¶47 (dissenting) — We are here challenged in two different settings to ensure the impartiality of a criminal jury. In the first trial, the jury was told by the lawyers and judge the death penalty was not sought, heightening the risk of conviction by a jury which might have been more cautious were the death penalty a prospect. In the second trial, the State removed the only African-American from the jury, creating a jury which entirely excluded anyone of the same race as the defendants.
Sanders, J.*497 I. Hicks and Babbs were prejudiced by ineffective counsel
¶48 The majority correctly holds Phillip Hicks’s and Rashad Babbs’s counsel “was deficient insofar as counsel informed the jury that the case was noncapital and failed to object when the trial court and prosecution made similar reference”;12 however, it finesses the error by asserting it was not prejudicial. Notwithstanding, the record demonstrates the defendants were indeed prejudiced by their attorneys’ error, the proper remedy being reversal and remand for new trial.
¶49 The majority asserts the defendants did not establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Cienfuegos, 144 Wn.2d 222, 229, 25 P.3d 1011 (2001); see majority at 486-87. However, that is not the test. Rather, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Cienfuegos, 144 Wn.2d at 229 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
¶50 One cannot be confident the outcome of the trial would have been the same had the jury not been told the death penalty was not an option. As we held in Townsend, advising the jury the death penalty is off the table “increase[s] the likelihood of a juror convicting the petitioner.” State v. Townsend, 142 Wn.2d 838, 847, 15 P.3d 145 (2001). The majority recognizes this danger, as well as the danger jurors may be less attentive, less deliberative, and less inclined to hold out during deliberations,13 but does not provide a remedy.
¶51 Rather the majority speculates defendants were not prejudiced by counsel’s mistake because the jury was active in its deliberation, there was an abundance of evidence to *498support the conviction, and the defendants were not convicted of the most serious charges. Majority at 488-89. But none of this demonstrates the jury was not less attentive or less inclined to hold out during deliberations than they would have been if they were not informed of the noncapital nature of the case. Assuming arguendo the jury was active in its deliberation, it does not prove the deliberation might not have been more active absent counsel’s error. That the defendants were convicted only of a less serious charge likewise does not demonstrate the jury might not have acquitted the defendants of all charges but for counsel’s error.
¶52 In addition, the majority impermissibly invades the province of the jury when it rests on the alleged abundance of evidence against the defendants.14 The majority asserts, “[a] guilty verdict was likely even if the jury had not been informed that the case was noncapital”;15 yet elsewhere we have recognized, “it is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors.” State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946). Thus judicial confidence in the verdict is undermined.
II. The State improperly removed the only African-American juror from the jury
¶53 In addition to refusing to supply a remedy for the defendants’ ineffective assistance of counsel, the majority errs when it upholds the trial court’s denial of the defendants’ Batson16 challenge. The reasons argued by the prosecution for exercising its peremptory challenge must be examined carefully to determine if they are real or pretextual.
*499¶54 Batson holds equal protection is denied when the State excludes members of the defendant’s race from the venire on the basis of their race. 476 U.S. 79. There the Court developed a three-part test to determine whether the exclusion of a juror is impermissible. First, the defendant must make a prima facie case of purposeful discrimination by the State. Id. at 93-94. Once that showing is made, the burden shifts to the State to provide valid, nondiscriminatory reasons for challenging the juror. Id. at 97. The majority properly holds the first two parts of the Batson test were satisfied.
¶55 The final step Batson requires is the trial court weigh the evidence of discrimination against the reasons presented for dismissing the juror to “determine whether the defendant has carried his burden of proving purposeful discrimination.” Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). “ ‘An invidious discriminatory purpose may often he inferred from the totality of the relevant facts. . . .’” Id. at 363 (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976)). “A prosecutor’s motives may be revealed as pretextual where a given explanation is equally applicable to a juror of a different race who was not stricken by the exercise of a peremptory challenge.” McClain v. Prunty, 217 F.3d 1209, 1220 (9th Cir. 2000); see also Snyder v. Louisiana, 552 U.S._, 128 S. Ct. 1203, 1211, 170 L. Ed. 2d 175 (2008) (“The implausibility of this explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’.”). Where a proffered reason is shown to be pretextual, it “gives rise to an inference of discriminatory intent.” Snyder, 128 S. Ct. at 1212.
¶56 Here the prosecution provided two separate rationales for exercising a peremptory challenge to remove juror 9. First, the State asserted the juror was an educator and a social worker, which the State believed made her a *500“nonstate type juror.”17 However, juror 2 worked for a public assistance agency and in child care licensing. The State did not peremptorily challenge that juror, even though as a social worker, she was equally a “nonstate type juror” as juror 9. Since the explanation was equally applicable to both jurors, and only the African-American juror was excluded, this reason is pretextual. If a pretext, the court may not consider the claimed racially neutral reason as a legitimate reason to exclude her. See McClain, 217 F.3d at 1222.
f57 The State’s second proffered reason is juror 9’s relationship with someone who had served time, which apparently made her a “nonstate type juror” as well.18 In addition to juror 9, jurors 14, 22, 55, and 37 all had relationships with others who had been incarcerated. However, unlike juror 9, the State did not challenge those jurors. The reason given by the State applied equally to all five jurors, but only the African-American juror was excused. This “gives rise to an inference of discriminatory intent” in exercising a peremptory challenge to remove juror 9. Snyder, 128 S. Ct. at 1212.
III. Conclusion
|58 I would reverse the defendants’ convictions in the first trial because the defendants’ counsel was ineffective, and confidence in the verdict but for the ineffectiveness is undermined. In the second trial, the State failed to present any nonpretextual reason for dismissing juror 9 and *501hence violated Batson. As such, I would reverse all convictions and remand for a new trial.
¶59 I dissent.
Alexander, C. J., and Madsen, J., concur with Sanders, J.
Majority at 488.
Id. at 487 (quoting Townsend, 142 Wn.2d at 847).
Although the majority claims there was overwhelming evidence against the defendants, the record presents a somewhat mixed story. Jonathan Webber was unable to identify Babbs as a shooter, and no one placed Babbs at the scene of the crime.
Id. at 488.
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
I find it difficult to accept the logic that one who works for the government is less likely to favor it, a novel theory.
Amicus American Civil Liberties Union of Washington argues this reason, even if not pretextual, is not race-neutral based on the disparity of incarceration and arrest rates by race. My analysis does not require significant exploration of this argument.