with whom DYER, Circuit Judge, joins, specially concurring:
Judge Tjoflat accurately sets forth the opinions of the Supreme Court of the United States dealing with state statutes allowing the death penalty and appropriate consideration of mitigating circumstances. Lockett and Bell, along with our opinion in Chenault, require instructions which do not preclude consideration of mitigating factors and which allow objective consideration of the particularized circumstances of the individual offense and the individual offender. In my opinion, however, this does not require the trial judge to specifically list each and every conceivable mitigating circumstance that counsel may suggest either during trial or on appeal. But, we are bound by Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981), unless and until it is altered by the en banc court. As Judge Coleman points out in his dissent in Washington, the trial judge is damned if he does and damned if he doesn’t. In this case, as in Washington, defense counsel was allowed to argue anything and everything he considered important or mitigating. In both instances, the juries were told to consider all of the evidence — all of the circumstances — aggravating and mitigating. This should be sufficient.
In addition, this issue, along with others, has twice been presented to the Supreme Court and rejected. It is no wonder our citizens are losing faith in the judicial process. Capital cases are unique. The responsibilities of the courts and the attorneys are awesome. Fairness to both the defendants and society demands that all courts set forth the rules and requirements in clear simple terms. In my opinion, Mr. Spivey received a fair trial and has been found guilty of aggravated heinous crimes. If death penalty statutes are constitutional, it is our sworn duty to enforce them regardless of our personal feelings. As stated by Justice Rehnquist in his dissent in Wainwright v. Spenkelink, 442 U.S. 901 at 904, 99 S.Ct. 2421 at 2422, 60 L.Ed.2d 1075, “Constant and repeated frustration of the State’s lawful action in such a situation is contrary to the underlying assumptions of our federal system.”