special concurrence:
I join Judge Randall’s opinion except with respect to the standard by which we ought to review the claimed Witherspoon errors. I also write separately to explain how we differ in our reading of the voir dire.
I
I am not persuaded that the dispassionate disinterest that we ought to bring to the case requires that we recast the facts in sterile abstraction. If the facts are unpleasant or horrible, they remain so whether or not we wish them away. Ultimately our rules, our justice is judged on the actual facts and not on our restatement of them. Those facts follow.
In early November 1974, petitioner arose in his church and sang a solo dedicated to his eight year-old son, Timothy, buried the previous day. It was soon learned that Timothy had been murdered by petitioner for the proceeds of recently purchased life insurance. As described by the Texas Court of Criminal Appeals:
A more calculated and cold-blooded crime than the one for which appellant was convicted can hardly be imagined. Appellant murdered his child in order to collect life insurance money. The record *390reflects months of premeditation and planning. As Halloween neared, he took out new and additional life insurance policies on both of his children, made his diligent and successful search for the poison which he was to use, set up plans to insure that he would take his children “trick or treating,” bought the children their costumes, and even began making plans to spend the money which he would collect upon the deaths of his children. Well before the carefully planned and executed murder, appellant began to consider buying a new house, paying off his debts, and even quitting his job.
Appellant, in order to execute his plan to murder his son and to collect the life insurance proceeds, and to escape detection in doing so, was willing to and attempted to commit murder four more times. When he intentionally distributed the four additional poisoned pixy styx to the other children, the likely and predictable result of his acts was to cause their deaths also. The lives which appellant was willing to sacrifice in order to carry out the murder of his son included those of the two children of his good friend Jimmy Bates, and another child who attended appellant’s church, and his own daughter, whose life was also heavily insured.
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The jury also had before it evidence of appellant’s attempt to implicate another for the poisoning death, by a positive identification of another man as the source of the candy, when the evidence showed that this could not have been true.
Further, the jury had before it evidence of appellant’s attitude toward his crime. There was testimony that he was “excited” by wide spread news coverage of his son’s death. There was also various testimony concerning the disparity between appellant’s public displays of grief over his son’s death and his behavior when the circumstances were more private. The jury also heard testimony that at approximately 9:00 a.m. on November 1, the morning after his son’s death the previous night, appellant called his life insurance agent to find out how to collect the proceeds of the policy on his son. At approximately 9:30 a.m. this same morning after his son’s death, he inquired at his bank about collecting on a policy there, also. Further, over the next several days, appellant openly discussed how he would use the proceeds of the life insurance; these plans included taking an extended vacation.
By his entire conduct, including the facts that appellant, in such a deliberate and calculated way, took the life of his own child for money and jeopardized the lives of four others, the jury could have concluded that appellant had a wanton and callous disregard for human life; the evidence is sufficient for the jury to have found that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society.
O’Bryan v. State, 591 S.W.2d at 464, 480-81 (Tex.Crim.App.1979) (en banc) (emphasis in original).
Petitioner was indicted November 11, 1974 for the offense of capital murder. After finding him guilty, a Houston, Texas jury, proceeding under Texas’ bifurcated decisions of guilt and punishment, answered yes to the questions put to them as required by Article 37.071(b), Vernon’s Ann. C.C.P. As required by those answers, petitioner was sentenced to death. The conviction was affirmed on direct appeal. O’Bryan v. State, 591 S.W.2d 464 (Tex.Crim.App.1979) (en banc). On June 2, 1980, the Supreme Court denied certiorari. O’Bryan v. Texas, 445 U.S. 998, 100 S.Ct. 2975, 64 L.Ed.2d 846 (1980). Petitioner has twice, before filing this petition, sought state habeas and, once before, federal habeas relief. His first trip through state habeas ended with relief denied on July 31,1980. In that same month, petitioner filed his first application for federal habeas. That petition was pending before the United States District Court for approximately one year when Texas re*391quested expedition. In August 1981, pretrial briefing schedules were set. The state requested an evidentiary hearing, but in November petitioner’s request to return to state court to exhaust additional claims was granted, over the objections of the state. On September 1, 1982, petitioner’s state writ application was denied a second time, and his execution was set for October 31, 1982. Thirty days before the scheduled execution, petitioner filed his second petition for federal habeas. On October 2,1982, the District Court held a hearing denying the writ, and refused an application for stay and certificate of probable cause to appeal. On October 27, 1982, a panel of this court, by divided vote, granted a stay, pending full appellate review. This decision then is at least the fourth time a court has decided that the contested juror exclusions were proper under Witherspoon.
II
While suggesting that precedent may not require it or is at least uncertain Judge Randall’s able opinion employs a de novo standard of review that accords no deference to the trial judge. The standard by which an appellate court reviews is too basic to be so neatly sidestepped nor on these facts can it be. No decision is a decision here because Judge Randall’s analysis is inevitably touched by the effort to disclaim any deference to the trial judge. The use of an evidentiary device of rehabilitation of a witness to fill a perceived Witherspoon hole in Wells’ voir dire testimony is illustrative. The supposition that such a hole exists (might have answered the death penalty questions despite opposition to the penalty) is fueled, at least in part, by the decision that no weight is to be accorded the trial judge. I am persuaded that we are not required to proceed as if there were no trial judge and that here we should not.
Witherspoon held that a state was constitutionally barred from excluding veniremen that expressed reservations about the death penalty, or had conscientious scruples against its imposition. At the same time, the Court made clear that a state retained the right to exclude veniremen
who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.
391 U.S. 522-23 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original).
There is nothing inherent in Witherspoon which explains failure to accord deference to the trial court by courts reviewing claimed Witherspoon error. That a trial court’s decision may result in a death sentence has not been sufficient to strip it of all such deference. Trial judges daily decide whether conspiracies have been established independent of declarations by co-conspirators, whether statements were voluntary, and whether warnings were given or rights understood. Many trial decisions have lethal potential, yet are reviewed by standards as deferential as “clearly erroneous.”
Despite its many applications during its fourteen-year life, there have been few efforts by appellate courts to confront the core appellate question of the deference due a trial court decision excluding veniremen over a Witherspoon objection. For example, in a recent review by the Eleventh Circuit of claimed Witherspoon error, three dissenting judges treated the subject in two opinions, but the majority never mentioned its standard of review. Alderman v. Austin, 695 F.2d 124 (11th Cir.1983) (en banc). The Eleventh Circuit now has the question before its en banc court. Darden v. Wainwright, 699 F.2d 1031 (11th Cir.), rehearing en banc granted, 699 F.2d 1043 (1983). This silence is especially puzzling in light of the Supreme Court’s explicit requirement of deference to decisions of trial courts in matters of jury selection. For example, pointing in part to the trial judge’s superior opportunity to observe veniremen, the Court has said that “the trial court has a serious duty to determine the question of *392actual bias, and a broad discretion in its rulings on challenges therefor.” Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734 (1950).1
Yet, in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Court prefaced its conclusion with the statement, “Based on our own examination of the record, we have concluded that § 12.31(b) was applied in this case to exclude prospective jurors on grounds impermissible with Witherspoon and related cases.” Id. at 49, 100 S.Ct. at 2528 (emphasis added). This seeming inconsistency is not compelled. That the Court itself examined the record is as consistent with deferential review as with review that ignores the existence of the trial judge. Adams turned on the legal question of whether the Texas courts could, consistent with Witherspoon, exclude veniremen who indisputably had opinions that would only affect their answers. It did not present a review of a trial judge’s conclusion that the sum of his observations of veniremen and their testimony was that they would automatically refuse to vote for the death penalty. The fact is the Supreme Court has shed little direct light on the standard of review of claimed Witherspoon error. The usual language of deference is conspicuous in its absence. Equally conspicuous, however, is the lack of any discussion at all of the appellate standard. In summary, review in Witherspoon cases is independent but precedent does not bar an attempt to develop an appellate standard for its exercise.
In the following I examine in functional terms the justifications for a deferential standard of review and inquire whether such justifications are apt in a death penalty case. There are three overlapping, but nonetheless distinct, fundamental judicial policies to which a deferential standard is responsive: first, the recognition of a trial court as an integral level of an operating justice system; second, as an expression of comity and federalism, the deference owed a state court by a federal court engaged in collateral review; and third, recognition of the superior opportunity of an observer of witnesses to comprehend their testimony.
That an appellate court not simply ignore that the case has been earlier decided expresses in part a recognition that the trial court was more than an entrance gate. When an appellate court starts afresh, a trial court’s function is reduced to that of collecting data and providing an opportunity for an extrajudicial resolution of the dispute. Even this function would experience a reduction in value as expectation of a judicial decision of consequence shifts wholly away from the trial court. The pyramidal shape of our present court structure rests on the institutional integrity of the trial court as a distinct part of the justice system. As such review is extended upward, only the last “court” in the chain retains full institutional integrity. More is afoot here than nostalgic or romantic reverence for trial courts. Finality and all values bound up in that precept are implicated.
Review which ignores the trial court also travels against the command of 28 U.S.C. § 2254(d) as read in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) , and the concern for the sovereignty of states presented by collateral review of state criminal convictions. Such review is “perplexing given ‘the limited nature of review provided federal courts by 28 U.S.C. § 2245 [sic].’ ” Alderman v. Austin, 695 F.2d 124, 131 (11th Cir.1983) (Fay, J., dissenting) (quoting Sumner v. Mata, 449 U.S. at 541, 101 S.Ct. at 766). Cf. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) . Indeed when other than Wither-spoon error has been asserted the principles of Sumner v. Mata have been applied in *393federal habeas review of asserted juror bias. Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
Finally, the appellate courts have long recognized the advantage of the trial judge in essaying the truth of a matter when the facts are caught up with a witness’s manner of expression. As noted, we and the Supreme Court have at the least touched this base when reviewing decisions of trial judges regarding jury selection, save for Witherspoon error, when we all have proceeded in near silence.
Nothing teaches that these three ideas, general but central, are inapt in death cases. That death cases must evoke a high level of scrutiny at every level in no way travels against any of the three expressed values. To the contrary, if we believe that a trial judge’s superior opportunity to observe gives his call a greater probability of being correct than that of a person who was not there, then it is unclear why we ought to ignore his decision in administering the Witherspoon standard.
The selection of a jury in a capital case includes many judgment calls by trial judges — calls that involve the judge’s intuition about the demeanor of the venireman, the appropriateness of his response, his manner, dress, and his inflection. It is a decision with the usual stuff of trial court decisionmaking, calls more dependent upon intuition, shrewdness, or courtroom savvy than abstract analogical processes. Correspondingly, one need not pause for long to summon up myriad examples of expression whose meaning can only be determined by the inflection and manner of its expression. For example, the simple expressions “I reckon so” and “I could hardly do so” may or may not express doubt.
In sum, ruling upon a request to exclude a venireman inevitably involves an interpretation of what was asked and answered. The dynamic trial scene is not easily conformed to a mold judicially shaped to facilitate review or to achieve a targeted level of accuracy, perhaps because few but lawyers and judges talk and think in such a fashion, peculiarly so with the interrogation of veniremen in death cases. Indeed, there is almost a pattern in the clarity and certainty of response — progressing from hesitation and vagueness at the outset toward greater comprehension and clarity at the end. And this mental groping ought not be a surprise. New citizens chosen at random have so thought through the profound moral and ethical questions implicated by a Wither-spoon qualification as to do otherwise.
A trial court’s decision to sustain a challenge for cause because the venireman would automatically vote against the death penalty sometimes presents questions of fact in the sense that the trial court must choose from permissible inferences. That choice is often aided by the opportunity to observe and sometimes cannot be made without that opportunity. If we really mean that the review is wholly afresh, one can wonder if we are telling the trial judge not to make the choice.
It would seem to follow that jury selection in capital cases presents the type of decision properly categorized as factual, and thus reviewable by a familiar standard such as clearly erroneous. But it is not so simple. First, there is the recurring difficulty of the deference due a mixed question of law and fact. See Pullman-Standard v. Swint, 456 U.S. 273, 286 nn. 16 and 19, 102 S.Ct. 1781, 1790 nn. 16 and 19, 72 L.Ed.2d 66 (1982). Second, appellate courts have independently assessed “ultimate facts.” See Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944). Third, there is a legacy, if not category, of unique review of “constitutional fact.” See, e.g., Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1938). Fourth, Witherspoon itself demands heightened appellate review. As will be seen, however, whether termed a mixed question of law and fact, ultimate fact, or constitutional fact, and despite its internal demands, according the trial court deference is not forbidden by independent appellate review of Witherspoon error. That is, an independent review of the facts may be undertaken against a backdrop of trial court discretion.
*394Appellate review of mixed questions of law and fact and questions of ultimate fact was discussed by the Supreme Court in Swint. The Court intimated that the two categories may involve essentially the same type of determination, of whether the legally determinative consideration is “satisfied by subsidiary facts admitted or found by the trier of fact.” 102 S.Ct. at 1788-89 n. 16. Cases similar to Witherspoon, involving exclusions of veniremen for bias resulting from pre-trial publicity, traditionally have been characterized as involving a mixed question of law and fact. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244 (1878). For that reason in these cases there is on appeal an independent evaluation of the voir dire testimony. Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642; United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975); Wansley v. Slayton, 487 F.2d 90, 98 (4th Cir.1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773 (1974). Yet, citing Irvin v. Dowd, we held in United States v. Robbins, 500 F.2d 650 (5th Cir.1974), that “rulings on suggestions of impartiality of the jury is within the discretion of the trial judge, and an abuse of that discretion must be clear.” Id. at 653. See also Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734 (1950). This combination of independent review and deference to the trial judge was evident in United States v. Taylor, 554 F.2d 200 (5th Cir.1977). We noted there that the trial judge had discretion to decide whether to excuse a juror but nonetheless reversed his decision not to do so. Though we did not expressly characterize our review as “independent,” we reexamined the colloquy between the judge and juror, noted that “[i]t was apparent to the judge that [the juror] was extremely reluctant to sit on this jury,” and concluded that “[t]he right to an impartial jury trial, free of fear, dominated all other considerations.” These cases establish that reviewing courts can engage in an independent review and simultaneously give weight to trial court decisions.
Independent review of Witherspoon decisions is driven in part by.its similarity to cases traditionally characterized as mixed questions of law and fact, in which the courts engage in de novo review without mentioning deference. Of particular relevance is the Swint Court’s characterization of why the Baumgartner Court there allowed de novo review:
The Court said that the significance of the clear and convincing proof standard “would be lost” if the ascertainment of the lower courts whether that exacting standard of proof had been satisfied on the whole record were to be deemed a “fact” of the same order as all other “facts” not open to review here.
102 S.Ct. at 1790 n. 16. Like the clear and convincing standard, the unmistakably clear standard pushes reviewing courts to independent review and, as Judge Randall records, with little shown deference to the trial court. Of course, that deference is not articulated with independent review does not mean either that it was absent or that it was inappropriate.
The independent character of Wither-spoon review is also explainable by its similarity to appellate review of issues termed constitutional fact. In Norris v. Alabama, Justice Hughes for a unanimous Court expressed the need not only to examine whether a rule of law has been correctly applied to established facts but also to examine historical facts- — constitutional facts — in certain instances:
The question is of the application of [an] established [constitutional] principle to the facts disclosed by the record. That the question is one of fact does not relieve us of the duty to determine whether in truth a federal right has been denied. When a federal right has been specially set up and claimed in a state court, it is our province to inquire not merely whether it was denied in express terms but also whether it was denied in substance and effect. If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights.
*395294 U.S. at 589-90, 55 S.Ct. at 580. Of course a decision to exclude a venireman under Witherspoon can involve more than the question of whether established historical facts satisfy the Witherspoon standard. It can also include resolution of disputed historical facts.
In addition to its similarity to the categories of cases in which appellate courts engage in independent review, Witherspoon review is driven by its unique formulation of a rule that carries an internal standard of review, equally unique. This is true because Witherspoon has two intertwined parts that can for analysis be separated and labelled as a standard for decision and a required level of proof. Although each part requires reviewing courts to independently review voir dire testimony in order to decide whether an exclusion was proper, each part also allows reviewing courts to give weight to the trial judge’s decision.
Witherspoon as a standard for decision offers three possibilities: (1) the venireman must be unwilling to consider the death penalty; (2) the venireman must say that he is unwilling to consider the death penalty; (3) he must both say that he is and be unwilling to consider the death penalty.2 All three are at their core factual inquiries, but there are differences. If an appellate court’s inquiry is into what a venireman believed or attempted to say, we will be forced to judge demeanor from a transcript. If the question is what was said, each court can read as well as another. The Court has said that “[ujnless a venireman states unambiguously that he would vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” Witherspoon, 391 U.S. at 516 n. 9, 88 S.Ct. at 1774 n. 9 (emphasis added). The rub is that what is said can be ambiguous in the record but unambiguous at trial due to the ability of transcript to mirror only part of the trial scene. Certainly in such a case the decision of the trial judge must count for something.
The “unmistakably clear” language suggests that Witherspoon is not only a standard for decision but also a standard of proof. Many trial court decisions are based on a preponderance standard or a substantial evidence standard. See United States v. James, 590 F.2d 575 (5th Cir.1979) (en banc). Others are based on a clear and convincing, or beyond a reasonable doubt standard. See McCormick on Evidence §§ 340-41 (1972). The unmistakably clear standard sets Witherspoon apart.
Yet nothing internal to the unmistakably clear standard forbids deference to a trial court. If there is any such internal sign it points in the opposite direction. In certain instances the only way for a reviewing court to reliably conclude that the objective fact of absolute bias was unmistakably clear is- to defer to the trial court’s judgment. To never defer would be to review according to a less than accurate view of the nature of many venire decisions. This would inevitably lead to inaccurate decisionmaking in the trial courts because trial judges and counsel would attempt to force veniremen to conform their language and thought pattern to the mold cast by the audience of reviewing judges. Thus, the accuracy of decisionmaking that the unmistakably clear standard requires would be diminished.
I recognize that accuracy in decisionmaking can be defined in different ways. If the goal is to minimize all error, the deference to the trial judge follows for the reasons I have stated. But if the goal is only to eliminate any possibility of error harmful to defendants, without regard to the overall accuracy of the proceedings, then giving defendants two wholly fresh bites at the Witherspoon apple may be more likely to achieve this end. Some have subscribed at least in the abstract to the view that appellate review of a death sentence must be controlled by this imperative. I disagree. The institutional integrity of our judicial *396system demands that a line be drawn at some point. Thus, for example, we apply Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to death penalty cases. See Bass v. Estelle, 696 F.2d 1154 (5th Cir.1983). Indeed, assertions that a capital case should be subjected to this level of absolute scrutiny may be little more than a flanking opposition to the penalty itself. Yet when it comes to Witherspoon, the argument becomes that courts ought to be willing to find error if based on the record any hypothetical scenario can be constructed, regardless of the trial court’s finding and the probability of its correctness, in which the potential juror was not inalterably opposed to imposition of the death penalty.
An extreme standard of proof coupled with a standard of decision calling for an extreme level of stated partiality requires reviewing courts to freshly make the Witherspoon decision. At the same time, both the standard of proof and nature of the venire decision itself counsel against a total ban of deference to such trial court decisions. All considered, I am persuaded that independent appellate review by a standard of abuse of discretion responds to the concerns of Witherspoon while expressing the values of comity and of respect for trial court integrity with its sometime superior opportunity for accurate decisionmaking. Independent review is an understandable expression of appellate courts’ reluctance to tie their hands in advance when the stakes are so high. Here an abuse of discretion standard will allow reviewing courts freedom to correct asserted Witherspoon error without dilution of its demanding standard while giving weight to the trial court’s decision as warranted by the circumstances of the particular case.
III.
I turn now to the specifics of the error claimed in the exclusion of veniremen Wells, Bowman and Pfeffer. Fully one-half of the effort in the trial court was devoted to the selection of a jury. Little of that effort was devoted to other than Witherspoon qualification. In other words, seven of the fifteen volumes of transcript report efforts to meet the requirements of Witherspoon. After devoting one half of the trial to jury selection, only three of the veniremen interrogated are now claimed to have been erroneously excluded under Witherspoon3
Charles D. Wells is a minister. After testifying that he had an open mind as to guilt or innocence in the case, he was asked:
Q. Let me begin then by asking you whether or not you have any conscientious, moral or religious scruples against the imposition of the penalty of death in the electric chair?
A. Let me say that morally, I do, and I don’t think that I am capable of issuing a penalty of death to any man.
He was further asked by the prosecutor:
Q. But you can’t imagine yourself doing it as one of those jurors, is that correct, sir?
A. I can hardly see myself doing it, yes.
Q. All right. Now, I don’t want you to get angry with me and I’m not trying to argue with you, but I have to ask you for your answer, because this lady is taking down your testimony at this time for the record.
I take it then from your answer that because of your religious and moral principles and feelings that you are certainly entitled to have, you cannot imagine a case where you would vote for the imposition of death in the electric chair. Is that correct, sir?
A. No, I can’t.
He was then asked by the court:
Q. Would you personally, if you were a member of a jury, would you automatically vote against the imposition of the death penalty no matter what the trial revealed?
A. Yes, I would.
Q. All right.
A. I would vote against it.
*397At this juncture, Wells was indisputably properly excludable under Witherspoon. His answers were direct and unequivocal, both in response to questions by the prosecutor and the court. Then, in response to questions by defense counsel, he made plain that his earlier answers were not made on an assumption that he would personally pull the switch “or something.” Otherwise stated, Wells had explained that causing the death penalty in an indirect manner was equally abhorrent. He was then asked by defense counsel:
Q. All right. And then, after a finding of guilt, if there is one, certain questions will be submitted to you as a juror. Now, are you saying at this time that under no circumstances, regardless of what the testimony would be, under no circumstances could you vote for the death penalty?
A. I don’t think there are any that I possibly could vote for the death penalty-
At this juncture, the minister remained unshaken in his statements that there were no circumstances under which he could vote for the death penalty. Defense counsel then asked the following questions and received the following answers:
Q. All right. Let me ask you this, sir, if you were selected as a juror, even though the State has asked for the death penalty, could you consider these two issues — and I’ll ask you the issues that you would perhaps be asked to consider. All right?
A. All right.
Q. All right. The first issue would be whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result. Could you answer that question, sir, after you had gotten all the facts?
A. Yes, yes.
Q. You could answer that all right?
A. Yes.
Q. And that wouldn’t have any trouble with your conscience, would it?
A. No.
Q. Then of course there would be another question, and that would be whether there is probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Now, could you possibly answer that question?
A. Yes, I possibly could answer that question.
Q. And would you have any quarrel or any problem with those questions?
A. I don’t think so.
Q. All right. And if you answered those questions, of course, it wouldn’t be up to you to do anything to this defendant. Those are merely questions that you answer to the Court. Isn’t that correct? (Emphasis supplied.)
A. I would say yes.
Q. Could you do that, sir?
A. I could be as liberal in answering the questions as I could.
Q. And you would answer those questions truthfully, would you not?
A. Yes, as far as my opinions are concerned.
Q. I know you’re a minister, are you not?
A. Yes, sir. That’s correct.
Q. And you could answer those questions to the best of your ability and truthfully, could you not?
A. Yes.
At no time was Reverend Wells told that affirmative answers to the questions would compel the imposition of the death penalty. To the contrary, he was asked whether he would have “any quarrel or any problem with those questions,” with the explanation that “[tjhose are merely questions that you answer to the Court.”
It is suggested that because the record does not affirmatively reflect that Reverend Wells did not know that the effect of his answers to these questions would be a death sentence, it is not unmistakably clear that he was disqualified under Witherspoon. Not only does this argument proceed upon *398an assumption that Wells knew the effect of affirmative answers to the question, an assumption unsupported by the record, it ignores the fact that defense counsel told him that these were “merely questions that you answer to the court.” It also makes all his other testimony virtual nonsense. It is suggested that Reverend Wells, despite his view that he could not vote for the death penalty, might yet have been of the view that he could answer the death penalty questions. Apart from being an unsupported hypothesis, the supposition is directly inconsistent with his testimony that he could not see himself “doing it” as one of the jurors. He was asked and answered as follows:
Q. But you can’t imagine yourself doing it as one of those jurors, is that correct, sir?
A. I can hardly see myself doing it, yes. Indeed, the witness became angry with even the suggestion that he could so vote.
There may be persons who, although opposed to the death penalty, could answer questions, the effect of which is to impose the penalty, but only a tortured reading of this transcript supports the finding that Reverend Wells was explaining that he was one of those persons.
L.R. Pfeffer is a paradigm of veniremen in capital cases. His responses to the questions of counsel and court were at the outset, to the extent they are intelligible, equivocal. The prosecution was able to elicit intelligible responses only with difficulty. Faced with a confused and confusing venireman, the court attempted to learn Pfeifer’s opinions. Pfeffer volunteered, “I know you would like direct answers but this is the best I can do and this is a vague answer.” The trial court explained to Pfeffer that only he knew his opinion. Pfeffer stated then, “if I have to make a choice between yes and no, I would say that I couldn’t make a judgment.” At this juncture, Pfeffer had progressed from an equivocal position to a clear expression of opinion. His response became certain, however, only as he was pushed by the trial judge to give an opinion one way or the other. The record is plain that the trial judge pushed for an opinion. It is equally plain that the trial judge pushed in no particular direction.
Unlike Wells, Pfeffer knew the effect of answering the sentencing questions. In response to questions by defense as to whether the sentencing questions would “pose any problems to you,” he answered:
A. I think it would, because it would have a direct bearing on the outcome anyway, what we’ve been talking about with the Judge a minute ago.
Q. Well, my question would be, could you or could you not answer that question, sir?
A. Well, I would have to say I couldn’t. I already made the statement a moment ago.
After a colloquy among counsel and the court, defense counsel put the final question to Pfeffer as follows:
Q. (By Mr. Harrison) Then, under no circumstances, Mr. Pfeffer, could you even think of voting or answering those questions if the result of those questions were to be to, in effect, give somebody the death penalty. Is that correct?
A. I think at the present time that’s correct, yes.
Despite his initial confusion and uncertainty, Pfeifer’s testimony read as a whole makes unmistakably clear that he would automatically vote against the death penalty. It is suggested that the trial judge’s insistence upon an answer somehow taints Pfeifer’s responses. The trial judge told Pfeffer that only he knew the answer to the questions. At that point Pfeffer had done little more than think aloud. It was Pfeffer who first suggested framing his responses in yes or no terms by his gratuitous statement that “if I have to make a choice between yes and no, I would say I couldn’t make a judgment.” The trial judge, following Pfeifer’s lead, put the question in yes or no terms. The difficulty is that in philosophical terms certainty that one would automatically vote against the death penalty in all cases has an internal *399continuum. There is no finite certainty in predicting one’s future response. Pfeffer translated his own level of certainty by stating what his answer would be if he must answer. Implicit in the argument that this exchange does not allow one to conclude that Pfeifer’s absolute partiality was unmistakenly clear is that the no answer expresses a range of uncertainty that exceeds the level acceptable under Wither-spoon. Otherwise stated, the argument is that extruding a juror’s views through yes or no channels does not resolve the uncertainty that Pfeffer earlier expressed. Accepting for now the premise that a juror who has no view or who after voir dire remains uncertain cannot be excluded on Witherspoon grounds, I am persuaded that when Pfeffer left the stand he had sorted his views and made a decision.
I note that Pfeifer’s responses were becoming questions themselves when the trial judge redirected the inquiry to Pfeffer declining, properly, to suggest a response. It was then that Pfeffer himself, not the judge, reached for the yes or no strainer and answered the question. Significantly, the record does not stop with the yes or no question. Defense counsel probed Pfeffer without such a preface by inquiry into whether he could answer the sentencing questions. This exchange I have set out. It concluded with the following question and answer:
Q. (By Mr. Harrison) Then, under no circumstances, Mr. Pfeffer, could you even think of voting or answering those questions if the result of those questions were to be to, in effect, give somebody the death penalty. Is that correct?
A. I think at the present time that’s correct, yes.
This sequence is important because it evidences the progressive character of Pfeifer’s level of certainty and fixity of opinion. We are not, contrary to petitioner’s suggestion, forced to rely upon an answer forced through yes or no gates to decide Pfeifer’s view. Instead we have a venireman who reached for that device and a court that then used it to provide a framework for thought. The witness was given every opportunity to explain his answer. After the yes or no exchange he was cross-examined by defense counsel. The responses were then direct and unmistakably clear. That the yes or no exchange may have been a catalyst in Pfeifer’s progressive grasp of and ability to express his own views is no vice. There was no error in the exclusion.
Finally, Mr. Gus B. Bowman, in response to the first questions regarding his beliefs regarding capital punishment, stated:
A. Well, I’ve never thought about it until I was called yesterday into this Court.
Shortly thereafter, he explained: “I doubt very seriously I could assess the death penalty. I could give him life or some other penalty, but I don’t think in my mind that I could condemn him to death.” The prosecutor asked the next question, with Bowman answering as follows:
Q. Certainly many people do not believe in the death penalty, and many people who believe in the death penalty believe in it but think that they could not do it themselves. And others, while they might not have general objections to it, could not assess or consider assessing the death penalty themselves. And I take it by your answer that in every case, no matter how serious it was, you as a juror could automatically exclude consideration of the death penalty and would in every case turn to some other form of punishment, whether it be life confinement or 99 years or whatever?
A. I think that’s true.
Q. Okay. We appreciate your candor, Mr. Bowman and we would challenge for cause.
In response to cross-examination, Bowman testified that he could only consider the penalty if “it was closer to home.” He explained that he meant by that if a member of his family were a victim.
Witherspoon does not require that exclusion be limited to veniremen who would automatically vote against the death penal*400ty in every conceivable case. Williams v. Maggio, 679 F.2d 381, 386 (5th Cir.1982) (en banc), cert. denied,- U.S. -, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). Rather, Witherspoon allows the exclusion of those veniremen who would automatically vote against the death penalty “without regard to any evidence that might be developed at the trial of the case before them.” 391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21. The state is entitled to a jury that will consider imposing the death penalty based on the evidence in the case before them. See Williams, 679 F.2d at 386. Bowman without question would have been absolutely incapable of doing so in this ease. Thus he was properly excluded.
With each of these jurors the trial judge had a superior view of what was asked, answered, and understood than do we. After independent review of the claimed errors and giving weight to the presence of the trial judge I am persuaded that his decisions were reasonable constructions of the testimony and no abuse of discretion has thus been shown. The doubts suggested by the dissent and worried over by Judge Randall’s opinion are largely spun from factual supposition. That supposition proceeds as if there was no trial judge, sworn as we to apply Witherspoon. But there was.
. See also Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 21, 31 L.Ed. 80 (1887); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878); United States v. Taylor, 554 F.2d 200 (5th Cir.1977); United States v. Robbins, 500 F.2d 650 (5th Cir.1974); United States v. Brown, 540 F.2d 364 (8th Cir.1976); Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir.1974); United States v. Palumbo, 401 F.2d 270 (2d Cir.1968); Beck v. United States, 298 F.2d 622 (9th Cir.1962); United States v. Sferas, 210 F.2d 69 (7th Cir.1954); Bratcher v. United States, 149 F.2d 742 (4th Cir.1945).
. I do not here discuss the part of the Wither-spoon standard relating to the guilt decision. Of course our objective is to learn the truth of belief, using the measure of the law, rather than the semantically esquisite measures of the philosophers.
. The transcript relating to their selection is set out in the Appendix to Judge Randall’s opinion.