¶1dissenting.
¶2The record is clear that four of the complained of excluded venirepersons voiced general approval of the death penalty as a punishment for crime, and did not conscientiously oppose it. Each one said he could answer the three punishment questions based upon the evidence, and each said that he would, if shown a proper case, answer all three questions in the affirmative, even knowing that the sentence of death would result from his answers. Thus, the prospective venirepersons were qualified to sit as jurors in this cause. Instead, they were held to be disqualified. Given the above, one must immediately ask, “What caused their disqualification?”
¶3Well, it seems that not only the prosecuting attorney but the trial judge as well gave each of them erroneous legal advice, telling them that they could not legally or morally take the oath to serve on the jury unless they could also swear that in answering the three punishment questions they would set aside their emotions and feelings and in some unexplained, rigid, mechanical, or automatic fashion arrive at their answers. This is not the law. To the contrary, but as appellant’s counsel has put it, “the human element is not only an integral part of the jury’s role — to evaluate witnesses, testimony, and evidence in the light of human experience — but it is a constitutional prerequisite to the carrying out of a death penalty ...; totally dispassionate procedures that lead to the imposition of a death sentence are intolerable.”
¶4Because of the erroneous advice that the prosecuting attorney and the trial judge gave the excluded jurors, their exclusion was based upon broader grounds than permitted by our law. They were thus improperly excluded.
¶5I find that appellant’s counsel correctly puts the issue in focus when he states the following:
The difficulty inherent in the disqualification scenario [that the majority opinion sets out in part] under attack in this case begins with the prosecutor’s three step approach involving abstaining, and is compounded by his improper characterization of the jury’s role as automatons devoid of feelings and emotions. Each juror was told seriatim: (1) as a juror, you can vote yes, no, or abstain on the punishment issues; (2) if you face the possible intellectual/emotional dilemma, you should abstain so as to avoid violating your oath as a juror and, on the other hand, your conscience; (3) if the possibility exists that you might abstain when confronted with the dilemma, you cannot take the oath because abstention runs afoul of the oath’s mandate that you render a verdict based on the evidence and the law. Clearly, propositions (1) and (3) cannot coexist. Either the oath and abstention are compatible, as posited in (1), or they are incompatible, as *751presented in (3). It is irrelevant which of the two propositions is legally sound; all that matters is that they both are accurate statements of the law. Through the use of these steps jurors were either misled into believing they could, in a proper case, abstain from voting on the punishment issue, which unalterably led to a ‘Catch 22’ conclusion that they could not both take the oath and abstain; or, if proposition (1) be correct, they were trapped by the fallacy of proposition (3) when they voiced an opinion that they might exercise their rights under proposition (1). In either event, there was no escape for those prospective jurors who believed the prosecutor’s assertion that they could abstain. They were trapped in a maze with no exits.
The issue is not whether the prospective jurors were properly excluded because they said they could not take the oath. Rather, it is whether they were excluded because they could not be trusted to abide by the applicable law and to follow conscientiously the instructions of the trial court ... Each one of them said he could and would base his punishment verdict [sic] on the evidence. Each of them expressed an open mind with regard to capital punishment, and an ability to participate in proceedings that involved the imposition of the death penalty. Excluding them because they would not commit themselves, prior to trial, to set aside their general emotions and feelings when deliberating their punishment verdict [sic] can no more be countenanced than the excusing of the prospective jurors in Adams. Absent any probing of the jurors’ concept of ‘emotional decision,’ as contemplated by Adams and Burns v. Estelle, no Wither-spoon-approved basis for exclusion of the [four] prospective jurors can be established.
¶6The majority opinion incorrectly holds, for the reasons stated, that the four venire-persons, of which complaint is made, were properly excluded from serving as jurors in this cause. I dissent.