dissenting.
Since I believe that the District Court held an evidentiary hearing on the issue of whether an Arkansas death-qualified jury which meets the minimal standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction, I dissent from Chief Judge Lay’s opinion. Furthermore, given the record on appeal, I would find as a matter of law that Grigsby had a fair trial on the issue of his guilt.
I.
The District Court opinion, Grigsby v. Mabry, 483 F.Supp. 1372, 1375 (E.D.Ark. *5301980), makes clear that an evidentiary hearing was held on May 16, 1979. At that time, both parties presented experts and research articles on the issue of the potential guilt-proneness of death-qualified juries. The District Court subsequently denied the petitioner’s contention that he was tried by an unrepresentative cross-section of the community. Id. at 1376-85. Grigsby does not raise this denial as an issue on appeal. The District Court did, however, find some merit in Grigsby’s attack on the impartiality of his Witherspoon death-qualified jury. Id. at 1388-89. The District Court eventually remanded the case to Grigsby’s trial court in Arkansas for a final determination of his challenge. On appeal, Grigsby has argued that the District Court or this court should make the determination of whether he was denied a fair trial. I believe that this court has jurisdiction to make this determination.
This court has jurisdiction to review any “final order” of a district judge in a habeas corpus proceeding. 28 U.S.C. § 2253 (1976). The mere fact that the District Court may have entered its order precipitately or after an incomplete hearing does not render the order non-final. Browder v. Director, Department of Corrections, 434 U.S. 257, 267, 98 S.Ct. 556, 562, 54 L.Ed.2d 521 (1978). Even if the District Court had failed to hold any evidentiary hearing whatever, its order would still be final for purposes of this court’s jurisdiction to review its merit. Id. at 266, 98 S.Ct. at 561.
While remand to the District Court would ordinarily be appropriate when the trial court fails to reach a decision on the merits, an exception is presented where the evidence is mainly documentary in nature. In such a case, “an appellate court has the right to interpret such evidence independently.” Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir. 1979). In addition, Grigsby has asked this court to make a determination on the merits based on the record. Given these circumstances, remand would serve no useful purpose. Accordingly, I address the merits of Grigsby’s petition.
II.
The issue presented is whether an Arkansas death-qualified jury which meets the minimal standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), results in an impartial jury on the issue of guilt. This issue is not the same as the one posed by the Supreme Court in Witherspoon itself. Id. at 517-18, 88 S.Ct. at 1774; ante at 526-527 & n.2. In Witherspoon, the State of Illinois excluded for cause all jurors that had “conscientious scruples against capital punishment, or that * * * opposed * * * the same.” Ill.Rev.Stat., c. 38, § 743 (1959); Witherspoon, supra, 391 U.S. at 512, 88 S.Ct. at 1772. Witherspoon did not “involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt.” Id. at 513, 88 S.Ct. at 1772 (footnote omitted). In the present case these are precisely the type of jurors whose exclusion Grigsby objects to. The Arkansas jury which tried Grigsby met the Witherspoon standards.
If Grigsby were to prevail in his petition, the State of Arkansas would be required to seat jurors whose moral beliefs on the death penalty prevented them from rendering an impartial decision in a capital case, and instead would be required to seat jurors who had announced in advance that they did not intend to follow the instructions of the court. In effect, one man on a jury who disagreed with Arkansas’ views concerning the death penalty would be allowed to impose his will upon the rest of the citizenry regardless of the guilt of the defendant. Since Arkansas requires a unanimous verdict in capital cases, see Ark.Stat. Ann. § 41-1302 (1977), the imposition of the death penalty would be turned into a lottery, with the defendant’s winning ticket to be found at voir dire. Given this possible future scenario, I believe the imposition of capital punishment in Arkansas could well become arbitrary and, therefore, unconstitutional. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 *531(1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
I find that the evidence produced at the hearing in the District Court failed to establish that Grigsby had been denied a fair trial. First, many of the studies cited by Grigsby on appeal deal with juries which violated Witherspoon. These studies, therefore, are irrelevant in Grigsby’s case.1 In technical terms, the random samples of jurors or potential jurors are biased and are no longer representative of juries which meet the Witherspoon criteria. In other words, even if these studies demonstrate that a defendant tried by a jury in violation of Witherspoon is one that is prejudiced in favor of conviction, it does not necessarily follow that Grigsby was not tried by an impartial jury. Second, social science empirical studies are often subject to various interpretations. One need only refer to the controversey surrounding Professor Isaac Ehrlich’s rather straightforward study concerning the deterrent effect of the death penalty to realize the difficulty in “proving” a hypothesis one way or another. See
Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life or Death, 65 Am.Econ.Rev. 397 (1975); see, e. g., Editors’ Introduction, Statistical Evidence on the Deterrent Effect of Capital Punishment, 85 Yale L.J. 164-69 (1975). See also Gregg v. Georgia, 428 U.S. 153, 184-86 (1976).
Grigsby here bears the burden of proof on showing a denial of his right to a fair trial. See Bumper v. North Carolina, 391 U.S. 543, 545, 88 S.Ct. 1788, 1789, 20 L.Ed.2d 797 (1968). Given the evidence in the record on this appeal and Grigsby’s undoubted guilt, he has been unable to meet that burden. At this time the data remain “too tentative to establish that * * * [Wither-spoon death-qualified jurors] * * * tend to favor the prosecution in the determination of guilt.” Witherspoon, supra, 391 U.S. 517, 88 S.Ct. at 1774 (footnote omitted). Regardless of their beliefs on the propriety and efficacy of the death penalty, the jurors must first determine guilt or innocence. To contend that a juror holding positive views *532on the validity of the death penalty would vote to find an innocent defendant guilty is absurd. All rational persons who do not have an immediate personal interest in the controversy at issue have a basic instinct and desire to accord justice to other persons, which desire or instinct is as strong to acquit the innocent as it is to call the guilty to task. What Grigsby wants is not an impartial jury but a jury biased in favor of acquitting the guilty for whatever reasons might be advanced.
Finally, the original trial did not present a close or difficult issue, and further court proceedings on the issue here presented appears to me to be an additional burden that our court system should not have to bear. I would reverse and remand with instructions that the petition be dismissed.
. As noted by Professor Jurow:
(I) More specific inquiry is needed to determine in just what way and to what degree a person is or is not in favor of capital punishment. Witherspoon set down very precise guidelines for questioning a juror to determine his attitude toward capital punishment. The Court made it very clear that “general objections” to the death' penalty or expressions of “conscientious or religious scruples” were insufficient to exclude a juror. The studies described above all phrased the question in an abstract and, in light of Wither-spoon, a legally irrelevant manner. In addition, none of the studies asked subjects clearly to distinguish between their personal views about the death penalty and how they would consider the death penalty when serving as a juror. As the Court noted in Wither-spoon, a juror may be able to subordinate his personal views to what he perceives “to be his duty to abide by his oath as a juror and to obey the law of the State.”
Jurow, New Data on the Effect of a “Death Qualified" Jury on the Guilt Determination Process, 84 Harv.L.Rev. 567, 575 (1971) (footnote omitted). See also id. at 591, 598.
In fact, Jurow’s. study stands out in its attempt to measure how a potential juror would consider the death penalty if he were serving on a jury. See id. at 577, 590-91. Jurow, however, only attempted to measure the guilt-proneness of those jurors who “would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial * * Witherspoon, supra, 391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21; see Jurow, supra, 84 Harv.L.Rev. at 599. Jurow did not attempt to measure the guilt-proneness of those jurors whose “attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” Witherspoon, supra, 391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21. With regard to the former, Jurow, using a CPAQ(B) (capital punishment attitude questionnaire), concluded “that even the decision in Witherspoon allows a jury that may be biased in the guilt determining process.” Jurow, supra, 84 Harv.L.Rev. at 588. This conclusion was based on statistical analysis significant at the .01 level. See id. at 592, Table VII.
To reiterate, Jurow failed to measure the guilt-proneness of jurors whose attitude towards the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. This type of juror is excludable under Witherspoon and apparently was of the same type as was excluded in Grigsby’s trial. The evidence on the record in Grigsby’s case at this time, therefore, fails to demonstrate that Grigsby was denied a fair trial.