(dissenting) — I disagree with the majority’s determination that Roy Alires received effective assistance of counsel during jury selection. The majority reasons the record evidenced only a general admission of prejudice by potential jurors, cured by an apparent lack of further response by the four jurors who were later impaneled. The majority believes that no prejudice occurred because the one juror who spoke out was not seated on the panel.
When these four jurors were questioned about whether they could decide the case on the evidence and not their prejudices, their answers were nebulous. The majority admits the record is not clear regarding the responses of these jurors. However, what is clear from the record is that Mr. Alires’s counsel did not individually question these four jurors. Instead, Mr. Alires’s counsel asked the follow*940ing closed-ended question: “Uh-any of you that raised your hands, [to the question of whether they believed Hispanics were more likely to commit a crime in the Valley than other people] do you feel that you’d be unable to listen to the evidence in this case and make your decision based solely on the evidence rather than any preconceived idea that you might have about Hispanics?” When there was apparently no response, Mr. Alires’s counsel proceeded with voir dire and did not challenge any of these jurors.
Mr. Alires is entitled to a trial before an unbiased jury. State v. Witherspoon, 82 Wn. App. 634, 637, 919 P.2d 99 (1996), review denied, 130 Wn.2d 1022 (1997). Under the facts of this case, four members of the jury admitted some type of bias against a specific ethnic heritage—Hispanics. Mr. Alires is Hispanic yet his attorney did not further investigate the possible biased attitude of the four jurors.
The majority takes a giant leap of faith by stating: “[I]t is reasonable to infer these jurors did not raise their hands, thus indicating they would be impartial and fair.” Majority, at 938. The wording of the question itself could have been confusing to these four. Perhaps the jurors’ silence was because they were replaying the question in their minds in order to give an honest response. The record does not tell us how long Mr. Alires’s counsel waited for a response or whether the jurors looked confused or whether they were even paying attention to the question asked. There are so many unanswered questions that neither he nor we can say for certain that Mr. Alires was tried before an unbiased panel of jurors.
I agree with the majority that the test for ineffective assistance of counsel was set forth in State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Mr. Alires must first show his counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Second, Mr. Alires must show his counsel’s errors during jury selection were so serious as to deprive him of a fair trial.
*941I believe Mr. Alires has met this burden. The fact that jurors exhibiting bias were not immediately challenged for cause may have been a legitimate trial strategy but that all four were eventually impaneled is the deficient performance by counsel warned of in Thomas. Having four admittedly prejudiced members on a jury of one’s peers most certainly deprived Mr. Alires of a trial whose result was reliable. Thomas, 109 Wn.2d at 225-26; Witherspoon, 82 Wn. App. at 637. Accordingly, I would reverse and remand.