dissenting:
The majority have held that King is entitled to be resentenced because the trial court erroneously refused to allow voir dire on the possibility of parole associated with a life sentence. I respectfully dissent, because this holding has no direct support in Supreme Court authority; conflicts with Fifth Circuit precedent; is logically unsound; and even if it did raise a constitutional issue should be resolved under the harmless error standard.
No one doubts that King has the constitutional right, under the sixth and fourteenth amendments, to be tried by a fair and impartial jury. Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965). The issue before us, however, is the extent to which a federal appellate court, remote in time and place from the jury selection process, can or should declare that King did not have an impartial jury because the trial court refused the following defense request:
“... to voir dire each and every prospective juror on the question of being convicted of capital murder and in the event of a life sentence that person has to serve 20 years before becoming eligible for parole in light of the fact the prospective juror is advised the mandatory sentence for capital murder is life or death.”
Neither the Supreme Court nor our Court has countenanced such Monday-morning quarter backing of jury selection in state or federal trials.
I.
The majority's explanation of the constitutional overlay on the scope of voir dire is far too expansive. The general rule is that:
The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. [Ham v. South Carolina, 409 U.S. 524, at 527-28, 93 S.Ct. 848 at 850, 35 L.Ed.2d 46 (1973).] Voir dire “is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.” Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895); See Ham, supra, 409 U.S., at 527-28, 93 S.Ct., at 850; Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931). This is so because the “determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.” Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1423, 10 L.Ed.2d 663 (1963) (Clark, J., dissenting).
Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976). In Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981), the Court observed that, “[b]ecause the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire.” Thus, unlike the majority, I find no general constitutional rule that “limits on voir dire that create an unrea*266sonable risk of bias or prejudice infecting the trial process violate due process.” A more accurate depiction of Supreme Court caselaw is that only voir dire concerning racial prejudice and death-qualification rises to a level of constitutional significance.1
The cases from which the majority take their inspiration, Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973) espouse no principle permitting wide-ranging constitutional limits on voir dire. To the contrary, both of those cases are firmly rooted in a federal habeas court’s special responsibility to enforce the fourteenth amendment’s prohibition of racial discrimination. Ham held that, under all the circumstances, including the defendant’s defense that law enforcement officers had framed him in retaliation for his active and well-known participation in civil rights activities, he was constitutionally entitled to question prospective jurors about their racial prejudice. But, as later explained by the Supreme Court, Ham did not constitutionalize racial voir dire interrogation in every case involving a minority defendant. Ristaino v. Ross, 424 U.S. at 596, 96 S.Ct. at 1021; Rosales-Lopez v. United States, 451 U.S. 182, 190, 101 S.Ct. 1629, 1635, 68 L.Ed.2d 22 (1981). In both of those cases, the defendant was held not entitled to make such inquiries. Rosales-Lopez made this point clearly:
“... there is no per se constitutional rule in such circumstances requiring inquiry as to racial prejudice, (citation omitted). Only when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court’s denial of a defendant’s request to examine the jurors’ ability to deal impartially with this subject amount to an unconstitutional abuse of discretion.
Absent such circumstances, the Constitution leaves it to the trial court, and the judicial system within which that court operates, to determine the need for such questions.”
101 S.Ct. at 1635 (emphasis added).
Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 1688, building explicitly on Ham, holds “that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” 106 S.Ct. at 1688. Turner equates its holding with “other cases involving ‘special circumstances’”. Id. Turner’s requirement thus relates only to voir dire on racial prejudice in capital cases, defining such cases as a “special circumstance” envisioned by Ham.
It cannot be over-emphasized that Ham constitutionalized the voir dire inquiry only as to racial prejudice. The petitioner in Ham sought permission to interrogate the jurors not only about race but also about the fact that he wore a beard. A seven-member Court majority rejected this request in the following terms:
“While we cannot say that prejudice against people with beards might not have been harbored by one or more of the potential jurors in this case, this is the beginning and not the end of the inquiry as to whether the fourteenth amendment required the trial judge to interrogate the prospective jurors about such possible prejudice. Given the traditionally broad discretion accorded to the trial judge in conducting voir dire, Aldridge v. United States, supra, and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner’s constitutional rights were violated when the trial judge refused to put this question.”
409 U.S. 524, 527-28, 93 S.Ct. 848, 851. We must recall that Ham’s trial and conviction occurred in the late 1960’s and early 1970’s, at the apogee of student and political activism, when the wearing of a beard might well have been thought to prejudice many *267prospective jurors. Nevertheless, Ham declined to constitutionalize this issue.
Turner v. Murray cannot be divorced from this history of deferential treatment of voir dire. Neither Turner, nor the Supreme Court capital case opinions on other issues that the majority cite, support their unprecedented extension of federal authority to review jury voir dire.
A similarly narrow interpretation of Supreme Court precedent results from a different analytical perspective.
Voir dire admittedly “plays a critical function in assuring the criminal defendant that his sixth amendment right to an impartial jury will be honored.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634. As Rosales-Lopez notes, however, there are two functions of voir dire: it exposes veniremen who will not be able impartially to follow the court’s instructions and evaluate the evidence, and it facilitates the defendant’s exercise of peremptory strikes. The former function is served by Witherspoon, Ham, Ristaino, and Turner. The Court has, however, recognized that the second function need not be carried out by exercising federal review over individual answers to every question asked or sought to be asked of the jury panel. “The Constitution does not always entitle a defendant to have questions posed ... specifically directed to matters that might conceivably prejudice him.” Ristaino, 96 S.Ct. at 1020 (citing Ham). Ham, in my view, eschewed constitutionalizing the second function of voir dire when it refused to require questions about prejudice against people with beards. In fact, it could be concluded that because there is considerable doubt about the existence of a federal constitutional right to exercise peremptory challenges, Rosales-Lopez, 101 S.Ct. at 1634 n. 6, there should in any event be no constitutional review of questions designed to facilitate the exercise of peremptory strikes. Our court, rejecting a challenge to a Texas court’s voir dire in a capital case, expressed the limits on federal review of discretionary voir dire as follows:
“One purpose of voir dire is to gain information important to the exercise of peremptory challenges. Yet, and perhaps nearly always, another purpose is to provide a spring-board for the advocate____ But usefulness to counsel, whose persuasive skills otherwise find procedural expression, is not [a] constitutional right ...”
Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th Cir.1984), cert. denied 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985) (emphasis added).
As will be seen, the inquiry sought by King falls within that type of voir dire intended to facilitate peremptory strikes or simply provide an advocate opportunity to observe the demeanor of the witness. Because inquiry on the jurors’ knowledge of parole laws is tenuously related to exposing a fatal bias, it lies closer to prejudice against people with beards than to racial prejudice and is therefore outside the spectrum of constitutional right.
II.
This Circuit has provided no assistance to the majority’s position. On the contrary, we held in Milton v. Procunier, 744 F.2d 1091, 1096 (1984), “that a trial court must be accorded wide leeway in its control over the trial scene, particularly voir dire. That deference is owed by a court charged with a responsibility of direct review. As a federal habeas court, even more remote in time, distance, and function the debt of deference is greater.” We reviewed the state court’s limit on voir dire in that capital case under the abuse of discretion standard. Previously, in Moreno v. Estelle, 717 F.2d 171, 179 (5th Cir.1983), we held that “Moreno’s contention that he should have been able to examine the jury on the possible range of punishment simply does not present a federal constitutional claim.” The majority neither cite nor distinguish the controlling effect of these cases.
III.
Logic does not support constitutionalizing a voir dire inquiry on parole laws. What such an inquiry would reveal is questionable, and whether it would help the defendant is even more questionable. Moreover, mandating such an inquiry conflicts with the Texas policy, heretofore sanctioned by the Supreme Court, of forbidding juror consideration of parole.
*268The significance of questioning veniremen on their conceptions of parole laws pales by comparison with the Supreme Court cases. In Ham, the publicity surrounding the defendant, his civil rights activism and his alleged drug offense created an intuitively obvious potential connection between racial bias and an adverse jury verdict. Likewise, in Turner v. Murray, as the Supreme Court analyzed it, the broad scope of punishment authority conferred on the jury by Virginia’s capital punishment statute afforded “... a unique opportunity for racial prejudice to operate but remain undetected." 476 U.S. 1, 106 S.Ct. at 1687. In this case, no such connection can be inferred. One must first assume, as the majority do, that prospective jury members believe that a defendant convicted of capital murder may receive parole from a life sentence; that if he is entitled to parole the defendant will necessarily be released back into society; that his release will occur relatively soon; that given the possibility of parole he will remain dangerous to society;’ that therefore only the death penalty exacts proper retribution; and that the trial court’s repeated admonitions concerning a mandatory life sentence and against considering parole have no practical influence. With no evidence in the record to support this string of inferences, the majority conclude that “widely held misconceptions about the actual effect of imposing a life sentence raise an unacceptable risk that the death penalty may be imposed on some defendants largely on the basis of mistaken notions of parole law."
One may hypothesize at length about the potential, subliminal bias caused by jurors’ misconceptions of parole law. The majority’s argument would apply equally to any misconception about applicable law, e.g. the reasonable doubt standard, the availability of appellate review, or the defendant’s failure to testify. If a misconception exists, it is no different from any other particular influence on jurors such as their personal experiences with the legal process or whether they recently saw “Dirty Harry”. I simply do not see how we can constitutionalize the inquiry about jurors’ views of parole laws without constitutionalizing practically every other discrete inquiry made of prospective jurors.
Moreover, unlike racial prejudice, or an inability conscientiously to apply a capital murder statute, it is not self-evident that such an inquiry would aid the defendant. If King’s counsel really suggested to prospective jury members that although they might award a mandatory life sentence, King could return to society in 20 years via parole,2 he could easily predispose them against such a sentence given the egregious circumstances of this capital case. The view that revealing the possibility of parole to the jury is detrimental to the defendant is shared by a majority of the states, which decline to allow juror consideration or instructions concerning parole. California v. Ramos, 463 U.S. at 1013-14, 103 S.Ct. at 3460 n. 30. Texas is among those states.3 Munroe v. State, 637 S.W.2d 475 (Tex.Crim.App.1982). In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the state sought to enforce an instruction informing the jury of the possibility that a capital defendant’s life sentence could be commuted, because the state believed this information would influence the jury’s determination of the future dangerousness of the defendant and increase the likelihood of a death penalty. Thus, paradoxically, King’s requested voir dire would play into the hands of those who wanted the jury to know that a capital murder convict may not really be imprisoned for life.
Herein lies the additional problem in King’s position. Ramos decided that whether jurors are informed by instruction of the state’s parole laws raises no constitutional issue. Although California’s Briggs Instruction accordingly escaped constitutional condemnation, the Court observed that states could enforce a stricter *269standard of preventing jury instruction on parole. It seems inconsistent to require voir dire of the jury on parole issues as a constitutional matter, while holding that the far more significant right of the state to frame jury instructions governing commutation in capital sentencing raises no constitutional issue. California v. Ramos, 103 S.Ct. 3446. The inconsistency is obvious. In Munroe, the Texas Court of Criminal Appeals held, “it would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional [i.e. an interference by the judicial branch of state government with the function of the executive branch] to attempt to delay the exercise of the clemency powers or to avoid the possibility of granting parole by increasing punishment in anticipation thereof.” 637 S.W.2d at 477, quoting Sanders v. State, 580 S.W.2d 349, 351 (Tex.Crim.App.1978). Conducting voir dire on jurors’ concepts of parole, contrary to this reasonable state policy, raises the issue explicitly in their minds. Once raised, the inquiry reifies the majority’s prophecy that even a subsequent instruction will not erase the issue from jurors’ minds. Protecting King’s alleged constitutional right to voir dire on parole may well deprive him of the benefit of the generous Texas policy forbidding jurors from considering parole.
IV.
My final disagreement with the majority lies in their determination that this allegedly unconstitutional restriction on voir dire requires that King be resentenced. They draw this requirement from the considerably different case of Turner v. Murray, in which voir dire concerned the uniquely sensitive issue of racial prejudice. Here, any error in voir dire was rendered harmless by the court’s charge. See Moreno v. Estelle, 717 F.2d at 178-79. The court charged the jury at punishment:
You are instructed that the punishment for capital murder is by death or confinement in the penitentiary for life. You are not to discuss among yourselves how long the accused would be required to serve the sentence that you impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the governor; and are no concern of yours.
King did not object to these instructions. Surely the court’s unequivocal instruction to the jury cured them of the desire to bring improper or erroneous conceptions of parole to bear in their decisionmaking. The instruction essentially said, as the state contends, that “Life means life.”
In this connection, I would add that King’s concern about the juror’s beliefs regarding parole laws must be regarded as a makeweight argument. The transcript of voir dire in this case occupies 1,500 pages, and the jury selection process took several days, including the interrogation of three or four dozen prospective jurors. It flies in the face of common sense to suggest that asking each juror this one additional question or series of questions would have yielded a significantly more trustworthy jury panel than did the process employed by the trial court. Reason is strained to suggest that King’s attorney was fatally disabled from exercising his peremptory strikes.4
I respectfully DISSENT.
. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), of course, constitutionally controls the qualification of jurors to serve in death penalty cases, but this standard also defers to the trial court’s credibility choices. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The majority here have bypassed the trial court’s approval of King's jury as impartial.
. Tex.Code Crim.Proc.Ann. art. 42.12, § 3f(a)(l)(A) and § 15(b). (Vernon 1979) (Deleted Sept. 1, 1985).
. Texas juries are now instructed on and may consider the possibility of parole for certain felonies, but not in capital cases. In addition, juries may not consider how parole would be applied to a particular accused. Tex.Crim.Proc. Code Ann. art. 37.07 § 4 (Vernon Supp.1986).
. Because the court, in my view, should not remand for resentencing it is unnecessary to opine at length about this court’s prior decision in O’Bryan v. Estelle, 714 F.2d 365 (5th Cir.1983) with whose result and reasoning I agree.