dissenting:
Respectfully, I dissent. The majority has concluded that a Caldwell violation made during voir dire benefits the defendant. The majority speculates that a capital defendant profits by Caldwell error at voir dire because misleading comments about the jury's responsibility in the capital sentencing process increase the possibility that a juror opposed to the death penalty is empaneled. This conclusion is contrary to Caldwell, to our decision in Adams v. Wainwright,1 and to the facts of this case.
In Caldwell, the Supreme Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985). The offending comments in Caldwell were made by the prosecutor and trial judge at closing argument, not at voir dire. We held in Adams, however, that misleading comments made during voir dire can violate Caldwell 804 F.2d at 1531 n. 7. Voir dire is the court’s and counsel’s first opportunity to explain the case to the jury. At voir dire the jurors obtain their “first impression” about the capital sentencing process, and this impression undoubtedly retains an influence during the rest of the case.
The majority attempts to distinguish Caldwell and Adams by arguing that misinforming Stewart’s jury about its role as a capital sentencer “was probably beneficial to the defense.” At 3507. I cannot agree. Any benefit that a defendant might obtain by the empaneling of a juror opposed to the death penalty is probably neutralized by the misinformation that the juror receives about the importance of his or her task. Indeed, the majority stresses this point when it states, “A prospective juror who could not bring himself to impose the death penalty might nevertheless find with*1497in himself the ability to recommend the death penalty.” Id. (emphasis in original). This result is precisely why misleading comments at voir dire violate Caldwell. We observed recently in Mann v. Dugger, 844 F.2d 1446 (11th Cir.1988) (en banc), that juries in Florida capital cases do not merely recommend a sentence; the law of Florida requires the trial judge to give the jurors’ decision great weight. Furthermore, “the Supreme Court of Florida has recognized that a jury recommendation of death has a mi generis impact on the trial judge, an impact so powerful as to nullify the general presumption that a trial judge is capable of putting aside error.” Mann, 844 F.2d at 1454. If a Florida juror is influenced to “find within himself” the ability to recommend the death penalty because he labors under a state-induced misconception about the nature of his task, Caldwell has been violated. It is farfetched to argue that such a juror is “an ally of the defense.” 2
Even if the majority’s theories about the beneficial effect of Caldwell violations are applicable in some trials, they were not in Stewart’s case. The majority discusses at some length the empaneling of juror Thibo-deau, who expressed reservations about the death penalty. Yet the prosecutor successfully challenged for cause at least eight other persons because they expressed opposition to, or reservations about, the death penalty: prospective jurors Jackson, Tr. 280, Bouquio, Tr. 287, Johnson, Tr. 290, Bross, Tr. 374, Hill, Tr. 376, Gillis, Tr. 439, Dykes, Tr. 467, and McRae, Tr. 559. The record thus refutes the majority’s suggestion that Stewart received a substantial boon from the misstatements of the law at voir dire.
Rather than dwell on the potentially beneficial effects of Caldwell error, I would simply conclude that misleading statements to the jury about its role in the sentencing process that are made by defense counsel do not violate the eighth amendment but must be raised as error under the rubric of ineffective assistance of counsel. Caldwell error is a particular species of prejudicial comment made by a prosecutor or a trial judge. It is state-induced error. See Caldwell, 105 S.Ct. at 1640. Caldwell is not implicated by a defense attorney’s misleading comments about the death penally any more than, for example, the fifth amendment is implicated by a defense attorney’s comment on his client’s failure to testify. Caldwell reflects the intuition that jurors pay special heed to comments made by the judge and prosecutor because those persons represent the authority of the state. A defense attorney does not occupy the same position, and inappropriate comments made by defense counsel implicate different constitutional concerns.
If the only misleading comments in this case had been made by the defense attorney, I would concur in the decision to affirm the district court. The majority’s opinion states, however, that “[djefense counsel ... did not object to similar comments made by the prosecutor and the trial judge.” At 3507.3 An examination of the record reveals that the prosecutor and trial judge violated Caldwell by misleading the jury. At voir dire, the trial court stated:
In the event, if and only if there is a conviction for the crime of first degree murder, then there is a subsequent hearing or second trial as to which the jury is *1498asked, that is, to say the same jury which has already determined the guilt or innocence of the defendant, to recommend and [it] is only a recommendation, to the Court, that is, to me, the Judge, what sentence should be imposed to the crime of first degree murder.
In the second so called trial, a majority vote of the jurors recommends, and again I repeat [it] is only a recommendation to this Court, whether the sentence for the defendant should be death or life imprisonment without possibility for parole for twenty-five years.
Tr. 111.4 Later during voir dire, prosecuting attorney Stelzer stated:
The State in this case is asking for the death penalty. I will make no bones about it whatsoever. We are seeking ... a recommendation, because you don’t have the right in Florida to pass sentence on anybody.
Tr. 201;5 see also Tr. 206. Still later during voir dire, prosecutor Godwin asked the array:
Do you understand that your recommendation which would be a recommendation of a majority of the jury, that the Court could accept the recommendation or reject the recommendation.
Tr. 392.6 The judge continued to inform the jury that its verdict on the death sentence would not be binding:
The second trial, unlike the first, which must be a unanimous vote, the jurorsf] vote must be only a majority as to the recommendation, and it is only a recommendation to the Court, whether the sentence should be death or life imprisonment without possibility for parole for twenty-five years.
Tr. 476.7 Finally, prosecutor Stelzer told a group of prospective alternate jurors:
Do you understand that your recommendation does not have to be followed by [the judge]. It is all that twelve people out here could recommend to [the judge] that the proper sentence would be life imprisonment and she could still impose the death penalty or vice versa.
Tr. 565.8
The court repeated the Caldwell error several times at the sentencing hearing, when it told the jury:
Final decision as to what punishment shall be imposed rests solely with the judge of this court, that is, upon me; however, the law requires that you, the jury, render to the Court an advisory sentence as to what punishment should be imposed upon the defendant.
As you have been told, the final decision as to what punishment should be imposed is a responsibility of the trial judge; however, it is your duty to follow the law which will now be given you by the Court and render to the Court an advisory sentence based upon the aggravating circumstances which you find to exist.
Tr. 2275-76; see also Tr. 2442. The prosecutor stated in his closing argument:
The purpose is not to have you sentence anybody to anything. In all due respect to you all, you don’t have that right. That is reserved to the right of one person. It is not me or Mr. Gold-stein. It is Judge Lenore Nesbitt. She needs guidance, and that is what you are here for, to tell her — after seeing the laws of Florida, — if, whether under the laws of the State of Florida after being represented to you, this is the type of case that calls for a recommendation of capital punishment.
*1499If so, your advisory sentence — and it is only advisory — because if Judge Nesbitt thinks that you are wrong, she does not have to follow it. If she thinks you are wrong in imposing a sentence of death —if you recommend a sentence of capital punishment — she can overrule you and put a punishment of life imprisonment.
Tr. 2394-95. These excerpts convince me that the court and the prosecutor misinformed the jurors about their role in sentencing. The jurors were told that their decision was “merely” a recommendation, not at all binding on the judge. They were never told that Florida law requires the trial judge to give great weight to the jury’s recommendation or even, as in Harich v. Dugger, 844 F.2d 1464 (11th Cir.1988) (en banc), that the jury’s sentencing verdict would be “very vital” to the outcome of the sentencing decision and would “giv[e] some direction” to the court. See id., Opinion of Tjoflat, J., at 1475. Under Caldwell and under our decisions in Adams, Mann, and Harich, Stewart should be resentenced.
. 804 F.2d 1526 (11th Cir.1986), modified, 816 F.2d 1493 (11th Cir.1987), cert. granted, — U.S. —, 108 S.Ct. 1106, 99 L.Ed.2d 267 (1988).
. The majority also does not consider that Caldwell error can influence those jurors who do not express opposition to capital punishment during voir dire. A juror may have every intention of following the legislature’s judgment about the propriety of capital punishment but may feel that, on the facts of a particular case, the question of whether capital punishment is warranted is vety close. There is a very real danger that such a juror would be influenced to vote for death instead of life if he believes that the jury’s decision is merely advisory. "Even when a sentencing jury is unconvinced that death is the appropriate punishment, it might nevertheless wish to ‘send a message’ of extreme disapproval for the defendant’s acts. This desire might make the jury very receptive to [assurances] that it can more freely” err because the error will be corrected elsewhere. Caldwell, 105 S.Ct. at 2641.
. The defense attorney’s failure to object does not prevent us from reaching the merits of Stewart’s Caldwell claim under principles of procedural bar. The Caldwell claim was not "reasonably available” at the time of Stewart’s trial in April 1979. See Adams v. Dugger, 816 F.2d at 1500.
. Jurors Salapatas, Capote, Thibodeau, and Lin-demann were present when the judge made these remarks. Tr. 112, 471.
. At least one prospective juror who actually served, Salapatas, was present at this point. Tr. 201, 471.
. Juror Johnson was present at this point. Tr. 392, 471.
. Juror Gailey was present when the judge made these remarks. Tr. 509.
. Two of the prospective alternates present, Martell and Hernandez, were chosen to serve.