specially concurring:
I concur in the majority opinion.
My brother Clark finds my pre-Witt1 observations to have been well taken. As a statement of what I perceived the law to have been when I wrote those passages, I do not unsay a word. I am, now, however, further instructed.
Witt is a major correction addressed to those of us who have accepted footnote 21 of Witherspoon2 as command. Having consisted of dicta, then, it is held to be, now. Witt, 105 S.Ct. at 851. While we have lost our touchstone, to which I repaired, we are re-directed to the traditional test. Is the juror fair and impartial? See Witherspoon, 391 U.S. at 532-40 (Black, J., dissenting).
The remnant of Witherspoon seems to be this. A juror is no more disqualified because he or she is opposed to the death penalty than is one in favor of it. All are qualified, on this issue, who can apply the law — including mitigation, aggravation, and other elements of capital punishment— without bias in the ease to be tried. “To hold that Witherspoon requires anything more would be to hold, in the name of the Sixth Amendment right to an impartial jury, that a State must allow a venireman to sit despite the fact that he will be unable to view the case impartially.” Witt, 105 S.Ct. at 851.
Whether released from or cast adrift from the criterion of footnote 21,1 have no difficulty in concluding, as did the trial judge, that accepting venireman Murphy would have qualified one as a juror who was not impartial. Id. at 853-55.
. Wainwright v. Witt, — U.S. -, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
. Witherspoon v. Illinois, 391 U.S. 510, 522-23, 88 S.Ct. 1770, 1776-78, 20 L.Ed.2d 776 (1968).