(dissenting). As the majority notes, the prosecutor’s *812closing argument was laden with fundamentally unfair and prejudicial statements1 — a number of which were similar to those that drew criticism to the prosecutor and a forewarning of impropriety from this court in Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 53 (2003).2 Given the host of prosecutorial errors in the closing, in my opinion, the defendant’s due process rights to a fair trial under art. 12 of the Massachusetts Declaration of Rights and the Fifth Amendment to the United States Constitution were tread upon.
It is the government’s obligation to conduct criminal trials fairly. This closing by the Commonwealth’s attorney was not fairly delivered. The government’s attorney has a “privilege and duty to argue the public’s case aggressively and resourcefully. However, this duty does not confer a license for impermissible argument.” Commonwealth v. Earltop, 372 Mass. 199, 205 (1977) (Hennessey, C.J., concurring). The attorney for the government must be and
“is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Berger v. United States, 295 U.S. 78, 88 (1935). This essential governmental obligation and the constitutional due process right underlying the conduct of criminal trials by the government are to be protected by the courts.
*813Where improper arguments presenting “ ‘prosecutorial errors’ are offered in case after case[, i]t is my thought that this court should in the future stand more ready to reverse the judgments in such cases, particularly when it appears that the simple precautions suggested herein have not been invoked.” Commonwealth v. Earltop, supra at 207 (Hennessey, C.J., concurring). The freewheeling argument in this case reflected none of the precautionary measures against prosecutorial error penned by Chief Justice Hennessey in Earltop. It may be said — particularly in light of the warnings posted in Commonwealth v. Deloney, supra — that this closing, rather than being delivered with any precaution, was delivered with recklessness.
I recognize full well that reversal of the convictions in this case because of the egregious errors in the prosecutorial closing argument would constitute an extraordinary measure. The majority, in a well-crafted analysis, effectively marshals the evidence, which, I acknowledge, appears to establish that the defendant was guilty on certain of the indecent assault and battery charges. However, even “where there was much evidence of the defendant’s guilt,” a highly improper and prejudicial closing argument by the prosecutor compels reversal. See Commonwealth v. Smith, 387 Mass. 900, 912 (1983). Guilt or innocence is not the province of appellate review.
“[I]t is not the appellate court’s function to determine guilt or innocence. . . . Nor is it to speculate upon probable reconviction and decide according to how the speculation comes out. Appellate judges cannot escape such impressions. But they may not make them sole criteria for reversal or affirmance. Those judgments are exclusively for the jury. . . . And the question is, not were they right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, in the total setting.”
Kotteakos v. United States, 328 U.S. 750, 763-764 (1946) (citations omitted). Accord Commonwealth v. Alphas, 430 Mass. 8, 21 (1999) (Greaney, J., concurring) (“Appellate courts do not *814sit as triers of fact. Any test concerning reversible error that requires an appellate court to determine whether a defendant is actually innocent [or, I would suggest, is actually guilty] is conceptually flawed because such a test converts the appellate function into the jury function in violation of their different purposes”). Rather, it is the rule of law — including the rule of proper closing argument — that guides appellate review.3
*815Rightfully, objection was lodged to this outrageous closing argument — indeed, a motion for a mistrial was pressed after the closing. Accordingly, appellate review scrutinizes the trial record for prejudicial error. An error will be deemed not to have been prejudicial only if an appellate court with “conviction is sure that the error did not influence the jury, or had but very slight effect. . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Kotteakos, supra at 764-765. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Although the evidence appears strong on the convictions for indecent assault and battery, I cannot with such firm conviction and surety say that the decision of the jury to render guilty verdicts on some but not all of the sexual assault charges was not substantially swayed by the flaws in this prosecutorial closing. Rather, I believe there was present such prejudicial error as to affect the very structure of the trial. See Commonwealth v. Flebotte, supra.
In considering whether there was such prejudicial error, I analyze the factors set forth in Commonwealth v. Santiago, 425 Mass. 491, 500 (1997), cert. denied, 525 U.S. 1003 (1998). In doing so, I conclude that this case does not meet four of the five factors, and the fifth factor is enigmatic — as it is in any jury split in verdicts. The Santiago factors are analyzed as follows: “[1] whether defense counsel seasonably objected to the arguments at trial [I consider that there was objection in this case]; [2] whether the judge’s instructions mitigated the error [I consider that there was no adequate jury instruction here4]; [3] whether the
*816errors in the arguments went to the heart of the issues at trial or concerned collateral matters [I consider the misstatements in this closing to be directed to core issues]; [4] whether the jury would be able to sort out the excessive claims made by the prosecutor [I consider that the closing errors here were deep and repetitive, and thus hard for a jury to sort out because so pervasive]; and [5] whether the Commonwealth’s case was so overwhelming that the errors did not prejudice the defendant [I consider that, if the evidence were deemed to be overwhelming, then one may query concerning the acquittals on various of the related sex offenses].” Ibid. See generally Commonwealth v. Kozec, 399 Mass. 514, 518-519 (1987).
For these reasons, in my judgment, the deep prosecutorial errors in the closing were so prejudicial as to warrant reversal. I understand the majority differs and rejects that there was prejudicial error because, according to the majority’s calculation, the evidence was overwhelming and “the verdict was reflective of the jury’s discernment and deeply rooted in the evidence, and it need not be overturned due to prosecutorial errors.” Ante at 811.
Even apart from my disagreement concerning the lack of prejudicial error arising from this closing, I differ, respectfully, from the majority affirmance for another, separate reason. That is, in a case such as this, notwithstanding that there may be strong evidence of guilt making it difficult for a defendant to show direct prejudice, there existed governmental errors that were so fundamental and so negative as to affect the fair conduct of trial. When there is this kind of error, I would look to, and invoke, the analysis that is applied in cases where such error is likened to a structural “defect affecting the framework within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). In other words, even apart from a defendant demonstrating actual prejudice, there are certain errors that may “render a trial fundamentally unfair.” Rose v. Clark, 478 U.S. 570, 577 (1986). The governmental misconduct in this case, I believe, was such as to warrant analogy to structural error cases concerning whether a criminal trial did not “reliabl[y] serve as a vehicle for determination of guilt or innocence.” Neder v. United States, 527 U.S. 1, 8 (1999). Cf. *817Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995) (“A constitutionally deficient reasonable doubt instruction amounts to a structural error which defies analysis by harmless error standards”). Accord Sullivan v. Louisiana, 508 U.S. 275, 280 (1993). I suggest by analogy to structural error cases — albeit I acknowledge that the analogy in the context of closing argument is far from perfect — that the no-prejudicial error analysis which leads to the affirmance of the convictions in the majority opinion cannot be sustained in this case.
In conclusion: first, because I believe there was prejudicial error5 and second, because I believe there was structural error in that core principles governing the conduct of a fair criminal trial were violated by this closing argument, I respectfully dissent.
The improper statements in the prosecutor’s closing are set forth in the majority opinion and will not be repeated here.
“Having been told the argument was impermissible beforehand, the prosecutor cannot cloak himself in ‘good faith.’ ” Commonwealth v. Rodriquez, 49 Mass. App. Ct. 370, 374 (2000).
In accord with such judicial scrutiny, our courts have reversed convictions in cases where the prosecutorial closing exceeded the bounds. See, e.g., Commonwealth v. Coren, 437 Mass. 723, 732 (2002) (prosecutors “should refrain from presenting hypothetical conversations not fairly inferable from the evidence before the jury”), quoting from Commonwealth v. Pope, 406 Mass. 581, 587 (1990); Commonwealth v. Harris, 443 Mass. 714, 732 (2005) (“[c]ounsel may not, in closing, ‘exploit!] the absence of evidence that had been excluded at his request’ ”), quoting from Commonwealth v. Carroll, 439 Mass. 547, 555 (2003); Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005) (“[p]rosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence”), quoting from Commonwealth v. Coren, supra at 730; Commonwealth v. Williams, 450 Mass. 894, 907 (2008) (the phrase “put in work” “improperly urged the jury to do something beyond impartial fact finding”); Commonwealth v. Silva-Santiago, 453 Mass. 782, 808 (2009) (at closing the prosecutor improperly “transformed . . . exculpatory . . . testimony . . . into inculpatory testimony”); Commonwealth v. Clarke, 48 Mass. App. Ct. 482, 487 (2000) (“[although a prosecutor may argue that the defendant’s story is a fabrication, ‘the prosecutor may not elicit evidence of the defendant’s silence ... to argue that [this was] evidence that the defendant fabricated his story’ ”), quoting from Commonwealth v. Beauchamp, 424 Mass. 682, 691 (1997); Commonwealth v. Buzzell, 53 Mass. App. Ct. 362, 371 (2001) (“[t]he judge’s instructions were not an adequate counterweight to the improper remarks”); Commonwealth v. Monson, 57 Mass. App. Ct. 867, 872 (2003) (prosecutor improperly urged the jury to consider evidence the judge had excluded); Commonwealth v. Hiotes, 58 Mass. App. Ct. 255, 260 (2003) (improper “to portray the defense as based on prejudice against the mentally ill”); Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 296 (2003) (closing “improperly suggested to the jury that it was impermissible for defense counsel to question the credibility of police officers”); Commonwealth v. Quinn, 61 Mass. App. Ct. 332, 335 (2004) (it is “totally inappropriate to suggest to jurors that they may be required to explain their verdict to anyone, even family members”), quoting from Commonwealth v. Sevieri, 21 Mass. App. Ct. 745, 754 (1986); Commonwealth v. Rivera, 62 Mass. App. Ct. 859, 861 (2005) (“the prosecutor improperly referred to facts not in evidence during his closing argument”); Commonwealth v. Baran, 74 Mass. App. Ct. 256, 283 (2009) (“[n]ot only did the prosecutor improperly encourage the jury to determine the verdict on the basis of sympathy for the complainants . . . but he also indicated that the jury would be answerable to the public should they elect to return a not guilty verdict, a result that the prosecutor implied would amount to a ‘thwart[ing]’ of *815justice”); Commonwealth v. Garcia, post 901, 902-903 (2009) (“In this case, the aforedescribed vindication-based errors in the closing had the ineluctable effect of ‘sweeping] the jurors beyond a fair and calm consideration of the evidence’ ”), quoting from Commonwealth v. Clary, 388 Mass. 583, 592 (1983).
“At no time did the judge focus on the transgression[s] at issue.” Commonwealth v. Beaudry, 445 Mass. 577, 585 (2005). There was no specific curative jury instruction directed to the plain and very bad flaws in this closing. Rather there was only a generic, rather hollow sounding, instruction as follows:
“The opening statements and the closing arguments that were just given by the lawyers, those are not evidence. The opening statement *816and the closing arguments are intended only to assist you in understanding the evidence and the contentions of the parties.”
The prosecutor’s closing misstatements should also, I suggest, be considered in light of the evidentiary error with respect to the DNA evidence. On this, the majority notes as follows:
“In sum, the statistics offered were not authorized by Commonwealth v. McNickles, [434 Mass. 839 (2001)], or the other DNA cases. Rather, the statistics were meaningless and improper. The jury would, however, have wondered why they were being presented. The prosecutor appeared to be arguing that the expert’s testimony was that the “genetic profile [of] what is in the perianal evidence is . . . very, very, very rare . . . [and] is highly inculpatory,” because the chances for “someone else to have contributed the DNA ... are one in a cabillion.” Essentially, the prosecutor seemed to be contending that, because the DNA profile of the perianal sample was exceptionally rare, and the defendant met part of the profile, it was highly likely that the DNA was the defendant’s. This was of course inaccurate and misleading. The DNA profile reflected a mixed sample, not one person’s. The likelihood that the defendant contributed to the mixed sample analyzed was not in any way calculated. The judge therefore abused her discretion in allowing the Commonwealth to offer statistics based on a product rule calculation over the repeated objection of the defendant. The question then becomes whether the error was harmless.
“[However, g]iven the overwhelming evidence of the sexual assaults and the defendant’s acquittal on the rape charges, [the majority] conclude^] that the defendant was not prejudiced by the Commonwealth’s improper use of the product rule statistics.”
Ante at 806. For the reasons stated, I differ.