(concurring specially):
Following a somewhat different route, I concur in the result reached by the court and in most of its opinion. The extent of my disagreement is briefly indicated below.
I find it unnecessary to enter into the discussion between my brethren Winter and Craven as to whether the State has a sufficient interest in the preservation of the death sentence as a possible punishment to permit it to submit the penalty issue to a jury composed only of persons having no scruples against capital punishment. Without addressing this interesting but secondary question, I conclude that there has been a violation of the Fourteenth Amendment in this case simply because the issue of guilt or innocence was submitted to a jury under the trial court’s rulings which systematically excluded.for cause every juror entertaining any scruples about capital punishment, and this without even inquiring whether these beliefs would preclude a fair consideration of the guilt issue. I agree that the conviction must be set aside because of the palpably unfair double standard of inquiry which excluded all with any degree of principle against the death penalty while seating one who admitted a bias against the defendant and another who felt that he would be under a mandate to impose the death penalty if the defendant should be convicted. This is the most obvious fault of the trial. But in addition, the procedure was constitutionally defective in the manner in which the list of prospective jurors was systematically combed with the result that the issue of innocence or guilt was tried before a “death qualified” jury.
However, I have conceptual difficulty with the theoretical footing chosen by *314the major opinion for invalidating the procedure which resulted in a “death qualified” jury for the determination of guilt as well as punishment. My concern is with the court’s refusal to consider the due process argument while placing exclusive reliance on the equal protection clause. I agree unreservedly with Judge Craven that primarily it is due process which forbids the practice employed here.
The underlying idea in all of the jury selection cases relied upon in the major opinion is that the fairness of the trial was impaired by the deliberate empaneling of a jury not truly representative of a cross-section of the community. To my mind, this is essentially a due process concept expressing the Constitution’s interdiction of invidious discrimination in the method of jury selection. See Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84 (1940). The inherent objection to the exclusion of prospective jurors on account of race, sex, religion, philosophic belief or economic condition is that it opens the way to a fact finder’s partiality, bias and unfairness, which are often difficult to demonstrate in a particular case. These exclusions go to “the very integrity of the fact-finding process” 1 which depends on the presence of an impartial jury truly representative of a cross-section of the community. If this basic condition of representativeness is violated, due process is denied; and such an exclusion has been held reversible error without a showing of prejudice in the particular case. See Labat v. Bennett, 365 F.2d 698, 723 (5th Cir. 1966). If a venire list has been so manipulated as to become unrepresentative, it cannot be defended as measuring up to minimum constitutional standards of due process. After all, due process is simply the legal expression denoting fairness, and we are agreed that making the selection from an unrepresentative list is not fair.
It is difficult to escape the conclusion that the automatic disqualification of from 30% to 45% of the available jurors in capital cases destroys the representative character of the jury. That the submission of the question of guilt to the special group which remains after the siphoning process has a tendency to favor the prosecution has been affirmed by legal scholars and psychologists.2 3 Even though the major opinion refuses to accept these studies, it recognizes that the excluded group, if allowed to serve, “may well have a ‘subtle interplay of influence’ upon the others.” This is enough, for the due process claim stands upon the unrepresentative character of the list, and it is unnecessary to speculate as to the effect this particular group might have if permitted to participate. Ballard v. United States, 329 U.S. 187, 67 S.Ct. 1613 (1946).
*315Nevertheless, the major opinion prefers to rely solely on the equal protection clause of the Fourteenth Amendment. It is true, as the opinion notes, that decisions pertaining to the systematic exclusion of jurors are usually couched in equal protection terms. This is because in each of the cases resting on this ground the practice complained of worked to discriminate directly against a particular class to which defendant belonged or with which he was affiliated. An example is the Smith case, supra, where a Negro defendant was tried before a jury from which members of his race were systematically excluded while the State tried white defendants without excluding from the jury members of their race. Thus individuals similarly situated were treated discriminatorily by the State, and the equal protection clause was appropriately invoked, without any negative implication as to the applicability of the due process clause. In Eubanks v. State of Louisiana, 356 U.S. 584, 585, 78 S.Ct. 970, 972, 2 L.Ed.2d 991 (1961), the Supreme Court synthesized the equal protection jury exclusion cases in these measured words: “In an unbroken line of cases stretching back almost 80 years this Court has held that a criminal defendant is denied the equal protection of the laws guaranteed by the Fourteenth Amendment if he is indicted by a grand jury or tried by a petit jury from which members of Ms race have been excluded because of their race.” (Emphasis added.)
In the instant case, the record fails to establish that the defendant, accused of murder, is a member of the class — • persons with scruples against capital punishment — which the text of the major opinion clearly holds was accorded discriminatory treatment by the State. To say that the defendant has scruples against capital punishment as to himself fails to distinguish him from any of the jurors who actually tried him or from mankind in general. Because of their beliefs, otherwise qualified members of the excluded class, unlike individuals from other segments of society were denied the opportunity to adjudicate the guilt or innocence of defendants in capital cases. This is not to say, however, that the defendant has no standing to complain,3 for denial of equal protection to the excluded class operates to deny him due process by forcing him to trial by a jury chosen from an unrepresentative cross-section of the community. It is only from this perspective that the case may be viewed as one involving a denial of equal protection. The denial of equal treatment to this identifiable group was an integral part of the judicial proceedings which culminated in defendant’s conviction. By so demeaning the criminal process, one might contend, the State has violated the defendant’s right to due process, “regardless of whom the unconstitutional state conduct may have affected in the first instance.” The Defendant’s Challenge To A Racial Criterion In Jury Selection: A Study in Standing, Due Process and Equal Protection, 74 Yale L.J. 919, 940, & n. 106, pp. 939-40 (1965). In this limited sense, equal protection and due process may be said to coalesce in this case. But again, the ultimate ground for reversing the conviction would be due process.
If the class excluded be persons with scruples against capital punishment, equal protection alone cannot provide an adequate ground for decision. In every one of the decided cases which grants standing to a person not within the excluded class, the courts speak either not at all of equal protection, or of equal protection coupled with due process; none relies exclusively on equal protection. In Allen v. State, supra, a case involving a white civil rights worker tried before a jury from which Negroes were systematically excluded, the Georgia court unequivocally stated: “When a *316State law provides for indictment and trial by a jury, due process of law, in our opinion, includes indictment and trial by juries selected in accordance with the established law, from a list of citizens representing a cross-section of the community.” (Emphasis added.)
In a footnote, in apparent departure from the theory of the text, the major opinion suggests that the class involved in this case is capital criminal defendants. The view seems to be that persons charged with capital offenses are treated inequitably compared to those accused of non-capital offenses who are tried before jurors unquestioned about their opinions of punishment. While this suggestion is decidedly unpersuasive, it in no way militates against the use of the due process clause in this case. Due process and equal protection are not mutually exclusive or conflicting to any extent. I read due process as being the broader guarantee of fundamental fairness. For this reason, I cannot envision a mode of jury selection involving an infraction of equal protection that might possibly satisfy the demand of due process.
In addition to due process, there is yet another constitutional basis which supports the court’s conclusion. In my view, not only were both due process and equal protection rights under the Fourteenth Amendment infringed, but no less emphatically the defendant’s Sixth Amendment guarantee of trial by an impartial jury was violated. This guarantee applies to the states, Parker v. Gladding, 385 U.S. 363, 364, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). A jury is not an impartial one if it has been deliberately drawn from a restricted segment of the population that may reasonably be thought more “guilt oriented” than a random cross-section of the general community.
To this defendant, of course, it matters not at all which ground we rely upon in voiding his trial; the court, however, has a deeper and more enduring concern with relevant legal theory, and it should select the appropriate avenue to decision.
. Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
. The conclusion of these scholars is best summarized by Professor Walter E. Oberer in his article, “Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?”, 39 Tex.L.Rev. 545, 549 (1961) :
“The consequence [of excluding jurors with scruples about capital punishment] is that a jury qualified on the death penalty will necessarily have been culled of the most humane of its prospective members. Human sympathy is hardly subject to nice compartmentalization. Jurors hesitant to levy the death penalty would also seem more prone to resolve the many doubts as to guilt or innocence in the defendant’s favor than would jurors qualified on the ‘pound of flesh’ approach.”
See also Adorno, “The Authoritarian Personality” (1950) ; Goldberg, “Attitude Toward Capital Punishment and Behavior as A Juror In Simulated Capital Cases” (1965) (unpublished study reproduced in petitioner’s brief at App. 60 filed in the United States Supreme Court in Witherspoon v. State of Illinois, et al., 389 U.S. 1035, 88 S.Ct. 793, 19 L.Ed.2d 822 (1968)) ; Wilson, “Belief in Capital Punishment and Jury Performance” (1964) (unpublished study reproduced in petitioner’s brief at App. 66 filed in the United States Supreme Court in Witherspoon v. State of Illinois, et al., 389 U.S. 1035, 88 S.Ct. 793, 19 L.Ed.2d 822 (1968)).
. See Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946) ; Rabinowitz v. United States, 366 F.2d 34, 37 & n. 1 (5th Gir. 1966) ; Allen v. State, 110 Ga.App. 56, 137 S.E.2d 711, 714 (1964) ; State v. Madison, 240 Md. 265, 213 A.2d 880 (1965).