(dissenting) — I must dissent because I believe that the majority both ignored the facts of the case before us and misapplied the relevant law. The facts and the law instead require that we affirm the Court of Appeals which properly recognized that the circumstances of this case as a whole denied the Defendant his right to a fair trial.
Unfortunately, the majority has allowed the conduct of counsel to distract it from the real issues. Instead of focusing on the Defendant’s right to a fair trial, the majority focuses on the disrespect which defense counsel demonstrated toward the judge, unfairly downplaying the conduct of the trial judge in front of the jury and ignoring the Defendant’s nonparticipation in the conduct of his counsel and at least two instances of deficient representation that were cited by the Court of Appeals.
Unlike the majority, the Court of Appeals, and even the trial judge, understood the extent to which his conduct contributed to the events which transpired in this criminal trial. The trial judge correctly accepted admonition for his *525part from the Commission on Judicial Conduct. See Washington State Bar News, 37 (Oct. 1992). The Court of Appeals likewise recognized that the behavior of the attorneys, coupled with the inappropriate response by the judge, deprived the Defendant of the effective assistance of counsel. Judge Kennedy, joined by Judges Agid and Grosse, correctly determined that this was a battle between counsel and the court, waged, in part, before the jury. As Judge Kennedy stated:
This case requires reversal, not only because the performance of Garrett’s two attorneys was shockingly unprofessional and, in at least one instance, obdurately inept, but also because the trial judge was unable to keep his resulting anger and hostility toward defense counsel from spilling over into the court room and the jury clearly became aware of that anger and hostility.
State v. Garrett, unpublished opinion noted at 71 Wn. App. 1077, slip op. at 29 (1993).
The Court of Appeals also recognized that the outrageousness of defense counsel’s conduct, particularly when being reviewed by judges, could easily draw the focus of the reviewing court from the legal issues presented. Judge Kennedy was on target when she made the following observation:
Moreover, we believe that attorney discipline is better handled by our trial courts and by the Washington State Bar Association, subject ultimately to review and action by our State Supreme Court, than by means of turning an appellate cold shoulder to a plea for reversal in the face of clear prejudice to a defendant’s right to a fair trial.
Garrett, slip op. at 37.
Sadly, a majority of this court has elected to turn a cold shoulder on the prejudice to the Defendant’s right to a fair trial in this case. Although the majority recognizes that the disrespectful and unprofessional behavior of counsel provoked response from the judge, the majority refuses to draw the only reasonable conclusion — that the Defendant was deprived of a fair trial. The majority’s error truly comes to light upon closer examination of the trial judge’s role in the drama, the incidents between defense counsel and the trial judge that occurred before the jury, the proper standard of *526review, the fact that the Defendant did not participate or acquiesce in the actions of defense counsel, and two other instances of deficient performance on the part of defense counsel.
I
The Trial Judge’s Role
The majority’s review of the record in this case is off balance. This is clearly demonstrated by the majority’s word choices when describing the conduct of the trial judge and defense counsel. The trial judge’s conduct is described as "gentle and restrained”. Majority, at 520. In contrast, defense counsel’s conduct is described as "boorish, contemptuous, discourteous, disrespectful, insolent, obdurate, obnoxious, offensive, rude and uncouth”. Majority, at 522. A balanced review of the record, however, reveals that the judge’s conduct contributed significantly to the hostility which plagued this proceeding. The majority glosses over this fact so as to further its real concern here — that defense counsel failed to show proper respect for the court. This focus of the majority is most succinctly summarized by its following statement:
All judicial officers in this state are entitled to respect from lawyers admitted to practice in our courts. The trial judge in this case was entitled to no less.
Majority, at 522.
This monochromatic view of the dynamics involved in a lawsuit, and this one in particular, does neither the individuals involved, nor the legal profession at large, justice. Although distinguished from the attorneys who practice before them by black robes, judges and attorneys alike are no more than human beings of whom we expect professional conduct when operating in the sphere of the law. The human beings in this case lost sight of their professional responsibilities and allowed their personal feelings, frustrations, impatience, and anger to rule their conduct. Even though the conduct of counsel in this case was grossly unprofessional, this court must recognize the responsibility of the judge as well as counsel.
*527Respect flows in two directions. The judge sets the tone in any proceeding. As the Court of Appeals correctly noted, the trial judge has an obligation to maintain order and decorum in proceedings before the court. Garrett, slip op. at 33 n.14 (citing CJC 3A(2) and (3)). Moreover, judges should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom judges deal in their official capacity, and should require similar conduct of lawyers, and of the staff, court officials, and others subject to their direction and control. (Italics mine.) CJC 3A(3). It is the judge who has the power and authority in the courtroom. Irritation and impatience displayed by the judge will foster disrespect. If the judge fails to use appropriate measures to control and, instead, resorts to verbal exchanges, the tenor of the proceeding will necessarily deteriorate as clearly occurred in this case.
The stage was set for this unfortunate drama at the omnibus hearing approximately 1 week earlier, when defense counsel asked the court to order the prosecutor to turn over items of discovery. The judge presiding determined that the prosecutor was not then in possession of the requested items and declined to set a date for completion of discovery. Among the items requested at omnibus were the victim’s juvenile criminal record, photos .taken of the scene, and a report prepared by store security. Defense counsel complained that he did not wish to receive discovery on the day of trial.
When trial began a week later discovery had not been completed. Defense counsel attempted to bring this to the judge’s attention at an in-chambers pretrial conference. The judge immediately became impatient and irritable. He repeatedly blamed counsel, particularly defense counsel, for not dealing with the issues earlier. He complained that counsel were wasting his time and that unresolved discovery issues were not his problem. When defense counsel explained that the issues were being raised to ensure a fair trial the judge took offense stating, "[t]he implication is that I don’t?” Verbatim Report of Proceedings, at 17 (Apr. 1, 1991) *528(incorrectly dated April 1, 1990). Thus, it was the judge who set the tone for this 3-day ordeal.85
By the end of the first day the level of conduct by all the parties had deteriorated. Defense counsel wanted the court to recess the jury so that he could make a record of a sidebar ruling sustaining an objection to a line of questions on voir dire. The court declined to do so. Defense counsel then elected not to examine the last four venirepersons. Immediately following, in opening statement, defense counsel mentioned a portion of the victim’s criminal history, a prior assault and trespass, despite the fact that he had not received the victim’s criminal history. Pursuant to an objection by the prosecutor, the court recessed to chambers to discuss these developments. An accusation of unethical conduct was made by the prosecutor, countered by defense counsel’s accusation that the prosecutor deliberately withheld the criminal record. Defense counsel also accused the judge of making disparaging remarks about a potential juror and complained about the judge’s practice of conducting unrecorded sidebars. The judge took offense, responding that defense counsel should be "awfully careful” of his phrasing. Verbatim Report of Proceedings (Apr. 1, 1991), at 133. Regarding the sidebar complaint, the judge said, "I guess the inference I can draw, Mr. Smith, is that you think this court is pulling something shady or sneaky over here at the side bar and you’re getting some bad rulings and you want to be able to appeal”. Verbatim Report of Proceedings (Apr. 1, 1991), at 158.
The second day was worse than the first. The defense had subpoenaed the victim’s probation officer to testify regarding the victim’s criminal history. It is clear from the record that although the prosecutor had spoken earlier with the officer and was aware that she had these records he declined to advise her regarding disclosure to the defense. While defense *529counsel had subpoenaed the probation officer, counsel had not spoken with her prior to her appearance in court. The judge became irritated with defense counsel and said "I think that is our problem. This record ought to be clear. You two lawyers have not prepared the case properly”. Verbatim Report of Proceedings, at 10 (Apr. 2, 1991). This remark is followed by many pages of transcript which can only be described as bickering between defense counsel and the judge.
On the last day of trial, defense counsel told the judge that the Defendant would not be testifying. Among other reasons, defense counsel cited the following:
The defendant believes that the tone of voice that the trial Judge has used to the prosecution has been much different than the tone of voice that has been used to the defense.
Verbatim Report of Proceedings (Apr. 4, 1991), at 33. Other concerns were that the judge had threatened sanctions against his attorneys, accused them of being unethical, and that the judge had not "inquire[d] of the prosecution with the same vehemence . . . why they did not provide [discovery]”. Verbatim Report of Proceedings (Apr. 4, 1991), at 35. The judge, in part, responded:
I will say that if my tone of voice has been different, Mr. Garrett, it is because your counsel have baited me and to some extent prodded me, but that is not excuse for a court to use a different tone of voice and I will apologize if I have used a different tone of voice. It has, however, not ever been in the presence of the jury if it existed at all. . . .
Yes, I think I did accuse you of unethical conduct, Mr. Smith, but that was after you accused me of judicial misconduct and that is no reason to respond in that fashion. But things got a little out of hand, there is no question.
Verbatim Report of Proceedings (Apr. 4, 1991), at 43-44. As the judge recognized, and the record confirms, the conduct of the judge and counsel was, indeed, "out of hand”. Verbatim Report of Proceedings (Apr. 4, 1991), at 44.
II
Incidents In The Presence of The Jury
To support its result, the majority alleges that most of the vituperous exchanges were not made in the jury’s presence. *530The record, however, does not support that conclusion. In fact, the animosity was brought to the attention of the jury early on the first day of trial. During voir dire the judge sustained an objection to a defense question regarding where a prospective juror parked when shopping at the mall where the alleged crime was committed. The judge called a sidebar to discuss the objection and told counsel that he would allow time later to place the discussion on the record. Defense counsel then completed his questioning of that juror. After the next venireperson had been examined by the prosecutor, the defense attorney requested an opportunity to recess and make his record regarding the earlier ruling. The judge declined. Defense counsel then indicated that he had no questions. He also declined to question the remaining three venirepersons, stating that he had an objection which he wished to put on the record. The judge then decided to include the jury and the following remarks were made:
the court: Well I think the jury ought to know what is going on. There was an objection and I ruled against Mr. Smith on a point and he seems to think I was wrong so we have a disagreement.
mr. smith: No, I want it on the record.
the court: You will get in on the record.
Mr. Smith, you will get it on the record when the jurors are dismissed. You don’t need it before then because it isn’t going to affect the situation at all. All right?
Verbatim Report of Proceedings (Apr. 1, 1991), at 103.
On the morning of the second day defense counsel resumed his opening statement with a remark which blatantly violated the judge’s ruling regarding the victim’s criminal history. This followed a particularly unpleasant exchange in chambers which ended by cross accusations of judge and attorney "bashing”. Verbatim Report of Proceedings (Apr. 2, 1991), at 36.
mr. smith: The court has directed me not to go into this man’s —
mr. long: Objection.
the court: You don’t even have to talk about it[;] finish your opening statement.
*531mr. smith: But I think the testimony is going to show the man is not really lily white as the prosecutor would have you believe. Let’s go back to the scene at the mall. The testimony from the mall security and from anybody —
mr. long : Objection; personal opinions are improper. the court: They are improper. This is merely an opening statement and that is all.
mr. smith : Do you want to make it for me? I have a witness, Mel Mocabee, who is going to testify the lot is lit up with 1,000 watt bulbs. Do you not want to hear that either?
the court: You are mischaracterizing what I said. You can outline what the evidence will show, but no personal opinions.
Verbatim Report of Proceedings (Apr. 2,1991), at 38.
Later, following defense counsel’s cross examination of the victim, the prosecutor moved to reopen his direct examination and the following remarks were made:
the court: Do you want to argue about that?
mr. smith: At this point, no, only as to pants. I’m not going to have him up here talking to the guy about what he just went over his testimony about.
mr. long: I object.
the court: What he will be permitted to ask is what I rule he has a right to ask. I’m going to permit him to re-open. He can bring in anything that is relevant to the issues in this case and if you wish to attack that evidence, it is your prerogative and duty to do so.
Verbatim Report of Proceedings (Apr. 2,1991), at 122.
At a point later in the victim’s testimony the prosecutor was permitted to refresh the victim’s memory with the report prepared by police regarding the incident. Defense counsel objected and the following discussion ensued:
the court: Is the police report consistent with what this young man testified?
mr. smith: I don’t like that, whether or not it is consistent.
the court: I don’t care whether you like it or not. Is it consistent?
Verbatim Report of Proceedings (Apr. 2, 1991), at 127.
The impact of the conflict between counsel and judge on the jury was recognized implicitly by both the defense attorney and the judge. In his closing argument, defense counsel made a speech about the adversarial nature of the legal system. He then added,
*532Because of the nature of that, you may see at times that I get short with the judge or say things like that which I can see smiles on your faces or he is short with me or the prosecutor or whatever.
Verbatim Report of Proceedings (Apr. 4,1991), at 91.
In commenting on defense counsel’s closing remarks after the jury was excused, the judge said,
I think Mr. Smith, your effort to ingratiate yourself, in a [sic] the sense of the word, I guess, with the jury, in view of what I gather, you perceived the jurors or what you thought the jurors perceived in view of your conduct, didn’t sell very well.
Verbatim Report of Proceedings (Apr. 4, 1991), at 119. The prejudice resulting from these exchanges in the jury’s presence requires reversal under the reasoning of both State v. Levy, 8 Wn.2d 630, 113 P.2d 306 (1941) and United States v. Altamirano, 633 F.2d 147 (9th Cir. 1980).
HI
The Standard for Reversal
The majority misrepresents the standard for determining when a judge’s improper remarks require reversal. Citing Levy, the majority implies that reversal is not required because the judge’s remarks "were not 'reasonably calculated to influence the judgment of the jury’.” Majority, at 522. Whether the judge intended prejudice is not the standard articulated by this court in Levy. Rather, the court held that "[t]o warrant reversal, it must . . . appear that prejudice resulted, or could reasonably be presumed to have resulted, from such error”. Levy, at 644.
The court’s decision in Levy is instructional. In that case the trial judge warned counsel regarding certain lines of inquiry. After counsel disregarded the court’s admonitions the judge fined counsel $25 in the presence of the jury. When counsel offered to write a check the judge refused to accept it. The following day the judge admonished the jury, emphatically and at length, to draw no inference from the previous day’s occurrence. Trial counsel did not request a mistrial. The court recognized that where the contempt of counsel provokes the court’s rebuke, as occurred in that *533case, a judge may properly take action in front of the jury. Levy, at 642. Nevertheless, the court reversed, finding that the judge’s refusal to accept counsel’s check required a new trial:
The most obvious, if not the only, inference to be drawn from the trial court’s refusal to take counsel’s check being that the court distrusted counsel, the incident in question clearly belongs within the class of incidents the natural tendency of which would be to result in prejudice. In such a situation, this court should not speculate as to the actual effect of the trial court’s actions and remarks, and we are therefore constrained to hold that the matter constituted reversible error.
Levy, at 648.
Application of Levy in the instant case demands reversal. As in Levy, the conduct of counsel provoked the remarks made by the judge in front of the jury. Even though the judge’s improper remarks were provoked by counsel, Levy requires that we consider whether the judge’s remarks actually prejudiced the Defendant. If the remarks are in the "class of incidents the natural tendency of which would be to result in prejudice” then reversal is required. Levy, at 648. As in Levy, the incidents which occurred before the jury in this case are susceptible of only one inference — that the judge is hostile to the Defendant’s cause.
The Levy court recognized the tremendous influence of the judge over the jury’s attitude toward the parties. The court’s cite to language explaining the significant role of the judge in forming juror attitudes bears the attention of this court in the instant case.
"Persons accused of crime have the right to be represented by counsel whose usefulness shall not be impaired by any unfavorable remark or critical attitude on the part of the trial judge in the presence of the jurors, who are quick to observe, and apt to receive, hostile impressions which deprive them of that fair and unbiased mental attitude which every juror should at all times possess in order to do justice between the state and the defendant at the bar. ... As was said in State v. Phillips, 59 Wash. 252, 109 Pac. 1047 [(1910)]:
" 'The aid of counsel is guaranteed by the constitution to every person accused of crime, and this is universally recognized as one of the surest safeguards against injustice and oppression. Any conduct or statement on the part of the court *534that tends to impair the influence or destroy the usefulness of counsel is palpable and manifest error.’
Levy, at 643. Instead, the majority erroneously denies the Defendant here these protections by twisting United States v. Altamirano.
IV
The Defendants Nonparticipation and Defense Counsel’s Overall Deficient Performance
Apparently concerned that reversal would reward the Defendant for the outrageous conduct of defense counsel, the majority ignores the criteria justifying reversal outlined in Altamirano. Aside from the contradiction inherent in this conclusion, the majority misreads Altamirano to reach its result.
In Altamirano, the federal court observed that a reviewing court must distinguish between conscious unprofessional conduct and involuntary ineptitude to avoid the former being used to secure mistrial. Altamirano, at 150-51. In determining whether a fair trial had occurred, the court examined the conduct of both counsel and the judge, the defendant’s involvement with counsel’s conduct, and whether this conduct prejudiced the defense. Altamirano, at 152-54. In that case, there was no suggestion of improper responses by the judge in the presence of the jury. Moreover, the defendant in that case was fully aware of the actions of his attorney and was found by the court to be a knowing participant in the behavior. Finally, that court did not identify any failure in counsel’s performance beyond his unprofessional conduct.
In contrast, the trial judge in the instant case responded improperly to the unprofessional remarks of counsel in the presence of the jury. Further, as the Court of Appeals correctly found, the record here in no way reflects the Defendant’s participation or acquiescence. Garrett, slip op. at 35.
Most importantly, the Court of Appeals identified two instances of deficient performance in addition to the unpro*535fessional conduct of counsel, both, of which support that court’s decision to reverse. First, defense counsel stubbornly refused to brief the issue of whether the victim’s juvenile criminal history was admissible for impeachment. "As a result, Garrett was deprived of the potential opportunity of informing the jury that the complaining witness had been convicted of third degree theft, a crime of dishonesty.” Garrett, slip op. at 30. The issue of credibility was particularly significant in this case because no one witnessed the alleged molestation of the teenage victim by the Defendant, a victim with a lengthy history.
Second, the Court of Appeals noted that the Defendant had assigned error to the trial court’s ruling that defense counsel were not permitted to explore possible felony theft charges with a key state witness, Mr. Adams. Garrett, slip op. at 19 n.9. While defense counsel raged about the court’s ruling, they never provided bon the issue, losing any possibility for impeachment.
To justify its result, the majority attempts to limit the claim of ineffective assistance of counsel to the single issue involving unprofessional exchanges with the judge stating, "[t]here is no claim in this case that defense counsel committed errors in their representation of Respondent Garrett.” Majority, at 520. That is simply not correct. These two additional instances of counsel’s performance together, as well as each standing alone, constituted ineffective assistance. The fact that the majority wishes to use this case as a vehicle to emphatically deplore attorney misconduct does not justify ignoring the remaining flaws in defense counsel’s performance.
Conclusion
There is no question that the job of trial judge is difficult. Increasing caseloads and diminishing resources for the courts, prosecutors, and defense have increased pressure on the system. The Supreme Court is right to be concerned, even alarmed perhaps, by the extreme disrespect for the court shown by defense counsel in this case. However, our *536legitimate concerns should take the form of additional tools for the judges in this state, including educaiton in the use of sanctions and other appropriate methods of courtroom control. We should also remind judges that robes do not license ill temper and that personal restraint is more likely to foster attorney respect. Focusing on the attorney conduct, as the majority does in this case, begs these important issues.
The Court of Appeals deftly balanced these concerns against the right of the Defendant to a fair trial and correctly concluded that reversal is required. That decision should be affirmed.
Reconsideration denied November 3, 1994.
As the Court of Appeals pointed out, the judge’s irritation was, in part, misdirected since'the prosecutor did not fulfill his responsibility regarding discovery. As the court further noted, however, there is no excuse for the unprofessional conduct later demonstrated by defense counsel.