concurring specially:
I concur in the result announced for the court by Jiidge Johnson.
I concur only because, on this record, Mr. Murphy was disqualified from serving as a juror but it had not been clearly shown that he would automatically vote against the imposition of capital punishment regardless of the evidence. Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1967). I agree with all that Judge Fay says touching upon the peculiar position occupied by a trial judge, enabling him or her best to evaluate the venireperson’s responses to Witherspoon questions. I do not find it remarkably different from what is said by Judge Johnson. Perhaps I should be inclined to show more deference to the finding of the trial judge than either. A conscientious trial judge must be bent upon determining if a prospective juror has such a mind set that he or she would refuse to vote for the death penalty regardless of the evidence in the case. That is fact-finding. “The state of a man’s mind is as much a fact as the state of his digestion.” Eddington v. Fitzmaurice, 29 Ch. 459, 483 (1885) (Bowen, L.J.).
Yet the record must contain sufficient evidence to justify a finding of fact that a venireperson was of such a mind set that he or she was, under the law, disqualified, or the finding cannot be said to be supported. In Mr. Murphy’s case, there was not sufficient evidence. He was clearly shown to be a person who could not vote in favor of capital punishment without violating his principles. He was not asked (so he never said) whether or not, if the evidence were sufficiently strong and the circumstances sufficiently aggravating, he could nevertheless vote to recommend the death penalty.
Judge Fay recounts for us the painstaking and conscientious efforts of Judge De-well to adhere to the teachings of Wither-spoon in the voir dire proceedings.1 It seems clear that Mr. Murphy heard and, no doubt, understood what had been asked of those who had been examined before him. One must assume that he fully expected to be asked, after he had acknowledged his principled opposition to the death penalty, whether or not he could nevertheless vote in favor of it if the evidence in the case indicated it to be appropriate under the law. For aught appearing, he may have felt compelled under his oath to say that he could. Until it appeared that he could not, he was not disqualified. Applying the teachings of Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), the writ must issue, conditioned upon resentencing.
I find nothing in this record to indicate that the jury which convicted and recommended sentence for Darden was one “uncommonly willing to condemn a man to die.” Judge Fay gives us a glimpse of Darden’s crimes. We do not fix sentence; we merely pass upon contentions that the proceedings leading to the sentence were constitutionally flawed. Witherspoon and Davis require me to conclude that the disqualification of Mr. Murphy was such a flaw.
For this reason, I concur in the judgment.
FAY, Circuit Judge, concurring in part and dissenting in part, with whom RONEY and HENDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge, join.
Over ten years ago, on September 8,1973, Willie Darden shot Carl Turman between the eyes and killed him while robbing his wife, Helen Turman. Interrupted by a sixteen year old boy who tried to aid Carl Turman, Darden tried to kill him by shooting him in the mouth, neck and side. In addition, Darden attempted to force Helen Turman to commit an unnatural sex act upon him at gun point. Convicted and sentenced to death, Darden has exhausted his *1552legal remedies in both the state and federal courts. By a divided and confused court, the majority now holds that the trial jury selected in January, 1974 was not asked the proper questions under Witherspoon.1 I concur in that portion of the majority opinion discussing the law controlling the With-erspoon issue but dissent from that portion dealing with the application of this legal standard.
As stated in the panel opinion:
Witherspoon has been interpreted and applied in a plethora of cases. It is well settled that a state has the power to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those 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.
Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980), quoting Witherspoon v. Illinois, 391 U.S. at 522-23, n. 21, 88 S.Ct. at 1777 (emphasis in original).
Neither Witherspoon nor Adams provides trial courts with a formula or requisite colloquy for the proper excusal of prospective jurors on Witherspoon grounds. Instead, the trial judge must decide whether each particular venireper-son has made it ‘unmistakably clear’ that he or she is within one of the two prongs of Witherspoon. The trial judge is in the best position to evaluate the prospective juror’s demeanor and answers to the questions. For this reason, trial judges are generally accorded broad discretion in evaluating juror impartiality. See, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); United States v. Robbins, 500 F.2d 650, 653 (5th Cir.1974). This tenet has even greater efficacy in a situation such as the present one — a federal appellate court reviewing the decision of a federal district court on a § 2254 habeas corpus petition alleging constitutional error in a state trial.
699 F.2d at 1037-8.
As pointed out by the majority, application of the Witherspoon rule involves a mixed question of law and fact. Mixed questions of law and fact involve the application of legal principles to the historical facts. The development of the facts is in the trial court. It is the trial judge who conducts and participates in the voir dire examination. It is the trial judge who must evaluate, analyze and interpret the responses of the venirepersons. “In assessing the adequacy of a venireperson’s response to Witherspoon questions, a reviewing court must grant some deference to the trial court’s assessment of the juror’s demeanor and clarity of his answer.” McCorquodale v. Balkcom, 721 F.2d 1493 at 1498 (11th Cir.1983). (emphasis added) “Witherspoon requires a reviewing court to independently review the record to ensure that the exclusions were proper, but that review must take into account that the trial judge was in a much better position to evaluate the clarity of a juror’s response.” Id. at 1498, citing O’Bryan v. Estelle, 714 F.2d at 395 (5th Cir.1983) (Higginbotham, J. concurring). The discussion by Judge Higginbot-ham in O’Bryan, cited above, is an excellent analysis of the many factors involved in the standard of review for appellate courts dealing with this issue. I adopt it in full and set forth here some pertinent extractions.
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, *1553his 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 T reckon so’ and T 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. Few citizens chosen at random have so thought through the profound moral and ethical questions implicated by a Witherspoon 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.
Id. at 393.
Appellate 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.
Id. at 394.
In summation, Judge Higginbotham concludes:
An extreme standard of proof coupled with a standard of decision calling for an *1554extreme 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.
Id. at 396.
My disagreement with the majority holding is in the application of our yardstick to the record of this case. The majority opinion has extracted the question put to Mr. Murphy after he was called into the jury box but ignores all that went on in the courtroom before that moment. Most respectfully, I suggest this is not the correct approach. Trial juries are selected in a variety of ways but none are a mystery. This particular jury was selected in a very routine fashion. All of the prospective jurors were seated in the courtroom. Preliminary remarks and instructions were given. A series of questions was propounded to the group and then to individuals seated in the jury box. All in the courtroom participated and were in a position to hear the proceedings. As usual, the questioning was more detailed and more personal when directed to those first placed in the box. Of necessity many of the questions were repeated many times, particularly the questions going to the Witherspoon issue. As the proceedings progressed the judge and counsel would refer to questions asked earlier rather than to repeat each again and again. The following extracts illustrate what transpired before Judge John H. Dewell on January 15, 1974, in the County courthouse, Inverness, Florida.
The trial judge explained to the jury their role in a bifurcated capital trial:
THE COURT: Now the first count, first degree murder, charges what is under the present law a capital offense. You may be aware that some time ago the capital punishment law of Florida was declared invalid by the Courts, by the U.S. Supreme Court. Since then the legislature has passed a new capital punishment law in Florida that is, and that law is in effect here today. Now under the new law in the event of a capital crime, such as we have here today, we have what is known as a bifurcated trial. That is a trial will be conducted in two parts.
In the first part the jury will hear the evidence in the case and will determine the guilt or the innocence of the defendant without regard to punishment at all, just determine the guilt or innocence of the charge. In the event the jury should return a verdict of not guilty or guilty of some lesser included offense less than a capital crime, of course, then that is the end of the trial. In the event that the jury should come back with a verdict of guilty of first degree murder, which is the capital offense then would be held by the same jury the second part of the bifurcated trial.
During the second part of the trial the jury would then be allowed to hear additional testimony concerning facts that were not admissible in consideration of the guilt or innocence. Matters of age or other factors listed in the Statute are mitigating or aggravating factors which could be considered. The jury would then, by a majority vote — now a vote of guilt or innocence must be a unanimous verdict, everyone must agree — but on your second verdict which is known as an advisory sentence the jury by a majority vote would recommend to me as a Court what the proper sentence should be. If they find that the aggravating circum*1555stances are sufficient and they are not outweighed by mitigating circumstances then the proper recommendation would be that the death penalty be imposed. If they find that the mitigating circumstances outweigh any aggravating circumstances, then the recommendation, the verdict should be the advisory sentence should be for life imprisonment.
In either event the final decision is not the jury’s. The final decision is rested solely with the Court. It will be my decision in the event of a verdict of guilty of first degree murder it will be my decision to whether or not, my determination alone, as to whether or not this defendant should go to the electric chair. I do want you to understand though that the law intends and I certainly would give great weight to what the advisory sentence would be. So you should not take your duties lightly. However, I would not be obligated to follow it. The jury might return a recommendation, advisory sentence of the death penalty and I might reduce it to life imprisonment and the jury might recommend life imprisonment and I would feel that they were wrong and sufficiently strongly to go ahead and administer the death penalty anyway. Both have been done in this state under the law, the new law.
Now that is a procedural situation, that is where we stand. I will tell you further in the event of life imprisonment on a capital crime the law provides that the defendant shall serve not less than twenty-five calendar years before he becomes eligible for parole which is contrary to the usual life sentence in any other life sentence the ordinary parole laws would apply.
Now do y’all understand the procedure in a bifurcated trial?
State Transcript Ex. Vol. III at 25-28.
At this time I want to get off into a different area concerning the capital punishment feature of the case. I have explained to you already the basic procedure. How we have a two section trial and how although the final determination in the event of a verdict of guilty of first degree murder the final determination as to penalty will be mine. But that you, if you are selected on the jury, would be called upon to listen to further testimony and to advise me by advisory sentence.
Now at the time of the submission of the case, should that time ever arrive, you will be instructed by me on the law as to what matters you should consider and what you should not consider and how you should go about in arriving at your advisory sentence. Under certain circumstances if you find the aggravating circumstances are sufficient they are not outweighed by mitigating [sic] then it would be proper under the law your correct verdict would be to recommend the death penalty.
Now I am going to ask each of you individually the same question so listen to me carefully, I want to know if any of you have such strong religious, moral or conscientious principles in opposition to the death penalty that you would be unwilling to vote to return an advisory sentence recommending the death sentence even though the facts presented to you should be such as under the law would require that recommendation? Do you understand my question?
MR. MALONEY: Your Honor, pursuant to the motion I filed beforehand I object to this question. I believe that it is irrelevant to the matter at hand and I think that the discussion of this at this time prejudices the defendant’s right to a fair and impartial trial.
THE COURT: All right, sir. Motion will be denied and the objection overruled.
All right, Mrs. Macy do you hold such conscientious moral or religious principles in opposition to the death penalty you would be unwilling under any circumstances to recommend the death sentence?
MRS. MACY: No, sir.
THE COURT: Do you, Mr. Blankenship?
MR. BLANKENSHIP: No, sir.
THE COURT: Mr. Pellellat?
MR. PELLELLAT: No, sir.
*1556THE COURT: Mrs. Spike.
MRS. SPIKE: No, sir.
MR. VARNEY: Yes, sir.
THE COURT: You feel then, sir, that even though and I am not saying it will it would be purely speculative, in the event that the evidence should be such that under the law that should be the legal recommendation because of your conscientious beliefs?
MR. VARNEY: I believe I would.
THE COURT: All right, sir. You will be excused.
MR. MALONEY: I renew the objection. I do not think he should be challenged for cause.
THE COURT: Yes, sir, the objection will be noted and overruled.
All right, Mr. Varney, you will be excused. Thank you very much for your service.
CLERK: Number 114.
THE COURT: Mrs. Hann, do you hold such strong beliefs that you would be unwilling under any event to return a death sentence?
MRS. HA.NN: No, sir.
THE COURT: Mr. Waller?
MR. WALLER: No, sir.
THE COURT: Mr. DeMilt?
MR. DeMILT: No, sir.
THE COURT: Mr. Dorminy?
MR. DORMINY: No, sir.
THE COURT: Mrs. Keck?
MRS. KECK: No, sir.
THE COURT: Mr. Roberts?
MR. ROBERTS: No, sir.
THE COURT: Mr. Mays?
MR. MAYS: Yes. I could not recommend it.
THE COURT: All right.
You will be excused, Mr. Mays. Mr. Maloney, I assume you wish the same objection to apply to him.
MR. MALONEY: Yes, Your Honor.
THE COURT: So recorded.
(Mr. Mays was excused from the jury box).
Id. at 42-46.
The two prospective jurors that were added to replace those excused were then examined.
THE COURT: Do either of you hold such strong moral or religious conscientious principles in opposition to the imposition of the death penalty that you would be unwilling to recommend the imposition of the death penalty regardless of the evidence?
MR. PURCELL: No.
MRS. O’BRY: No.
Id. at 49.
Mr. McDaniel, assistant state attorney, conducted his examination of the prospective jurors.
Mrs. Keck, did you hear the indictment read, the charges against the defendant?
MRS. KECK: Yes, sir.
MR. McDANIEL: Merely hearing the indictment understanding he is charged with a capital offense and then robbery and then I believe assault with intent to commit first degre murder are these such horrible crimes that you would rather not sit? Are sitting there — I might be if I were in your position — saying ‘Please don’t make me stay. Let me go’? Are you in that position?
MRS. KECK: I don’t believe so.
MR. McDANIEL: Mr. Roberts?
MR. ROBERTS: Yes, sir.
MR. McDANIEL: You feel the same way, you don’t mind serving on this type of jury?
MR. ROBERTS: No, sir.
MR. McDANIEL: Mr. Purcell, other than your job?
MR. PURCELL: No, I don’t mind.
MR. McDANIEL: Mrs. O’Bry?
MRS. O’BRY: No.
MR. McDANIEL: Mrs. Spike?
MRS. SPIKE: No.
MR. McDANIEL: I know I am pronouncing your name wrong.
MR. PELLELLAT: Pellellat.
*1557MR. McDANIEL: You understand what the man is charged with?
MR. PELLELLAT: Yes.
MR. McDANIEL: And you have no objection to sitting on this type of jury?
MR. PELLELLAT: No.
MR. McDANIEL: And Mr. Blankenship?
MR. BLANKENSHIP: No, sir.
MR. McDANIEL: Mrs. Macy?
MRS. MACY: No.
MR. McDANIEL: Mr. Waller?
MR. WALLER: No.
MR. McDANIEL: Mr. DeMilt?
MR. DeMILT: No.
MR. McDANIEL: Mr. Dorminy?
MR. DORMINY: No, sir.
Id. at 52-54.
After Mrs. O’Bry, Mr. Waller, and Mr. DeMilt were peremptorily excused three additional prospective jurors were questioned.
THE COURT: Do either of the three of you hold such strong religious, moral or conscientious principles in opposition to the imposition of the death penalty that you would be unwilling to vote to recommend the death penalty regardless of what the evidence was?
MR. CARHUFF: No, sir.
MR. SCHNEIDER: No, sir.
MRS. LUCKER: No, sir.
THE COURT: Do any of you know of any reason good, bad or indifferent whatsoever whether it is a reason or just an excuse why you feel it might be difficult for you to sit here and be fair and impartial in a trial of this case?
MR. CARHUFF: No, sir.
MR. SCHNEIDER: No, sir.
MRS. LUCKER: No, sir.
THE COURT: You feel that you can and you would return a verdict based upon the evidence and the law which would be fair to both the State and to the defendant?
MR. CARHUFF: Yes, sir.
MR. SCHNEIDER: Yes, sir.
MRS. LUCKER: Yes, sir.
88-89.
Mr. White, another assistant state attorney also examined the prospective jurors.
The Judge will instruct you that when you retire to the jury room to consider your verdict you have basically two things that you can look to; the law that this Court gives you and the evidence that comes from that chair right there. Now in everybody’s mind in this courtroom today, and I am sure in yours, is the fact that this is a capital crime. Nevertheless would you hold true to your oath as jurors and consider two things in that jury room: the law that this Court gives you and the evidence that comes from that chair and nothing else? Would each of you do that?
Would each of you realize that just because this is a very serious crime, a capital case, the State has no higher burden of proof than it has on any other criminal case?
Id. at 92.
Mr. Roberts, Mrs. Spike, Mr. Purcell and Mrs. Keck were peremptorily excused. After a recess for lunch, the questioning continued for jurors who replaced those excused.
THE COURT: Ms. Carn, the fact your husband for a while was a police officer and the fact that we have here listed as witnesses many police officers and deputy sheriffs conceivably could raise a little bit of a problem. Do you think that because of your husband’s previous occupation that you might be a little inclined to give what the officers say more weight than you would any other witness you didn’t know?
MS. CARN: I don’t think that I would; but I do not believe in capital punishment.
THE COURT: The question isn’t ma’m, whether you believe in capital punishment or not; the question is whether or not you have such a strong disbelief in it as to make it unable for you to vote to return a recommendation of the death *1558penalty regardless of what the evidence might be.
MS. CARN: That’s right.
THE COURT: All right, ma’am. Then we will excuse you right now. I appreciate your candor.
MR. MALONEY: Your Honor, once again I object. I don’t think that is relevant
THE COURT: Objection will be noted.
(Ms. Carn was excused from the jury box.)
Id. at 106-07.
BY THE COURT: I have asked the others and I will ask each of the four of you whether you have such strong religious, conscientious or moral principles against the imposition of the death penalty that you would be unwilling to vote to return a recommended sentence of the death penalty regardless of what the evidence or the facts might be?
Would you Ms. Pigeon?
MS. PIGEON: Yes, sir.
THE COURT: Mr. Wall?
MR. WALL: No, sir.
THE COURT: How about you, Ms. Maher?
MS. MAHER: Yes, I do have such convictions. I am a Seventh Day Adventist.
THE COURT: And no matter what the evidence showed you don’t think you would vote for it?
MS. MAHER: I couldn’t, sir.
THE COURT: Very well, over the objections of the defendant she will be excused.
(Ms. Maher was excused from the jury box.)
THE COURT: How about you, Mr. Parker?
MR. PARKER: No.
CLERK: Henry M. Embach. Number 34.
(Mr. Embach, was seated in the jury box.)
Id. at 109-10.
THE COURT: All right. Mr. Embach, do you have such strong religious or moral or conscientious principles in opposition to the death penalty that no matter what the evidence is you would not be willing to vote to return a verdict?
MR. EMBACH: No, sir.
THE COURT: Recommending it.
MR. EMBACH: No, sir.
THE COURT: Fine, sir.
Now are any of the four of you new prospective jurors, are you conscious of any reason whatsoever why you could not sit as fair and impartial jurors in this case?
Do you know of anything at all in your background?
All right, Mr. State Attorney, you may inquire.
MR. McDANIEL: Thank you, sir.
How many of the jurors work for Florida Power?
I guess some of the ones that are gone must have worked for Florida Power.
Mr. Wall and Mr. Embach, Mr. Parker and Ms. Pigeon, did all of you hear the questions that were asked this morning by both myself, by Mr. Goodwill, by Mr. Maloney, Mr. White and by Mr. Kovach?
Would any of your answers be substantially different than those answers given by the members now present on the jury?
Any of the questions that I asked or anyone else asked raises any question in your mind.
You heard the explanation of presumption of innocence by Mr. Goodwill and Mr. Maloney, and, of course, the Court. Each of you heard that explanation.
Can you assure me at this time you can look at the defendant and say to yourself that he is innocent, “I will presume him innocent and require me and Mr. White to prove to you by the evidence from this stand that he is guilty beyond a reasonable doubt?
Id. at 112-13.
Mr. Blankenship was peremptorily removed and was replaced by Daniel Lord.
THE COURT: Are you conscious of any reason why you could not sit in this case as a fair and impartial juror?
MR. LORD: No, sir.
*1559THE COURT: Do you have such strong religious or moral or conscientious principles in opposition to the death penalty that you would be unwilling to recommend, no matter what the facts were, you would be unwilling to recommend the death penalty to the Court?
MR. LORD: No.
THE COURT: All right, Mr. McDaniel, it is your turn.
MR. McDANIEL: Thank you, Your Hon- or.
Mr. Lord, I think I have approximately one question.
At any time today has there been any question asked by me to any of the jurors, prospective jurors that you think that your answers would have been different that what I wanted, what was responded to by the other jurors?
MR. LORD: No.
MR. McDANIEL: OK.
Id. at 131-32.
Mrs. Pigeon was peremptorily excused and was replaced by Jack Dwayne Hudson.
THE COURT: Do you have such strong principles in opposition to the death penalty under no factual situation would you be willing to vote to recommend to the Court the imposition of the death penalty?
MR. HUDSON: No.
THE COURT: You heard me this morning explain to all of the jurors the principle of presumption of innocence as applies to this defendant and the requirement his guilt be proved beyond a reasonable doubt before you could convict?
Do you feel that you will be able to accord him these rights?
MR. HUDSON: Yes, sir.
THE COURT: Will you do that, sir?
MR. HUDSON: Yes, sir.
THE COURT: Do you know of any reason why you could not sit in this case as a fair and impartial juror and return a verdict favorable both to the State and to the defendant?
MR. HUDSON: No, sir.
THE COURT: All right, Mr. White.
Id. at 140-41.
Mr. Lord was excused and replaced by Mrs. Helen Mays.
THE COURT: Mrs. Mays, you heard all of the questions today and I imagine you know all of the questions and answers by heard [sic] by now, but I will try you out on your memory.
Are you acquainted with the defendant over here?
MRS. MAYS: No, sir.
THE COURT: Willie Jasper Darden. Have you heard of him or this case before?
MRS. MAYS: No, sir.
THE COURT: Do you know any lawyers involved or any witnesses?
MRS. MAYS: No, sir.
THE COURT: Do you have any religious, moral or conscientious principles against the death penalty that are so strong that you would be unwilling to vote to recommend the death penalty regardless of what the facts might be?
MRS. MAYS: No, sir.
Id. at 150-51.
THE COURT: Mrs. Mays, do you know anything about this case at all?
MRS. MAYS: No, sir, I don’t.
THE COURT: I have been through that. Have I asked you if you have any conscientious beliefs against the death penalty?
MRS. MAYS: No.
THE COURT: Do you know of any reason why you couldn’t sit as a fair and impartial juror in this case today?
MRS. MAYS: No.
Id. at 157.
Mrs. Mays was peremptorily excused and was replaced by Ronald T. Staha.
THE COURT: Do you have any opinions or principles in opposition to the death penalty that are so strong that it would make it impossible or very difficult for you to vote to recommend a verdict of a death sentence regardless of what the facts might be?
*1560MR. STAHA: No, sir.
Id. at 160.
Mr. Staha was excused and was replaced by Theodore T. Murphy.
THE COURT: Mr. Murphy, what is your occupation?
MR. MURPHY: Retired.
THE COURT: What did you do prior to retirement, sir?
MR. MURPHY: Several jobs. I was eight and half years in the administration office in a seminary, before that I was thirty years with the utilities.
THE COURT: What seminary were you with, sir?
MR. MURPHY: St. Píos, Uniondale, New York.
THE COURT: Do you have any moral or religious, conscientious moral or religious principles in opposition to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts?
MR. MURPHY: Yes, I have.
THE COURT: All right, sir, you will be excused then.
(Mr. Murphy left the jury box.)
CLERK: Cecelia Clark Mulroy. Number 85.
THE COURT: Mrs. Horne you will note the defendant object [sic] to him being excused for cause.
(Mrs. Mulroy was seated in the jury box.)
THE COURT: Mrs. Mulroy, would your answers to the questions that I have been asking the other jurors would be the same as theirs?
MRS. MULROY: Yes, sir.
THE COURT: You know nothing about the case; you don’t know the defendant or none of the lawyers.
MRS. MULROY: No.
THE COURT: None of the witnesses.
MRS. MULROY: No, I don’t.
THE COURT: If the facts justify it would you have no such principles in opposition to the death penalty that you would be unwilling to vote to recommend the death penalty?
MRS. MULROY: Depending on the evidence.
THE COURT: Yes, ma’am.
Id. at 165-66.
A jury of twelve was accepted and sworn and alternate jurors were questioned.
In my opinion the excusal of Mr. Murphy is supported by this record. The trial judge concluded that Mr. Murphy could not follow the law and would not vote for any verdict that might result in the death sentence regardless of the evidence presented or the facts found. Mr. Murphy had worked “thirty years with the utilities.” After this career it appears he worked in the administrative office of the St. Pios Seminary, Union-dale, New York. It would not be unreasonable to draw certain conclusions from these facts above. Mr. Murphy’s response to the Witherspoon question is unequivocal. Only the trial judge could evaluate its forcefulness or the manner in which it was made. Mr. Murphy had heard the same, or similar, question many times that day. He probably knew it was coming and had thought about it long before being seated in the jury box. To suggest that the trial court’s ruling was based upon one question and one answer is to ignore reality (and the record of the state court proceedings).
Applying any standard2 to the ruling in question leads me to the conclusion that Mr. Murphy was properly excused for cause. Most respectfully, I dissent.
. Fully acknowledging the flaw Judge Johnson has detected, see supra note 4 and accompanying text (at 1531), it seems clear to me that Judge Dewell understood and made diligent effort to apply Witherspoon in these proceedings.
. The habeas petition in this matter was filed on May 21, 1979. The district court denied relief on May 8, 1981. Notice of appeal was filed on June 9, 1981. Our panel opinion was issued on February 14, 1983. The en banc court considered the case and found itself evenly divided. An appropriate order was entered on July 1, 1983. On petition for rehearing, the en banc court reconsidered the case and now issues this opinion.
. If "abuse of discretion” is applied as the standard, there is none; if “a close study of the voir dire transcript to determine whether a venire-person was improperly excluded from the jury” is the standard, the majority has in my opinion failed to study this record closely enough; and if “an independent appellate review” means that the court of appeals is going to determine the state of mind of the venireperson involved, we are simply wrong.