specially concurring:
I concur fully in Judge Gee’s impeccable and unexceptionable analysis of the Wither-spoon problem and his disposition of this case. However, I would like to offer a few thoughts in support, of his conclusion regarding the “harmless error” issue.
The State of Texas virtually concedes that at least one of the veniremen in this capital case was erroneously excluded from the jury panel in violation of the guidelines set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). However, the State argues that since the prosecutor stood ready to use available peremptory challenges to exclude this same juror, the error was harmless beyond a reasonable doubt.
I concur with Judge Gee’s finding that the State’s argument is foreclosed by the *58Supreme Court’s opinion in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) and our court’s decision in Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979) adhered to en banc, 626 F.2d 396 (5th Cir. 1980). I agree that “the exclusion of even one venireman on grounds broader than Witherspoon precludes the imposition of the death penalty.” ante, at 57.
As I would expect, Judge Gee has dutifully adhered to the rule set forth in Davis v. Georgia, supra, and Burns v. Estelle, supra. However, I note that he has done so with an expression of regret. I, on the other hand, have no such reservations, for I believe that even if we were not bound by principles of stare decisis, there would be sound reasons for rejecting the State’s “harmless error” argument.
Texas contends that the erroneous exclusion of a particular venireman “for cause” was harmless beyond a reasonable doubt because the State stood ready to use an available peremptory challenge. In essence, the State argues that even if the trial court had acted properly and refused to excuse the venireman for cause, the prosecutor would have used a peremptory challenge to keep that prospective juror off the panel. Thus, the State maintains that the trial court’s error could not have had any substantive effect since the venireman in question would have been excluded from the panel even if he had not been erroneously excused by the trial court.
In their “harmless error” argument, the State has assumed that the crucial question is whether a particular venireman was excluded from the jury panel as the result of the trial court’s erroneous ruling. However, I believe that the State’s syllogism is logically flawed. The proper focus of our inquiry is whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error. While it may be true that the exclusion of a particular venireman was not affected by the trial court’s erroneous ruling, it does not necessarily follow that the composition of the entire jury panel was unaffected by the error.
In Texas capital cases, veniremen are examined seriatum by the defense and prosecution. “[Prospective jurors . . . are examined individually and must be challenged and passed upon separately.” Pierson v. State, 614 S.W.2d 102, 107 (1981). Thus, as a prospective juror comes before the court, the prosecutor must then and there decide whether she will accept the juror, challenge for cause, or exhaust one of her limited number of peremptories. Clearly, the prosecutor’s strategic calculus is affected by the number of peremptory challenges left to her and by the number of jury panelists still awaiting selection. As the prosecutor depletes her limited number of peremptory challenges, she may be willing to accept certain jurors she might have otherwise rejected given a larger reserve of perempto-ries.
The import of this observation should be clear. Texas claims that it would have used three of its peremptory challenges to exclude the three jurors found to have been improperly excused for cause. However, even if we assume that the prosecutor in this case would have used those three additional peremptory challenges,1 how can we know beyond a reasonable doubt that the selection of the remainder of the jury panel would have been unaffected? If the trial court had ruled properly and the prosecution had been forced to use these three additional peremptory challenges, it is entirely possible that the State would have chosen to acquiesce in the impaneling of other prospective jurors it actually challenged given the luxury of a pocketful of “peremptories.”2
*59Thus, when a trial court erroneously excludes veniremen “for cause,” it allows the prosecutor to save peremptory challenges it would otherwise have had to use to exclude those prospective jurors. Armed with more peremptory challenges than she would have had if the trial court had ruled correctly, a prosecutor may feel that she is in a position to exclude jurors she might otherwise have accepted. We can thus imagine a situation in which the composition of the jury panel as a whole could indeed have been affected by the erroneous ruling of the trial court. Therefore, we cannot say that such error can be characterized as harmless beyond a reasonable doubt.
I would also note that acceptance of the State’s “harmless error” argument would be tantamount to insulating all jury selection error from any meaningful appellate review. Texas has asked us to adopt a rule which would in effect make all jury selection error “harmless” so long as the prosecutor can demonstrate that she was prepared to use an available peremptory challenge. However, if we were to accept this argument, we would be saying that a prosecutor could effectively insulate all jury selection error from any habeas or appellate review merely by asserting that she was ready to use an available peremptory challenge. One can readily predict what might happen if we were to adopt this position: prosecutors could routinely follow their challenges for cause with a note for the record asserting that the State would stand ready to use a peremptory in the event its “for cause” challenge was unsuccessful. The use of this strategem would result in our being unable to review any jury selection error, for all such error would be “harmless.” Habeas and appellate courts would be left with no means to enforce the jury selection guidelines set down by the Supreme Court and Witherspoon would surely wither.
Having offered these thoughts in support of Judge Gee’s analysis of the Witherspoon problem, I would also add one final note. “I join the Court’s opinion without ... departing from my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” Eddings v. Oklahoma, - U.S. -, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982) (Brennan, J., concurring).
. I agree with Judge Gee that “. . . without in the least calling into question the sincerity of the former prosecutor’s affidavit assertions, we cannot countenance what amounts to an attempt to exercise — retroactively and by affidavit — peremptory challenges reserved at the time.” ante, at 57.
. A simple example will suffice to illustrate the point: Imagine that a prosecutor holds four remaining peremptory challenges. She can easily choose to use one of them to excuse a given prospective juror; however, if the prosecutor has already been forced to exhaust three of those “peremptories,” she might think it *59prudent to acquiesce in the impaneling of a particular venireman, holding her remaining peremptory in reserve against the possibility of being confronted with an even more objectionable candidate.