(dissenting) — Defendant Roberta Elmore orchestrated and facilitated a series of crimes that culminated in the home invasion of a disabled man and the brutal murder of innocent caretaker, Scott Claycamp. Elmore was convicted by the requisite unanimous jury of first degree felony murder, first degree burglary, first degree kidnapping, second degree assault, and conspiracy to commit robbery. The majority now reverses this conviction because one juror who refused to follow the law was replaced by an alternate in accordance with Washington law.
¶41 Washington’s statute is designed to protect the right to an impartial jury by requiring the judge to remove *782(excuse) from jury service those who will not or cannot properly perform jury service. The requirement is mandatory. According to the statute:
It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.
RCW 2.36.110.
¶42 There is no showing the judge below did not fully comply with the statute. Indeed, I assume that every judge in this state — at least every trial judge — reads and scrupulously applies this mandatory statute, which is designed to protect the right to jury provided in both the United States and Washington State Constitutions.
¶43 Three things readily apparent from reading this statute are worth reiterating. First, the language makes clear the obligation of the judge is mandatory: “It shall be the duty of a judge . . . .”
¶44 Second, the statute charges the trial judge with the discretion as well as the duty to make requisite findings: “any juror, who in the opinion of the judge, . . . .” (Emphasis added.)
¶45 Finally, the test for “manifested unfitness as a juror” includes bias or prejudice or “conduct or practices incompatible with proper and efficient jury service.”
f 46 The Washington jury system also provides for alternate jurors to be selected, thus allowing the replacement of any juror incapacitated or found in violation of the above statute. Under CrR 6.5,
[an] alternate juror may be recalled at any time that a regular juror is unable to serve, including a second phase of any trial that is bifurcated. If the jury has commenced deliberations prior to replacement of an initial juror with an alternate juror, the jury shall be instructed to disregard all previous deliberations and begin deliberations anew.
*783¶47 In this case, 14 jurors were selected and sworn by the judge to “well and truly try the case.” Report of Proceedings (RP) at 217. One such juror was properly discharged and replaced with an alternate. After several days’ deliberation, the resulting jury unanimously convicted defendant of murder, robbery, kidnapping, assault, and conspiracy to commit robbery. Clerk’s Papers (CP) at 116-27.
¶48 Defendant appealed, contending that she was deprived of her constitutional right to a unanimous verdict by a fair and impartial jury and thus denied due process of law. The Court of Appeals held for defendant. See State v. Elmore, 121 Wn. App. 747, 90 P.3d 1110 (2004). Without expressly stating whether its decision rests upon the United States Constitution or the Washington State Constitution or otherwise, this court agrees. The majority rewards the defendant with a new trial, requiring victims and witnesses (those not now dead or unavailable) to face still another trial.
¶49 Because I conclude the trial judge did not violate the United States Constitution or the Washington State Constitution by faithfully following our statute to assure a proper jury, and because I doubt the wisdom of encouraging gaming of our justice system, I dissent.
Discussion
¶50 Article I of our state constitution provides that “[t]he right of trial by jury shall remain inviolate.” Wash. Const. art. I, § 21; see also U.S. Const, amend. VI. Trial by jury serves as an important check and balance upon the executive and judicial branches, protecting the rights of individuals and providing the sovereign people of the State with an important, direct role in the administration of justice. See Wash. Const, art. I, § 1 (“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”).
*784¶51 Pursuant to our state constitution, this court has held that a criminal defendant in superior court has a right to be tried by 12 jurors. State v. Lane, 40 Wn.2d 734, 736-37, 246 P.2d 474 (1952); State v. Ellis, 22 Wash. 129, 60 P. 136 (1900). Our state constitution has also been held to implicitly recognize that unanimous verdicts are required in criminal cases. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994).10
¶52 There are no cases in this court that challenge a trial judge’s decision to remove a deliberating juror for cause, presumably because judges faithfully perform their duties. The few cases in the Court of Appeals have generally stated the law in a correct manner and so have not been reviewed by this court. See State v. Jorden, 103 Wn. App. 221, 11 P.3d 866 (2000) (holding standard of review for juror removal during trial is abuse of discretion); State v. Ashcraft, 71 Wn. App. 444, 859 P.2d 60 (1993) (holding standard of review for juror removal during deliberation is abuse of discretion).
¶[53 However, in this case the majority relies primarily upon a handful of federal cases that interpret the different federal rules and creates a new “heightened” standard: “[W]here a deliberating juror is accused of refusing to follow the law, that juror cannot be dismissed when there is any reasonable possibility that his or her views stem from an evaluation of the sufficiency of the evidence.” Majority at 778. The majority supplements this standard with a set of “guidelines” that includes a de facto rule requiring a judge to reinstruct the whole jury where one deliberating juror refuses to follow the law. Majority at 774. The majority faults this judge not for abusing her discretion but for failing to engage in the future-telling or mind-reading required to apply the majority’s new standard and guidelines, instead of the existing statute.
¶54 The majority’s standard, largely adopted from the federal case of United States v. Symington, 195 F.3d 1080 *785(9th Cir. 1999), ignores this court’s long standing rule that a trial court’s ruling is presumed correct. State v. Michaels, 60 Wn.2d 638, 641, 374 P.2d 989 (1962). See also State v. Muller, 114 Wash. 660, 661, 195 P. 1047 (1921). The long standing rule requires a reviewing court to accept a trial court’s ruling as correct unless an affirmative showing to the contrary is made.
¶55 Our Court of Appeals cases requiring a showing of abuse of discretion in reviewing trial judge’s dismissal of jurors are consistent with this rule. See Jorden, 103 Wn. App. 221; Ashcraft, 71 Wn. App. 444. The majority’s standard cuts against this rule by requiring that the juror cannot be removed for refusing to follow the law or instructions if there is any possibility that said juror has been accused of refusing to follow the law because of the juror’s views on the case.
¶56 The majority’s standard is not only contrary to our case law but also clearly unworkable. It may allow a blatantly unfit juror to remain if a scintilla of evidence can be produced that the request for removal has any connection with that juror’s view on the merits. Such a scintilla of evidence will nearly always be available, usually rendering trial courts powerless to remove unfit jurors once deliberations have begun.11
¶57 Ironically, the majority’s standard does not protect a defendant’s constitutional right to an unbiased jury. Under the majority’s standard, a trial court could not remove a deliberating juror who refuses to follow the law (for example, by professing that the State need prove only one out of four elements of a crime to convict), if that juror also evidences a view on the sufficiency of the State’s evidence. The majority’s standard places a serious strain upon a trial court’s ability to enforce RCW 2.36.110 and to thereby *786ensure an impartial and unbiased jury pursuant to the United States and Washington State Constitutions.12
¶58 California, which has a statutory provision much like Washington’s allowing for the replacement of a removed juror with an alternate,13 employs a more workable standard. In People v. Cleveland, 25 Cal. 4th 466, 21 P.3d 1225, 106 Cal. Rptr. 2d 313 (2001), the California Supreme Court rejected the reasoning here and in Symington and held that a juror could be constitutionally discharged if “it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate.” Id. at 484. This standard is sufficiently high to protect the defendant’s right to an impartial jury from judicial manipulation while allowing a judge prudential power to protect the parties from a biased or unfit juror.
¶59 Applying the “demonstrable reality” standard to the facts of this case, I would hold the trial judge’s decision is abundantly supported. A digression to the facts is appropriate because these facts are an unusually strong example of a judge’s appropriate removal and replacement of such a juror with an alternate.
f60 After the case was submitted to the jury, the jury foreman sent a note to the judge noting:
*787Your Honor:
As the presiding juror, I feel compelled to ask your assistance. We have a juror on the panel who has made statements which lead me to believe he was predisposed to not follow the instructions given by you or to follow the law contained in those instruction [sic].
Prior to adjourning on Thursday, this juror said, “I don’t care what the judge said. The law is shit and I won’t convict anyone based on what the law says.”
This juror has disregarded every witness statement regarding the defendant as credible.
Pl.’s Ex. 129.
¶61 A second juror sent a note that was less clear. This juror later confirmed that the first line of the note quoted the challenged juror as saying “I don’t care what law says.” Pl.’s Ex. 128.
¶62 Out of an abundance of caution, the judge held a brief hearing outside the presence of the jury in which the two jurors were separately asked whether the notes were written by them and were true and correct. Upon hearing this evidence, the judge indicated the record was probably sufficient to remove Juror 8. Counsel and the judge agreed to briefly question Juror 8 directly. At this inquiry:
Juror #8 admitted that he did say to the other jurors “that it does not matter what the paper says,” referring to the court’s instructions to the jury.
Br. of Resp’t at 5 (quoting RP at 1183).
¶63 The judge excused the juror and replaced him with one of the alternates. In a final written ruling the judge made the findings, which under the statute required removal:
1. Juror #8 has at times refused to participate in deliberations.
2. Juror #8 has stated that he refuses to follow the law as provided by the court including the statements, “I don’t care what the judge said. The law is shit and I won’t convict anyone based on what the law says,” and “I don’t care what the law says.”
*7883. The court finds the written and verbal statements of Jurors #5 and #12 credible.
Br. of Resp’t at 5-6.
164 The judge went even further to find that she had not relied upon an improper cause to remove the juror:
Juror number 8 . . . was not disqualified from further jury service because of any valid disagreement he may have had with other jurors, including disagreements regarding the credibility of witnesses.
Br. of Resp’t at 7 (CP at 293-324 (Finding 74)).
¶65 And the judge also concluded:
Juror number 8, Sidney Britton, manifested unfitness as a juror by reason of bias and prejudice and by reason of conduct incompatible with proper and efficient jury service.
Br. of Resp’t at 7 (CP at 293-324 (Conclusion of Law 9)).
¶66 The juror was properly removed in accordance with the statute setting out the judge’s “duty.” See RCW 2.36.110. There is no suggestion that the members of the jury who convicted Elmore were in any way unreasonable, unfair, or biased. From the record it is clear that there was a “demonstrable reality” that the dismissed juror was unable or unwilling to follow and apply the law. Accordingly, the trial judge did not abuse her discretion in dismissing the juror.
¶67 The majority, however, posits a new standard with corresponding guidelines and contends that “the trial court here departed from the general guidelines ... in several ways.” Majority at 775. Here, “several” refers to the judge’s decision not to reinstruct the jury, as well as the judge’s initial determination to exclude the juror prior to the testimony of the questionable (discharged) juror.
¶68 The majority improperly transforms a discretionary trial court decision concerning jury reinstruction into a categorical requirement. None of the majority’s cited cases support this new requirement, and there is no good reason for it. A decision to reinstruct the jury involves consider*789ation of particularized variables and contingencies that require discretionary decision-making by any trial judge. Jury reinstruction might be of help in certain circumstances, but it might not be in others. A judge could reasonably find that such an instruction would be futile in some cases for the reason that a repeated instruction would mean nothing to a juror who has professed an unwillingness to follow the law and instructions, as was the case with the juror here.
¶69 A trial judge could also reasonably find that the instruction could cause disruption to jury deliberation by placing the judge at odds with a particular juror or driving a wedge between deliberating jurors. It was undoubtedly apparent to the trial judge here that a juror who had vehemently refused to be bound by the court’s jury instructions the first time was even less likely to be bound through a repetition of those instructions.
¶70 Furthermore, the majority incorrectly admonishes the trial court for investigating the alleged juror misconduct and taking immediate action “rather than rein-structing the jury and allowing them to continue with deliberations.” Majority at 775. The majority disregards the fact that the trial judge heard testimony from the dismissed juror and issued specific findings supporting the dismissal. In those findings, the judge clearly indicated that the juror’s disregard of the law was the basis for the dismissal and also specifically found that the juror’s views about the evidence did not provide the basis for the dismissal.
¶71 Since it would be difficult to conclude that the judge’s conduct amounts to an “abuse of discretion” or to declare that her findings shouldn’t be trusted, the majority finds refuge for its second-guessing of the trial judge through enactment of the new “any reasonable possibility” standard. By placing the trial judge’s decision into a netherworld where discretion was not abused but where an as-yet-unannounced rule was not fathomed and applied by the judge, the majority justifies overturning the trial judge — and the jury verdict — in this case.
*790Conclusion
¶72 There is no claim here that our statute requiring judges to remove jurors who are unfit or unwilling to faithfully perform their duties is unconstitutional. The judge here properly applied the statute to a juror who refused to follow the law and thereby acted to assure a fair and impartial jury. The majority creates a new standard not found in the constitution for removing an unfit juror. Because this new standard is not in the interests of justice and not required by our statute or the constitution, I dissent.
By contrast, there is neither a federal constitutional guaranty of a 12 member jury in criminal cases nor a unanimous verdict requirement in such cases. See Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970); Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972).
The majority’s standard would not permit a trial judge to dismiss a juror who visits the crime scene, contacts the witnesses, or researches the case on the Internet if there is also reasonable possibility of that juror’s disagreement with other jurors over the evidence.
Juries embody the voice of the people, and the majority’s cited reference distinguishing between law-defining juries and conscience-driven juries is important. Majority at 769-71. Our constitution and laws do not permit intrusions into the inviolate conscience of jurors, but the majority’s standard seriously hampers a trial judge’s ability to excuse jurors who manifest unfitness through refusal to follow the law.
Compare Cal. Penal Code § 1089 (“If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate .. . .”) with ROW 2.36.110 (“It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.”) and CrR 6.5 (“[an] alternate juror may be recalled at any time that a regular juror is unable to serve .. . .”).