(dissenting) — Today the majority of the Washington State Supreme Court wrongly reverses the death sentence of convicted murderer Allen Gregory and reverses his earlier rape conviction involving a different victim. Both judgments — including the penalty — were imposed only after a jury deliberated fully and fairly. The majority’s result disregards two important constitutional provisions, both found in the first article of our constitution: the right of trial by jury (Wash. Const, art. I, § 21) and rights of victims (Wash. Const, art. I, § 35). The violation of those constitutional provisions is most apparent with respect to murdered victim Geneiene H. Our constitutional jury trial right is always entitled to protection because it finds truth and dispenses justice when it benefits defendants.
¶251 The court second-guesses an admittedly discretionary decision of a trial judge in an earlier rape trial, who declined the day before trial to review sealed custody files of the victim’s (R.S.) children. The trial judge’s decision was vindicated when these files later proved devoid of the prostitution evidence claimed. (I earlier dissented from this court’s order directing an in camera review.)
*887¶252 The majority’s undermining of the separate rape trial verdict provides a bootstrap by which it proceeds to undermine the penalty separately pronounced by a deliberative jury that found Gregory guilty of a horrific, aggravated murder and separately sentenced him to death for that crime.
¶253 The court finally makes an unwarranted conclusion: that a prosecutor’s remarks about prison life, which are within the common knowledge of everyday citizens and the jury — and not objected to at trial — also undermine Gregory’s death sentence.
¶254 I would uphold the first (rape/murder) jury’s carefully considered death sentence, as well as the other jury’s separate rape conviction. Each of Gregory’s convictions and the separate death sentence judgment resulted from proper decision-making by the respective trial courts and juries after long trials, during which Gregory’s rights were carefully protected. This included a two-month murder jury trial, followed by a penalty phase jury trial and deliberations with mitigating testimony over seven days.
¶255 The majority of this court infringes upon the province of the jury, one of the most sacred of our constitutional safeguards. The right to jury trial does protect rights of the defendant, but also those of the victims. The majority’s decision comes in total disregard of Washington’s “victims of crimes — rights” provision (Wash. Const, art. I, § 35) and the values that provision constitutionally incorporates. As a consequence, the victims and their families do not obtain the justice our laws and constitution assure. This is especially and sadly true for brutally murdered Geneiene H. I therefore dissent.
Facts
Murder of Geneiene H.
¶256 On July 27, 1996, Geneiene H. was brutally raped and murdered by Gregory in her home. She was by all *888accounts a totally innocent, blameless victim. Of necessity, I briefly summarize testimony the jury heard in the guilt phase of the trial for this crime. (An excerpt from the victim impact testimony from Geneiene H.’s mother can be found at page 903, infra.)
¶257 Geneiene H.’s clothes were cut with a knife. Her hands were bound so tightly as to cut circulation in her hands. While alive, she suffered numerous traumatic injuries and blunt force injuries to her face, torso, and extremities. She had two black eyes, a laceration on her right eyelid, forehead abrasions, and scalp hemorrhages. Her bruised left temple was consistent with a severe blow to her head.
¶258 There was a half-inch deep stab wound on Geneiene H.’s neck. Her blood was on the kitchen floor, and the blood pool indicated that she had been dragged through the blood to the bedroom.
¶259 Geneiene had three severe stab wounds to her back, inflicted with a single-edged knife. Those stab wounds were all at least three inches deep. One of the stab wounds was so deep as to penetrate Geneiene’s right lung. Another penetrated her left lung and cut her aorta. Geneiene would have been conscious for some time after being stabbed and continued to struggle against her violent attacker.
¶260 She had devastating neck injuries. Her neck was slit three separate times. One of the slices was seven inches long. Another was more than seven inches long and deep enough to cut through her windpipe and through her esophagus. The sixth vertebra in her neck was fractured. Her blood covered the wall and floor of her bedroom. These blood patterns were consistent with the throat wounds and indicate that she was alive at the time her throat was cut.
¶261 Later, there was no cash found in Geneiene H.’s house. Her purse was found in the bedroom, its contents dumped out on the bed and floor. Geneiene always wore a favorite pair of diamond stud earrings, which were never recovered.
*889¶262 There was extensive evidence of sexual assault. Gregory brutally raped Geneiene H., the horrifying details of which will not be repeated here but were described to the jury.
¶263 After Geneiene H.’s body was discovered, the Washington State Patrol Crime Lab (WSP Lab) obtained a DNA (deoxyribonucleic acid) profile from the sperm found, which was analyzed and retained. In 1998, Gregory was arrested for raping a separate, surviving victim, R.S. (discussed further infra). As a result of Gregory’s arrest for the later crime, a sample of his blood was collected and provided to the WSP Lab. A DNA profile was obtained on that blood sample. That profile matched the DNA profile obtained from the sperm on Geneiene’s bedspread. The odds of a random match between those profiles were 1 in 235 million.
¶264 The WSP Lab also obtained DNA profiles from vaginal swabs and from known blood samples of Geneiene H. and Gregory. The DNA profile from Gregory’s blood matched the DNA profile from the sperm fraction of the vaginal swabs. The odds of a random match between those profiles were 1 in 2,500. Samples of hair found on Geneiene H.’s body were consistent with Gregory’s hair.
¶265 Swabs and blood samples were sent to Forensic Science Associates in California. DNA testing was conducted. Gregory’s DNA profile matched the DNA profile from sperm found on Geneiene H.’s bedspread and her body. The odds of a random match between Gregory’s DNA and DNA from the evidence were 1 in 190 billion.
¶266 Following a two-month trial, Gregory was convicted by a jury of aggravated first degree murder. That jury found the State had proved the existence of the following aggravating circumstance:
The murder was committed in the course of, in furtherance of, or in immediate flight from a Rape in the First or Second Degree or a Robbery in the First Degree.
Murder Case Clerk’s Papers (MCP) at 2490.
*890¶267 Note that the separate crime against R.S. was not found as any aggravating circumstance; indeed, that crime was not even presented to the jury in the “guilt phase.” The jury’s finding of guilt for aggravated first degree murder was based entirely on the rape/murder of Geneiene H.
¶268 As required by law, a second hearing or penalty phase was to be heard by the same jury. The statutory purpose is to determine whether there are not sufficient mitigating circumstances to merit leniency, instead of a death sentence. RCW 10.95.040. A “mitigation specialist” was hired for Gregory by the State for this separate penalty phase of the trial. That trial was held before the same jury that convicted him of Geneiene H.’s murder.
¶269 The jury later determined, as required by RCW 10.95.060(4), that there were not sufficient mitigating circumstances to merit leniency, and Gregory was sentenced to death. He appealed to this court.
Earlier Rape of R.S.
¶270 R.S. testified that on the evening of August 20, 1998, she left an acquaintance’s house to return home. She stopped briefly to speak to another acquaintance she ran into along the way. While speaking with this acquaintance, R.S. spotted a vehicle that she mistakenly believed belonged to a friend. R.S. went over to the car only to discover the driver was Gregory. He offered her a lift home. After initially refusing the offer, R.S. got into the car. When Gregory failed to turn where R.S. directed, she became worried and examined the door to get out. Gregory pulled a knife and drove behind a school; he kept driving when he saw a group of kids there. He eventually stopped the car, grabbed R.S.’s hair, and held the knife against her head. At knifepoint, Gregory proceeded to orally, vaginally, and anally rape R.S. Further details of Gregory’s violent rape of R.S. are set forth in the majority opinion.
¶271 Afterward, Gregory pushed R.S. out of the car. She managed to remember the license plate number of Greg*891ory’s vehicle. Detectives determined that Gregory was the owner of the car matching that license plate.
¶272 Following his arrest, Gregory denied he had any contact with R.S. He detailed to detectives a complete alibi for that night. After obtaining a search warrant, police searched Gregory’s car. They discovered the “buck” knife as well as a condom. The condom had the same lot number as a condom wrapper found by an officer at the crime scene. A forensic scientist with the WSP Lab compared the rape kit seminal fluid with a sample of blood. He testified that 1 in 360 African Americans would have DNA similar to Gregory’s.
¶273 A jury subsequently found Gregory guilty of three counts of first degree rape. Gregory appealed to this court.
Analysis
R.S. Rape Conviction Reversal — Denial of in Camera Request
¶274 In Gregory’s rape trial, defense counsel requested the trial court to review sealed dependency files relating to R.S.’s children. Defense counsel sought to find nonexistent evidence that R.S. had recently engaged in prostitution to bolster Gregory’s latest defense. After dropping the alibi defense, Gregory had claimed the sex was consensual (i.e., prostitution). The majority wrongly holds that the trial court erred by not conducting an in camera review of those sealed child dependency files.
¶275 I dissented from an earlier order of this court directing the in camera review, but the review was conducted by another judge, revealing no evidence of recent prostitution. Gregory’s rape conviction should be upheld. I shall summarize why the trial judge was correct (and later vindicated).
¶276 This court has held: “In order to make an adequate threshold showing to justify an in camera inspection, a defendant must make a particularized factual showing that *892information useful to the defense is likely to be found in the records.” State v. Kalakosky, 121 Wn.2d 525, 550, 852 P.2d 1064 (1993). See also Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).
¶277 A criminal defendant may not require the trial court to search through a privileged file without first establishing a basis for his claim that the file contains material evidence. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982). Evidence is material only if there is a reasonable probability that it would impact the outcome of the trial. Ritchie, 480 U.S. at 58 n. 15. A reasonable probability is probability sufficient to undermine confidence in the outcome. Id. The decision whether to conduct an in camera review of privileged records is subject to an abuse of discretion standard. Kalakosky, 121 Wn.2d at 549-50.
¶278 Here, when defendant’s trial counsel sought an in camera review of sealed dependency files of R.S.’s children, the sole argument was that he “supposed” that the files might contain information that R.S. had been engaging in prostitution. This request was made on the day the case was set for trial. The trial court denied the request, citing the privileged nature of the dependency files and privacy interests of R.S.’s children. The trial court also granted defense counsel’s request to reinterview R.S. to ask her about alleged prostitution activities from 1995 through 1998.
¶279 Upon these facts, the majority does not establish that the trial court’s denial of an in camera review was an abuse of discretion. The majority’s conclusion seems to reflect a presumption favoring any defense request for in camera review of confidential material. That is surely not the standard set in our cases.
Subsequent in Camera Review Confirms Trial Court’s Ruling: No Evidence of Prostitution
¶280 In camera review was ordered by the majority of this court (over my dissent) and revealed that the prostitu*893tion information sought by the defendant did not exist. Unfazed, the majority today compounds its earlier erroneous conclusion that the trial court abused its discretion. The majority now insists that other evidence in those files might be material. On that basis, the majority reverses the rape conviction. I strongly disagree and confidently predict this case has limited value as precedent, since it will be overruled or disregarded in any case not involving death penalty proceedings. It has been said bad cases make bad law, but this is true only if a court allows it.
f281 The majority points to information in the child dependency files indicating a June 2000 drug relapse by R.S., which contradicts R.S.’s statement in a 2000 interview that she had not used drugs since 1999. (Both dates are years after the crime of which R.S. was the victim.) The trial court conducting the in camera review concluded that such information may be relevant but did not decide it was material. The majority concludes that the information was material and that failure to produce that evidence, day of trial, constitutes reversible error. The majority is incorrect, and the analysis is unlikely to be viable precedent.
Evidence Rule (ER) 608(b)
|282 The majority’s holding is that Gregory could have impeached R.S.’s credibility by using the files on cross-examination to ask whether she had lied in an August 8, 2000, interview about her drug use after 1999. This is erroneous in light of ER 608(b). It bears reminder that this crime was committed in 1998, two years before.
¶283 Evidence of a witness’s prior misconduct is only admissible if it is probative of the witness’s character for truthfulness or untruthfulness pursuant to ER 608. ER 608(b) goes on to provide, in pertinent part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of *894the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness ....
(Emphasis added.)
¶284 The majority’s conclusion that the information was material overstates its importance because defense counsel could not have introduced the testimony of the social worker whose affidavit was in the (sealed) dependency file. This affidavit would not be admitted under ER 608(b).
The Dependency Files Did Not Contradict Testimony about a 1998 Crime
¶285 It is not reasonably probable that the outcome of the trial would have been different even had the jury heard evidence that R.S. had once lied about drug consumption (years after the rape). Such impeachment does not contradict any evidence adduced at trial. The jury already heard evidence that R.S. consumed drugs and alcohol on the day of the rape. The jury did not hear any evidence suggesting that this drug consumption was a one-time incident or occurred only in R.S.’s past. Because R.S.’s testimony did not include statements inconsistent with the August 8, 2000 interview, ER 613(b)’s provision for admission of extrinsic evidence to prove prior inconsistent statements clearly does not apply.
Other Means of Impeachment Were Available to Gregory
¶286 Defense counsel’s cross-examination of R.S. reveals many available means of impeachment. Alternative measures for impeachment are significant in determination of the materiality of undisclosed evidence.
¶287 Here, defense counsel impeached R.S. by adducing that she had been convicted of several crimes of dishonesty — including five convictions for theft in the third degree. Defense counsel also impeached R.S. by adducing she *895had given a false name to police on several occasions. Further, defense counsel adduced that when R.S. provided a statement to Detective Pollard about what had happened, she twice mentioned that Gregory had held a gun to her head rather than a knife. Moreover, defense counsel generally tried to impeach R.S. with her inability to recall details of the events.
¶288 Since Gregory was availed of ample means of impeaching R.S.’s credibility besides confronting her with one false statement as to the last time she had consumed drugs after the crime, the trial court would have been within its discretion in denying admission under ER 608(b).
¶289 The jury heard much impeachment evidence regarding R.S. but still believed her version of events rather than Gregory’s. Gregory had been very inconsistent in his statements about the night of the rape. Detective DeVault testified that Gregory first claimed an alibi. Gregory later denied any contact with R.S. on the night of the rape. He later denied ever having sex with R.S. in his car. At trial, however, Gregory claimed there was sexual contact with R.S. in his car but that it was a consensual act.
¶290 The jury could assess which version — Gregory’s or R.S.’s — was more consistent with the evidence. That R.S. might have once lied about drug usage years later in 2000 would not have conceivably changed the outcome of the trial.
Materiality Is Tied to the Specificity of the Request
¶291 It is also important that the in camera review of the dependency files ordered by this court revealed no information regarding prostitution. In a United States Supreme Court case involving a remand for an in camera review, that court noted that “the degree of specificity of [the defendant’s] request may have a bearing on the trial court’s assessment on remand of the materiality of the nondisclosure.” Ritchie, 480 U.S. at 58 n.15. While the trial court here declined to address the materiality of the information, *896this court should follow Ritchie’s guidance and consider whether it fell within the parameters of the original request.
¶292 Evidence of prostitution was the sole reason defense counsel sought the dependency files. It cannot be said that the trial court wrongfully denied Gregory access to evidence that does not exist. It certainly cannot be said that the trial court’s denying Gregory’s access to nonexistent information amounts to an abuse of discretion. The mere possibility that an item of undisclosed information might have helped the defense does not establish “materiality” in the constitutional sense. United States v. Agurs, 427 U.S. 97, 109-10, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).
¶293 Unlike the majority, I would also uphold Gregory’s rape conviction by a jury that fully and fairly considered all relevant evidence.
The Appropriate Remedy Is a Stay of the Death Sentence
¶294 Even if I were to agree with the majority’s reversal of Gregory’s convictions for the rape of R.S., I would not reverse Gregory’s death sentence stemming from the homicide case. At most, I would stay the decision on Gregory’s death sentence pending retrial for the rape of R.S. If he is reconvicted, the death sentence should stand.
¶295 Gregory was found guilty of the murder after a two-month trial. After that trial’s completion, a special sentencing proceeding was held. See RCW 10.95.050. The same jury sentenced Gregory to death after that sentencing proceeding. The jury had first concluded Gregory was eligible for the death penalty when including in the guilty verdict a finding of an aggravating factor in the commission of the murder, namely, the robbery or rape of Geneiene H. See RCW 10.95.020.
¶296 Then, after separate penalty proceedings, the same jury declined to find any mitigating circumstances warranted leniency for Gregory. See RCW 10.95.030(2), .060(4), .070.
*897|297 The murder trial and sentencing were separate proceedings before the jury. Gregory’s conviction at trial for the murder of Geneiene H. was not affected by the later disclosure to the jurors of Gregory’s prior conviction for the rape of R.S. Rather, such disclosure only pertains to the jury’s sentencing phase.
¶298 Even under the majority’s mistaken analysis, the ultimate outcome of the retrial for the rape of R.S. should determine whether or not the disclosure of Gregory’s rape convictions to the jury in the homicide case affects his death sentence. Such a disposition would respect the rights of the murdered victim and respect the decisions of the jury.
Disclosure of Prior Rape Convictions Most Certainly Inconsequential
¶299 The majority’s reversal of Gregory’s death sentence is all the more regrettable in light of the jury verdict of guilt and its finding of aggravating factors in the murder of Geneiene H. MCP at 2488, 2490. Disclosure of Gregory’s R.S. rape conviction impacted neither of these determinations. Gregory was found guilty and deemed eligible for the death penalty separate and apart from his prior rape conviction. Id. (“The murder was committed in the course of, in furtherance of, or in immediate flight from a Rape in the First or Second Degree or a Robbery in the First Degree.”). Instead, the disclosure of Gregory’s rape conviction as part of his long criminal record was only part of the jury determination whether mitigating factors warrant leniency.
¶300 The jury in the murder case endured a two-month trial, some of which was summarized at the beginning of this opinion. The jury deliberated and ultimately convicted Gregory and found aggravating circumstances without any mention of his separate conviction for the rape of R.S.
¶301 At the penalty proceeding, the transcript of arguments and testimony presented to the jury spans some 500 pages. A handful of passing references were made to Greg*898ory’s rape of R.S., but the jury was provided with all of Gregory’s criminal history. The overwhelming preponderance of the arguments and testimony focused upon the horrific murder of Geneiene H. and defense counsel’s insistence that mitigating factors justified leniency. As the prosecutor argued to the jury: “For the crimes against Geneiene [H.] alone, you don’t need anything else to find that this defendant deserves the death penalty.” Murder Case Verbatim Report of Proceedings (MRP) at 7747.
¶302 Although our statute places upon the State the burden of demonstrating that aggravating circumstances outweigh mitigating circumstances, “the defendant appropriately bears the burden of proffering mitigating circumstances — a burden of production.” Kansas v. Marsh, _ U.S. _, 126 S. Ct. 2516, 2527, 165 L. Ed. 2d 429 (2006); State v. Benn, 120 Wn.2d 631, 668, 845 P.2d 289, cert. denied, 510 U.S. 944 (1993). See RCW 10.95.060(2).
¶303 Here, most of the testimony at the sentencing hearing was provided by witnesses favorable to Gregory, asking for leniency. The jury also heard victim impact testimony provided by Geneiene H.’s mother, see Wash. Const, art I, § 35; MRP at 7239-52, and brief rebuttal testimony of a former employer of Gregory, MRP at 7667-80. The jury heard from 12 witnesses called by defense counsel. See testimony in MRP beginning at 7345, 7356, 7376, 7472, 7493, 7502, 7508, 7549, 7567, 7594, 7636, and 7664. The jury even heard a “mitigation specialist” hired by the State to testify on Gregory’s behalf. MRP at 7636. The jury plainly rejected defense counsel’s best offerings of mitigating evidence on behalf of Gregory and concluded there were not sufficient mitigating circumstances to merit leniency. See RCW 10.95.060(4). For a likely explanation of the jury decision, reread pages 888-89, supra (crime description summary).
¶304 To be sure, this court is constrained by United States Supreme Court precedent holding that if the sentencer was allowed to “hear evidence that would not otherwise have been before it,” due process mandates *899reversal. Brown v. Sanders, 546 U.S. 212, 126 S. Ct. 884, 891, 163 L. Ed. 2d 723 (2006). Nonetheless, common sense and the record show that this jury was overwhelmingly focused upon the murder of Geneiene H. At most, the judgment should be stayed to allow retrial of the separate rape case. If convicted, there is no reason to vacate the sentence for the rape and murder of Geneiene.
Closing Argument Misconduct — Comment on Prison Conditions
¶305 The majority also wrongly holds that the prosecutor’s reference to prison conditions in closing arguments of the murder trial’s penalty phase requires reversal of Gregory’s death sentence. For reasons that follow, I disagree with the majority.
¶306 To demonstrate improper prosecutorial argument, a defendant must show both the impropriety of the attorney’s comments and their prejudicial effect. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). To demonstrate prejudice, the defendant must establish a substantial likelihood that the misconduct affected the jury’s verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). The majority wrongly concludes that Gregory satisfies these burdens.
¶307 Improper arguments of counsel should be objected to at trial so the judges can cure by stopping the objected-to arguments and instructing the jury. Where, as here, the defense fails to object to an improper comment at trial, any claim of error is deemed waived unless the prosecutor’s remarks were so flagrant and ill intended that any resulting prejudice could not have been neutralized by a curative instruction to the jury. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
¶308 The majority concedes the defense counsel did not object to statements regarding prison life made by the prosecution during closing argument. Majority at 864-65. Rather, Gregory’s counsel made several pages of similar *900remarks in defendant’s closing argument. MRP at 7753 (“Common sense will tell you a number of things about prison life.”). See majority at 865. Ironically, the majority overlooks the conceded fact that juries embody “the commonsense judgment of the community.” Taylor v. Louisiana, 419 U.S. 522, 530, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975).
¶309 The majority also overstates the surprise or significance of arguments about prison life to this jury’s deliberations. See majority at 866 (“The characterization of prison life is central to the question of which sentence is appropriate . . . .”). Characterizations of life in prison are matters of common knowledge, as defense counsel conceded in his argument before the jury. MRP at 7753.
¶310 The majority posits that images of prison life bias the jury. I disagree. Here, during closing argument, the prosecutor described prison life as another form of society. Id. at 7721-22. Defense counsel had ample opportunity to object to the prosecutor’s statement but failed to do so and instead chose to make a similar contrasting argument. The defense simply made a tactical decision that similar arguments would help his client.
¶311 This court recently found absence of an objection by defense counsel “ 'strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial.’ ” State v. McKenzie, 157 Wn.2d 44, 53 n.2, 134 P.3d 221 (2006) (emphasis omitted) (quoting State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990)). In analyzing a claim of prosecutorial misconduct, this court concluded the deputy prosecutor went too far in references to “McKenzie’s theft of C.T.’s innocence.” Id. at 61. Nonetheless, we held that these comments made in closing arguments in another rape case, “which prompted no objection from defense counsel, did not rise to the level of misconduct warranting a new trial.” Id. This court concluded that, with objection, “[a]ny prejudicial effect could have been mitigated by a timely instruction to the jury.” Id.
*901¶312 The question in this case does not significantly differ from the issue in McKenzie. That case should control. See also Loeffelholz v. Citizens for Leaders with Ethics & Accountability Now, 119 Wn. App. 665, 709-10, 82 P.3d 1199 (comments by prosecutor during closing argument not objected to were not preserved for appeal), review denied, 152 Wn.2d 1023 (2004).
¶313 Appellate courts will not sanction a party’s failure to object at trial to identify error which the trial court might correct. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). Failure to object deprives the trial court of this opportunity to prevent or cure the error. Such decisions at trial are often tactical — the defense chooses to argue the same issue. Gregory’s counsel did so here.
¶314 The jury was instructed by the trial court to “[d]is-regard any remark, statement or argument that is not supported by the evidence.” MCP at 2975 (Ct.’s Instruction to the Jury (Penalty Phase), Instruction 1, at 2). Juries are presumed to have followed the trial court’s instructions, absent evidence proving the contrary. State v. Davenport, 100 Wn.2d 757, 763, 675 P.2d 1213 (1984); State v. Cerny, 78 Wn.2d 845, 850, 480 P.2d 199 (1971), vacated on other grounds, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972). The constitutional role of the jury requires court respect for the jury and its deliberations. See Wash. Const. art. I, §§ 21, 22.
¶315 Defense counsel’s rebuttal argument may also be seen as a waiver of the earlier motion in limine. Surely the defense’s failure to object to the prosecutor’s remarks amounted to a waiver where defense went forward — at length — to argue the same issue.
¶316 Here, the prosecutor’s remarks — and those of defense counsel — were neither flagrant nor ill intentioned. Gregory failed to demonstrate that the remarks prejudiced him. Even in the absence of the counsel’s remarks, the jurors were free to consider the living conditions of prisoners serving life sentences without parole versus prisoners serving time on death row before facing execution.
*902¶317 The majority acknowledges that if it is to find reversible error on this matter, it must “conclude that a curative instruction would not have been effective, a very difficult standard to meet.” Majority at 866. The majority admits that this matter truly presents a “close question.” Id. at 867. But such a “close question” does not satisfy this “very difficult standard to meet.” The majority can only find a reversible error here by disregarding the requisite standard (and our recent case).
¶318 The remarks at issue neither deprived Gregory of due process of law nor denied him a fair sentence. The conduct of the prosecutor did not amount to reversible error. Here, too, the majority is in error.
Import of the Victims’ Rights Amendment to Our Constitution
¶319 Whereas many of our sentencing and death penalty procedures are spelled out in statute, the victims of crimes-rights amendment is constitutional. The mandate of article I, section 35 of the Washington Constitution — the victims of crimes-rights amendment — must be taken into account when courts conduct and review sentencing hearings. The guaranty to victims of a “meaningful role in the criminal justice system” is hollow if the due deliberations of a jury over matters of commonsense judgment can be set aside in the absence of clear violations of law. Wash. Const, art. I, § 35. The provision for victims’ representatives to speak at sentencing hearings is rendered nugatory where a jury’s sentencing decision is reversed because a reviewing court assumes a jury did not carry out its duty. The deliberations of properly instructed juries should not be set aside on such “close questions” by judges not present at the proceedings. The mandate of the victims of crimes-rights amendment strongly cuts against the majority’s conclusion.
¶320 Here, victim impact testimony was provided by Geneiene H.’s mother. It is fitting to recall her answer when *903the prosecution asked about the things Geneiene H. loved the most:
Her family . . . her friends, her cats. She loved having her place where she could . . . have flowers. . . . [S]he loved doing her artwork, her needlework. She loved movies. She loved life, loved Christmas. God, how she loved Christmas.
MRP at 7247.
Conclusion
¶321 I would uphold Gregory’s death sentence and his earlier conviction of a separate rape. Gregory’s convictions and the death sentence resulted from consideration of extensive evidence and argument, extended deliberation, and proper decision-making by the respective juries. Both victims and the defendant received appropriate attention and protection of their rights by trial judges and jurors who saw the perpetrator, heard from witnesses, viewed the evidence, and listened to the impacted families — on both sides. Far removed in place and time, this court overturns the jury without legal justification. Our constitutional guaranty of jury trial requires we respect a jury’s decision against — as well as favoring — defendants. That assures the jury system advances justice.
¶322 On remand, a new jury may be impaneled for a new trial for the rape of R.S. The death penalty decision for the murder of Geneiene H. should have been stayed pending the decision of the prosecutor to retry Gregory for that R.S. rape.
¶323 In spite of the lamentable decision of the majority, redress may remain available to the State and to the victims. Our statutes and precedent also allow the reconvening of the penalty jury to consider again whether mitigating circumstances outweigh a death penalty. Justice may yet be served.
¶324 I dissent.