concurring in part and dissenting in part:
I concur in the court’s disposition of petitioner’s claim under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). I dissent, however, from the holding that Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), requires a new trial in the penalty phase of the case.
*127Witherspoon v. Illinois authorizes a state trial judge in a capital case to excuse for cause any prospective juror who declares that he would “automatically vote against the imposition of capital punishment,” id. at 522, n. 21, 88 S.Ct. at 1777, n. 21; a judge may also excuse one whose views regarding capital punishment “would prevent or substantially impair the performance of his duties.... ” Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). In deciding whether a venireman should be excused for cause, the trial judge focuses on the voir dire examination of the venireman concerning his views on the death penalty and the extent to which they might influence his verdict. The judge also considers the demeanor of the venireman exhibited during that examination. Sometimes the judge’s decision on a challenge for cause is a close call, especially when the venireman’s statements about capital punishment and his ability to follow the court’s final instructions on the law seem irreconcilable. In such a case, the demeanor of the venireman may be the best indication of which response is the true one. In this case, the record convinces me that the trial judge reached his decisions by weighing the venireman’s testimony and considering his demeanor; he found that the venireman’s statement that he could vote for the death penalty, if warranted, was not worthy of credence.
The panel, which the en banc court now upholds, set aside this finding in each instance because the trial judge based it on evidence the panel considered inadmissible on the Witherspoon issue — the venireman’s statement that he could not vote for the death penalty if he were required to sign a verdict to that effect as foreman of the jury. In the panel’s view, “[wjhether a venireman could sign, in good conscience, a verdict that would result in a defendant’s execution is immaterial to jury service under Witherspoon.” Alderman v. Austin, 663 F.2d 558, 563 (5th Cir.1981). The panel accordingly disregarded such evidence and considered only the venireman’s statement that he would be willing to vote for the death penalty in a proper case. Standing alone, such a statement obviously precluded an excuse for cause.
What concerns me about the court’s approach to its Witherspoon decision in this case is that it seriously curtails the prosecution’s right to test the accuracy of a prospective juror’s statement that he is willing to impose capital punishment and the trial judge’s ability to decide the truth about his views on the subject. To me, it was entirely appropriate for the prosecutor to ask the venireman in this case whether his resolve to vote for the death penalty, if warranted by the law and the evidence, would be strong enough to enable him to sign the verdict. In each instance, the venireman said that he could not, a good indication, perhaps, of the accuracy of his earlier statement of willingness and something the trial judge should have been able to take into account in ruling on the prosecutor’s challenge for cause. It would have been equally appropriate had the prosecutor asked the venireman whether, in a poll of the jury in open court following the return of the verdict, he could state that his verdict was that the defendant be put to death. A venireman who states, on voir dire, that he could not respond affirmatively to such a poll may well be disqualified, and I, for one, could not fault a trial judge for declaring him to be so.
The veniremen in this case were not asked whether they could state in open court, in response to a jury poll, that they had voted for the death penalty; thus, we can only guess at what their answers would have been. Nevertheless, the trial judge had sufficient impeaching evidence before him to disregard the veniremen’s statements indicating their willingness to vote for capital punishment and to grant the prosecutor’s challenges for cause. For this reason, I would deny the writ.