presence, demonstrate more than the prosecutor’s and Holmes’s counsel’s treatment of each other; they show an unthinkable disrespect for the trial court and the whole trial process.
B. Misconduct during Closing Argument
¶91 Finally, the prosecutor capped his performance by whispering to the jury three times during his closing. After the court reporter stated she could not hear the prosecutor, the prosecutor commented only that the problem was defense counsel’s for talking to her client. In a posttrial motion for a new trial, the defendants raised the issue and both defense counsel filed supporting declarations. The declarations reported that after the trial court advised the prosecutor to keep his voice up, the prosecutor moved behind counsel’s table and shouted his next lines to the jury, which prompted the jurors to laugh. The prosecutor did not contradict this with an affidavit. Instead, he merely argued to the trial court that “it happens” during trials. 97 RP at 8985.
¶92 “In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed . . . prejudicial.” Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 98 L. Ed. 654 (1954). Once private communication with the jury is estab*852lished, the party making the communication can overcome the presumed prejudice by showing that the misconduct was harmless beyond a reasonable doubt. State v. Kell, 101 Wn. App. 619, 621, 5 P.3d 47 (2000); State v. Murphy, 44 Wn. App. 290, 296, 721 P.2d 30, review denied, 107 Wn.2d 1002 (1986). Thus, the State had the burden to overcome the prejudice. Kell, 101 Wn. App. at 621. Yet, the State did not offer an innocent explanation to the trial court and, on appeal, the State does not address the issue. Accordingly, our record still contains no information as to what the prosecutor whispered. And, we should presume prejudice. Remmer, 347 U.S. at 229. The majority concludes that the “record is sufficiently complete overall to allow review of Holmes and [James] Lindsay’s claims of prosecutorial misconduct.” Majority at 836. But without knowing what the prosecutor said to the jury, I am unable to agree.
C. Prejudice
¶93 The majority finds that the prosecutor committed misconduct by denigrating defense counsel. It also finds that the prosecutor minimized and trivialized the State’s burden of proof by using the puzzle analogy, comparing the reasonable doubt standard to everyday decisions, telling the jury it had to find the truth, and commenting on Holmes’s testimony. Majority at 837. We have previously reversed convictions where the same prosecutor’s office employed the same arguments. See State v. Walker, 164 Wn. App. 724, 726, 265 P.3d 191 (2011).
¶94 Nonetheless, the majority reasons that regarding Lindsay, his admission to using “zip ties” to restrain Lawrence Wilkey leaves only a “remote chance” the jury’s verdict was affected by the prosecutor’s misconduct. Majority at 836. Finally, despite acknowledging that there were “multiple improper statements,” the majority rejects the cumulative error doctrine, relying on the reasoning that “cumulative error does not apply where the errors are few and have little *853or no effect on the outcome of the trial.” Majority at 838. I cannot agree.
¶95 Our Supreme Court recently stated that “deciding whether reversal is required is not a matter of whether there is sufficient evidence to justify upholding the verdicts. Rather, the question is whether there is a substantial likelihood that the instances of misconduct affected the jury’s verdict.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 711, 286 P.3d 673 (2012). Thus, the “focus must be on the misconduct and its impact, not on the evidence that was properly admitted.” Glasmann, 175 Wn.2d at 711. Here, focusing on misconduct as in Glasmann, the impact of “powerful but unquantifiable material on the jury is exceedingly difficult to assess but substantially likely to have affected the entirety of the jury deliberations and its verdicts.” Glasmann, 175 Wn.2d at 712.
¶96 In addition, the majority concludes the prosecutor’s misconduct was harmless because the court instructed the jury to “disregard any argument not supported by the law” and to “ ‘disregard any conduct by an attorney that you consider unprofessional.’ ” Majority at 837, 838 (quoting 53 RP at 4605-06). Generally, we presume the jury will follow the court’s instructions, but we analyze possible prejudice from misconduct in the context of the whole argument, the issues in the case, the evidence, and the instructions. State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).
¶97 The cumulative effect of repetitive prosecutorial misconduct may be so flagrant that no instruction or series of instructions can erase their combined prejudicial effect.31 State v. Case, 49 Wn.2d 66, 73, 298 P.2d 500 (1956). Under the cumulative error doctrine, we may reverse a defendant’s conviction when the combined trial errors effectively denied the defendant her right to a fair trial, even if each error standing alone would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006); State v. Hodges, 118 *854Wn. App. 668, 673-74, 77 P.3d 375 (2003). In Walker, 164 Wn. App. at 739, we held that the prosecutor’s improper (1) comments regarding the fill-in-the blank argument, (2) comparing the reasonable doubt standard to everyday decision making, (3) telling the jury that its job was to declare the truth, and (4) misstating the law of defense of others had a cumulative effect warranting reversal.
¶98 Like Walker, this case “ ‘turned largely on witness credibility.’ ” Walker, 164 Wn. App. at 738 (quoting State v. Venegas, 155 Wn. App. 507, 526, 228 P.3d 813, review denied, 170 Wn.2d 1003 (2010)). Holmes testified that Wilkey did not protest her entering his home and he did not object to her taking her property. She also testified that she had contacted the Idaho police to pursue recovering her property. Lindsay’s statement to the police followed the same theme. He told police that he entered the victim’s home to help Holmes retrieve her own property. The majority mischaracterizes Lindsay’s zip-tie statement as an “admission[ ].” Majority at 836. But because Lindsay denied taking any property that did not belong to Holmes, his statement is not an admission of a crime. Although Lindsay acknowledged he “wrestled around” and “held” Wilkey, he explained that he did so because he believed that Wilkey was “going for the pistol” to stop Holmes and Lindsay from retrieving Holmes’s property. Clerk’s Papers (Holmes) at 88-89. The majority does not explain what crime, or element of a crime, Lindsay admitted with his zip-tie statement.
¶99 The State charged Holmes and Lindsay with burglary and robbery, alleging that the predicate crime for the robbery was theft of the victim’s property. During closing argument, the State argued that the predicate crime for the burglary “could be theft.” 95 RP at 8688. Instruction 40 told the jury that a good faith claim of property title is a defense to theft. Thus, if the jury had a reasonable doubt as to whether Lindsay and Holmes intended to commit theft during the incident, it should have acquitted them. Additionally, even if we consider Lindsay’s statement to be a *855confession, the jury could not consider it against Holmes. Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
¶100 Here, as in Glasmann, the jury needed to determine the intent of the defendant, thereby determining whether lesser included crimes were the appropriate conviction. Glasmann, 175 Wn.2d at 700. The Glasmann court found an “especially serious danger” that the misconduct affected the jury’s verdict because “nuanced distinctions often separate degrees of a crime.” Glasmann, 175 Wn.2d at 710. Here, as in Glasmann, the defendants conceded much of the conduct but denied the intent elements of the more serious crimes. Based on the prosecutorial misconduct here, I cannot say that “the jury would not have returned verdicts for lesser offenses.” Glasmann, 175 Wn.2d at 712.
¶101 Prosecutors are more than mere advocates or partisans; they represent the people and act in the interest of justice. State v. Fisher, 165 Wn.2d 727, 746, 202 P.3d 937 (2009). Although a prosecutor may act with a “ ‘fearless, impartial discharge of public duty,’ ” it must be “ ‘accompanied by a spirit of fairness toward the accused.’ ”32 Warren, 165 Wn.2d at 27 (emphasis and internal quotation marks omitted) (quoting State v. Charlton, 90 Wn.2d 657, 665, 585 P.2d 142 (1978)). That spirit of fairness is missing here. I agree with the majority that this case is similar to Steinhardt, where the trial took on a circus atmosphere and the court gave mild reproofs from which the jury may have believed that the trial court considered the prosecution’s tactics to be necessary and proper. People v. Steinhardt, 9 N.Y.2d 267, 271, 173 N.E.2d 871, 213 N.Y.S.2d 434 (1961). I am satisfied that the prosecutor’s personal attacks on defense counsel, his labeling counsel’s closing argument a “crock,” and his characterization of Holmes and her testimony (“funny,” “disgusting,” and “comical”) engendered prejudice that infected the whole trial. See Emery, 174 Wn.2d *856at 762. I am also unwilling to gloss over the prosecutor’s improper discussion of the burden of proof and reasonable doubt in closing, and his whispered comments to the jury. I would reverse and remand for new trials for both Holmes and Lindsay.
After modification to the unpublished portion of the opinion, further reconsideration denied February 8, 2013.Review granted at 177 Wn.2d 1023 (2013).
Judge David H. Armstrong is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.
After considerable unprofessional conduct, the trial court warned the parties if the behavior resumed, it would impose a $1,000 sanction, paid from the offending attorney’s personal funds and payable to a charitable legal assistance foundation. Yet the trial court never imposed sanctions.
For the most part, the trial court did not intervene to stop the behavior.
Unfortunately for the State, defense counsel has no comparable obligation to ensure that the State receives a fair trial.