concurring:
I concur fully in the majority opinion. I write separately simply to state that in addition to the reasons stated by the majority for granting the writ that I gave weight to the unnecessary problems that might attend jury selection were the order to stand. If Harper exercised his right to a jury trial, the district court’s order would materially affect the nature of the voir dire and might well materially affect the composition of the jury. Prior to the commencement of the jury selection process, the district judge would be required to resolve complex and difficult constitutional questions that should await resolution until a case necessitating their resolution arises. Specifically, the court would first have to determine whether in a trial in which the judge, rather than a jury, imposes the sentence, persons who would be unwilling, as a matter of conscience, to vote to impose the death penalty could be excluded for cause. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). If a prospective juror were to indicate such a conviction, the judge would then have to resolve the question whether a verdict returned by such a “death qualified” jury can withstand constitutional scrutiny and, if so, under what circumstances.1
. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Supreme Court rejected a challenge to a verdict returned by a jury from which anyone who “ ‘might hesitate to return a verdict inflicting [death]’ ” had *1227been excluded. 391 U.S. at 513 n. 2, 88 S.Ct. at 1772 n. 2 (emphasis deleted). It said that
[t]he data adduced by the petitioner ... are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.
391 U.S. at 517-18, 88 S.Ct. at 1774-75 (footnote omitted). Since Witherspoon several courts have, on the basis of fuller records including numerous post-Witherspoon studies, concluded that at least certain types of "death-qualified” juries are more prone to convict. See Keeten v. Garrison, 578 F.Supp. 1164 (W.D.N.C.1984); Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983); Hovey v. Superior Court, 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301 (1980).