This appeal involves the denial of a petition for writ of habeas corpus made by a Georgia state inmate under sentence of death. Petitioner John Eldon Smith, a/k/a Anthony Isalldo Machetti, was convicted on two counts of murder in the Superior Court of Bibb County, Georgia and on January 30, 1975 was sentenced to die.1 The Georgia Supreme Court affirmed both his conviction and sentence, Smith v. State, 236 Ga. 12, 222 S.E.2d 308, cert. denied, 428 U.S. 910, 96 S. Ct. 3224, 49 L. Ed. 2d 1219 (1976), and the United States Supreme Court denied certiorari. Smith v. Georgia, 428 U.S. 910, 96 S. Ct. 3224, 49 L. Ed. 2d 1219 (1976). Smith then unsuccessfully petitioned for a writ of habeas corpus in state court, the Georgia Supreme Court affirmed the denial of relief, Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977), cert. denied, 436 U.S. 950, 98 S. Ct. 2859, 56 L. Ed. 2d 793 (1978), and again the United States Supreme Court denied certiorari. Smith v. Hopper, 436 U.S. 950, 98 S. Ct. 2859, 56 L. Ed. 2d 793 (1978).

Having exhausted his state court remedies, Smith sought a writ of habeas corpus in the United States District Court for the Middle District of Georgia under 28 U.S.C. § 2254. The district judge referred Smith's case to a magistrate, whose proposed findings of fact and conclusions of law were adopted as the opinion of the court. Accordingly, on November 26, 1980, the district court denied the request for a writ. Smith now appeals from that denial. For the reasons set forth below, we affirm the dismissal of Smith's petition.

On appeal Smith raises three main issues. First, he contends that the exclusion from the jury, for cause, of two veniremen who were unequivocally opposed to the death penalty violated his rights under the sixth and fourteenth amendments in three distinct respects: (1) exclusion of these veniremen resulted in a jury that was conviction prone and thus less than neutral on the issue of guilt, in violation of his right to trial by an impartial jury; (2) their exclusion violated his right to trial by a jury chosen from a fair cross-section of the community; and (3) the cumulative effect of such death qualification of jurors infringed his sixth amendment interest in a properly functioning jury. Second, Smith urges that his death sentence was imposed pursuant to an arbitrary and racially discriminatory pattern of capital sentencing in Georgia. Finally, he challenges the constitutional adequacy of Georgia's capital sentencing review procedures.2

During voir dire examination of the jury venire from which the jury that convicted Smith was selected, two persons unambiguously expressed their opposition to the death penalty, indicating that they would automatically vote against imposition of that penalty without regard to evidence presented in the case.3 These veniremen were excused for cause in accordance with the practice approved by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968).4

Smith contends that the exclusion for cause of these veniremen violated his right under the sixth and fourteenth amendments to an impartial jury.5 He asserts an argument considered but rejected by the Supreme Court in Witherspoon namely that those veniremen who remain on the jury after the exclusion of those unalterably opposed to the death penalty are more conviction prone than the ones excluded under the "death qualifying"6 procedure. While Smith does not challenge the exclusion of these unalterably death-opposed veniremen from the panel that determines the penalty to be imposed, he asserts that their being excluded from the guilt determination stage7 results in the creation of an unconstitutionally conviction-biased jury. In support of his contention, Smith offers a plethora of studies, some of which were before the Court in Witherspoon.8

In rejecting this constitutional objection in Witherspoon,9 the Supreme Court stated:

The data adduced by the petitioner ... are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.

391 U.S. at 517-18, 88 S. Ct. at 1774-75 (footnote omitted). However, the Court did not foreclose a defendant, having more persuasive evidence of juror tendencies, from asserting the guilt proneness of death-qualified jurors in a subsequent case. Some of the issues that would then arise were suggested.

Even so, a defendant convicted by such a jury in some future case might still attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment.

Id. at 520 n.18, 88 S. Ct. at 1776. Seizing this invitation, Smith argues that the studies he has offered provide the requisite degree of proof.10

We assume without deciding that Smith's evidence does indeed supply the persuasiveness found lacking by the Supreme Court and by many other courts, both federal and state, since Witherspoon.11 Nevertheless, for reasons to be discussed, we hold that the exclusion for cause from Smith's jury of veniremen so unequivocally opposed to the death penalty that they would not follow the law on the subject did not deny his constitutional right to an impartial jury.

In Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), this court rejected the precise contention now urged by Smith.12 Today we reaffirm the rationale set forth in Spinkellink.

That a death-qualified jury is more likely to convict than a nondeath-qualified jury does not demonstrate which jury is impartial. It indicates only that a death-qualified jury might favor the prosecution and that a nondeath-qualified jury might favor the defendant.

All veniremen are potentially biased. The process of voir dire is designed to cull from the venire persons who demonstrate that they cannot be fair to either side of the case. Clearly, the extremes must be eliminated i. e., those who, in spite of the evidence, would automatically vote to convict or impose the death penalty or automatically vote to acquit or impose a life sentence. The guarantee of impartiality cannot mean that the state has a right to present its case to the jury most likely to return a verdict of guilt, nor can it mean that the accused has a right to present his case to the jury most likely to acquit. But the converse is also true. The guarantee cannot mean that the state must present its case to the jury least likely to convict or impose the death penalty, nor that the defense must present its case to the jury least likely to find him innocent or vote for life imprisonment. Yet Smith here urges that he has a constitutional right to a jury more likely than a death-qualified jury to find him innocent.

In essence, Smith urges us to define "impartial" as a middle ground that involves a jury with persons who are in effect defendant prone.14 The logical converse of the proposition that death-qualified jurors are conviction prone is that nondeath-qualified jurors are acquittal prone, not that they are neutral. Smith offers no proof that inclusion of veniremen currently excludable under Witherspoon will not tip the balance in the guilt/innocence determination in favor of the accused.15 The state as well as the accused enjoys a right to an impartial jury. See Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S. Ct. 350, 351, 30 L. Ed. 578 (1887); Williams v. Wainwright, 427 F.2d 921, 923 (5th Cir. 1970), modified, 408 U.S. 941, 92 S. Ct. 2864, 33 L. Ed. 2d 765 (1972). Such a tilt of the scales of justice would violate that right. As recognized in Spinkellink, the danger of a defendant prone jury is too great to accede to Smith's claim.

The state has decided that the parties' right under the Sixth and Fourteenth Amendments to an impartial jury and the state's interest in the just and even-handed application of its laws, including (the state's) death penalty, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen. The Constitution does not prohibit this judgment.

While we reject Smith's argument that conviction by a death-qualified jury violates his right to an impartial jury, we are fully cognizant that, with regard to the guarantee of impartiality, there are strong competing interests on both sides. As the Supreme Court indicated in dicta in Witherspoon, the question is one of accommodation. The Court stated that, even if a defendant proved that the jury which convicted him was less than neutral,17 the issue would then become "whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence." Witherspoon v. Illinois, 391 U.S. at 520 n.18, 88 S. Ct. at 1776. Thus the Court characterizes the dilemma as a problem of remedy and invites consideration of a remedy which, while accommodating the state's interest in submitting the penalty issue to a jury capable of voting for death may be less restrictive of the defendant's interests than is the current scheme.

With this "less restrictive alternative" approach in mind, the Supreme Court suggested,18 and petitioner Smith urged at oral argument, the use of a bifurcated trial, with one jury to determine guilt and another to fix punishment.19 This court is not persuaded, however, that this procedure would in fact be less restrictive of the capital defendant's interests.20 Indeed our fear is that, were we to sanction such a remedy as an appropriate balance of constitutional rights, we would deprive the capital defendant of important benefits which the current system affords him.21

As capital trials are currently conducted in Georgia, the same jury sits at both the guilt and penalty phase.22 There is a potential benefit to a defendant inherent in such a procedure which would be lost were the jury which found guilt discharged and a new jury empanelled to decide punishment. We cannot point to any empirical data in this record demonstrating such a benefit, but we ought not ignore reality.

The fact that jurors have determined guilt beyond a reasonable doubt does not necessarily mean that no juror entertained any doubt whatsoever. There may be no reasonable doubt doubt based upon reason and yet some genuine doubt exists. It may reflect a mere possibility; it may be but the whimsy of one juror or several. Yet this whimsical doubt this absence of absolute certainty can be real.

The capital defendant whose guilt seems abundantly demonstrated may be neither obstructing justice nor engaged in an exercise in futility when his counsel mounts a vigorous defense on the merits. It may be proffered in the slight hope of unanticipated success; it might seek to persuade one or more to prevent unanimity for conviction; it is more likely to produce only whimsical doubt. Even the latter serves the defendant, for the juror entertaining doubt which does not rise to reasonable doubt can be expected to resist those who would impose the irremedial penalty of death.

Under Georgia's present procedure, such a juror would sit to decide punishment. The right to have that juror or those jurors , entertaining whimsical doubt, on the penalty jury is of undoubted value to the defendant.

The scheme appellant here urges upon us would effectively destroy the whimsical doubt. The guilt-determining jurors including those not absolutely certain would be thanked for their service and discharged. A new jury, including only those willing to impose the death penalty, would be selected. They would entertain no doubt that the defendant before them was, indeed, the guilty party. Presumably they would be instructed that the defendant was the guilty party. They would hear only evidence of aggravating circumstances surrounding the commission of the crime and mitigation if there be evidence of such. Not even a flimsy alibi would disturb their deliberations; no suggestion of misidentification would be material. Certainty of guilt would replace any whimsical doubt entertained by the discharged jurors. Some may conclude that the destruction of the whimsical doubt, sought here by appellant, would involve a more serious deprivation of the benefits of the constitutionally guaranteed jury trial than envisioned by Smith's advocates in this appeal.23 In short, Smith has not persuaded us that the remedy he has suggested is a better accommodation of the state's and the defendant's interests than is the present system.24

That there is no record in this case evaluating the impact of the two-jury system upon important interests of the defendant further illustrates the shortcomings of appellant's case. A compilation of data from experience or experiment might show the relative likelihood of the imposition of the death penalty by jurors directed to accept the guilt of defendant and by jurors who have heard and considered defendants' attacks upon prosecutors' fact cases. Absent such data, mere proof of the coincidence of exclusions for cause and elimination of tendencies of excused veniremen is but a fragment of the whole picture.

What we have written here is not based upon a review of the record in this case. We merely presume to some understanding of the place of a jury in our system for the administration of justice. That role is, in the end, "the interposition between the accused and his accuser of the commonsense judgment of a group of laymen" spoken of in Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 1905, 26 L. Ed. 2d 446 (1970).

C. Right to a Jury Chosen from a Fair Cross-Section of the Community

Smith also argues that the exclusion for cause of veniremen opposed to the death penalty infringed his right under the sixth and fourteenth amendments to a jury which is representative of the community. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 701, 42 L. Ed. 2d 690 (1975), clearly establishes that the "venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." In reliance on Taylor, Smith urges that death-opposed jurors comprise a distinctive group whose systematic exclusion violates the sixth amendment. Although the fair cross-section requirement does not mean that the jury actually chosen must mirror the community and reflect the various distinctive groups in the population, id.,25 the Supreme Court's opinions concerning the jury trial guarantee do intimate that this sixth amendment right comprehends a fair possibility for obtaining a jury which is representative of the community. See Peters v. Kiff, 407 U.S. 493, 500, 92 S. Ct. 2163, 2167, 33 L. Ed. 2d 83 (1972); Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 1905, 26 L. Ed. 2d 466 (1970). The exclusion of veniremen unalterably opposed to the death penalty undoubtedly reduces the possibility of obtaining a jury which represents a true cross-section of the community. Any elimination of prospective jurors who are disqualified potentially impairs the achievement of a true cross-section on the particular jury. Nevertheless it must be remembered that a jury which reflects a fair cross-section of the community is a goal that is never to be achieved at the cost of leaving on the jury those veniremen who are legitimately disqualified. As the Supreme Court has observed, "The fair cross section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury list or panels are representative of the community." 419 U.S. at 537-38, 95 S.Ct. at 701.

One would not suppose, for example, that defendant Jones who was on trial for murder in Jones County, 85% of which is populated by members of the Jones family, is entitled to a jury on which members of the Jones family serve, even though a jury from which Jones family members are excluded would not reflect a fair cross-section of the community. Thus, relationship to the defendant is a legitimate disqualification even though, in our hypothetical, such exclusion negates any possibility of obtaining a jury which is representative of the particular community. Likewise, unalterable opposition to capital punishment is a legitimate disqualification even though it reduces the possibility of achieving a true cross-section on the particular jury. As stated by the Supreme Court, even if the defendant establishes a prima facie violation of the fair cross-section requirement,26 the state may justify the infringement by proof of "a significant State interest (which is) manifestly and primarily advanced by those aspects of the jury-selection process, such as exemption criteria, that result in the disproportionate exclusion of the distinctive group." Duren v. Missouri, 439 U.S. 357, 367-68, 99 S. Ct. 664, 670, 58 L. Ed. 2d 579 (1979) (footnote omitted). "(T)he parties' right under the sixth and fourteenth amendments to an impartial jury and the state's interest in the just and evenhanded application of its laws" supply the necessary justification. Spinkellink v. Wainwright, 578 F.2d 582, 597 (5th Cir. 1978). For these reasons, we hold that unalterable opposition to the death penalty is a legitimate disqualification and that the exclusion of such disqualified jurors does not violate the fair cross-section principle of the sixth amendment. The fair cross-section must, in the end, be fair. Neither the state nor the defendant is entitled to an unfair juror whose interests, biases or prejudices will determine his or her resolution of the issues regardless of the law and regardless of the facts. A cross-section of the fair and impartial is more desirable than a fair cross-section of the prejudiced and biased.

Relying on Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978), Smith argues that the process of death qualification has the same damaging effects condemned as a violation of sixth and fourteenth amendment interests in Ballew. In that case the Supreme Court concluded that a state criminal trial to a jury of only five persons deprived the accused of the jury trial right guaranteed by the sixth and fourteenth amendments. The Court's conclusion rested on empirical evidence suggesting that the smaller size of the jury had detrimental effects on group deliberation, on the accuracy and consistency of results, and on the representation of minority viewpoints in jury decisionmaking. Id. at 232-38, 98 S.Ct. at 1035-38. By analogy Smith contends that death qualification is unconstitutional because it limits the attitudinal perspectives represented on the jury, thereby inhibiting the counterbalancing of biases during the deliberative process,27 and excludes a significant minority viewpoint.28

Smith's analogy to Ballew is inappropriate. The Supreme Court's concern in Ballew focused on the effect of size on the proper functioning of the jury. The Court's task was that of simply drawing a line, of setting a constitutional minimum for the size of juries in nonpetty criminal cases. See Ballew v. Georgia, 435 U.S. at 245-46, 98 S.Ct. at 1041-42. (Powell, J., concurring) ("(T)he line between five- and six-member juries is difficult to justify, but a line has to be drawn somewhere if the substance of jury trial is to be preserved."). Thus the Court limited its focus to this question. It did not purport to establish, as Smith would have us accept, a sweeping constitutional rule stating that factors which, considered individually, do not infringe an accused's sixth and fourteenth amendment rights may effect, when viewed in the aggregate, a violation of those rights. The Court in Ballew was not inviting defendants to allege as many "negative" factors as possible with the hope of reaching the threshold level for a sixth amendment violation. Moreover, the analogy to Ballew is faulty because Smith is concerned with the particular attitudinal composition of the jury and seeks to require the inclusion of a particular viewpoint i.e., the view of those irrevocably opposed to the death penalty on any jury that determines his guilt or innocence. So phrased, Smith's argument manifests itself as simply another way of claiming that the jury which convicted him was not fairly representative of the community. We have considered and rejected this claim above.29

Having examined each aspect of Smith's constitutional attack on the exclusion of veniremen irrevocably opposed to the death penalty, we conclude that Smith's jury was constitutionally composed. We are not prepared to nullify Witherspoon by holding that the death qualification process approved therein violates the defendant's rights under the sixth and fourteenth amendments.

II. ARBITRARY & CAPRICIOUS IMPOSITION OF DEATH PENALTY

Smith next contends that his sentence was imposed pursuant to a pattern and practice of wholly arbitrary and capricious infliction of the Georgia death penalty in violation of the eighth and fourteenth amendments. The district court properly found Spinkellink controlling on this issue.30

In Spinkellink this court observed "that if a state follows a properly drawn statute in imposing the death penalty, then the arbitrariness and capriciousness and therefore the racial discrimination condemned in Furman (Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346) have been conclusively removed." Spinkellink v. Wainwright, 578 F.2d 582, 613-14 (5th Cir. 1978) (footnotes omitted). Smith construes Spinkellink as precluding constitutional challenges to the application of a death penalty statute and argues that Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980),31 overrules Spinkellink on this point. Spinkellink, however, effected no such broad prohibition. It merely established that in the absence of proof of "some specific act or acts evidencing intentional or purposeful ... discrimination against (the petitioner) " on the basis of race, sex, or wealth, a petitioner is not entitled to relief on habeas corpus. 578 F.2d at 614 n.40 (emphasis added).32 As in Spinkellink, we find Smith's claim brimming with "(m)ere conclusory allegations" of discrimination, id., and wanting in proof of intentional discrimination against him in this particular case.

The equal protection aspect of Smith's attack on the constitutionality of the application of Georgia's death penalty suffers from a similar deficiency. Smith has adduced evidence that "racial factors (are) evident in Georgia capital sentencing patterns." Brief for Petitioner-Appellant at 40. Even if this evidence were sufficient to prove a racially disproportionate impact and we do not decide that it is such evidence alone cannot establish an equal protection violation. To trigger strict scrutiny of a statute, proof of intentional or purposeful discrimination is necessary. Washington v. Davis, 426 U.S. 229, 265, 96 S. Ct. 2040, 2059, 48 L. Ed. 2d 597 (1976); Spinkellink v. Wainwright, 578 F.2d 582, 615 (5th Cir. 1978). Without such proof,33 any discriminatory impact may be explained on nonracial grounds. Spinkellink v. Wainwright, 578 F.2d at 615. As we have already observed, the state has a legitimate interest in prescribing relevant qualifications for jurors to protect against jurors with pro-defendant biases. Having failed to prove a racially discriminatory intent or purpose in the application of Georgia's death penalty, Smith has not established a violation of the equal protection clause of the fourteenth amendment.

III. GEORGIA'S CAPITAL SENTENCING REVIEW PROCEDURES

Smith's final complaint centers on the constitutional adequacy of Georgia's capital sentencing review procedures. On review of a case in which the death penalty is imposed, the Georgia Supreme Court is charged with determining:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and

(2) Whether ... the evidence supports the jury's ... finding of a statutory aggravating circumstance ..., and

(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Ga.Code Ann. § 27-2537(c) (1978). Georgia's statutory scheme for the imposition of the death penalty, including this provision for expedited appellate review by the Georgia Supreme Court, was held to be constitutional on its face by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (opinion of Stewart, Powell & Stevens, JJ.). Smith contends that the approval in Gregg was conditioned on the Court's assumption about the procedural protections afforded by appellate review and that this assumption has proven to be unfounded. In support of this claim, he relies on a study purporting to show that the methods used by the Georgia Supreme Court to evaluate excessiveness and disproportionality are scientifically unsound and have exaggerated, not reduced, the racial and geographic disparities present in capital sentencing. We cannot conclude, as the district court apparently could not,34 on the basis of this evidence that the Georgia Supreme Court is "incapable of performing its task adequately in all cases." Gregg v. Georgia, 428 U.S. 153, 224, 96 S. Ct. 2909, 2949, 49 L. Ed. 2d 859 (White, J., concurring). Nor has Smith "even attempted to establish that the Georgia Supreme Court failed properly to perform its task in this case." Id. (emphasis added).

To the contrary, the Georgia Supreme Court followed the statutory mandate imposed by § 27-2537(c). It determined that the sentence was not imposed under the influence of passion, prejudice, or other arbitrary factors and, after carefully reviewing the evidence, concluded that the evidence supported the jury's finding that Smith committed the murders for the purpose of receiving money or other things of monetary value, the statutory aggravating circumstance set forth in § 27-2534.1(b)(4). Smith v. State, 236 Ga. 12, 24, 222 S.E.2d 308, 317-18, cert. denied, 428 U.S. 910, 96 S. Ct. 3224, 49 L. Ed. 2d 1219 (1976). As part of its comparative sentence review, the court also found that the sentence of death in this case was not excessive or disproportionate to the penalties in similar cases, expressly noting the pattern it discerned in the imposition of the death penalty in multiple murder cases. Id. at 24-25, 222 S.E.2d at 318. We therefore reject Smith's contention that Georgia's appellate review procedure in capital cases is constitutionally defective and that it operated ineffectively in this case.

AFFIRMED.