c10:No. 85-5454

Justice Powell,
concurring in part and concurring in the judgment.
In Davis v. Georgia, 429 U. S. 122 (1976) (per curiam), we held that if a single venire member is erroneously excluded for cause because of his views on the death penalty, a subsequently imposed capital sentence is invalid. The facts of this case show that Mrs. Bounds, although at times confused by the inartful voir dire questioning, finally stated explicitly that she would carry out her duty as a juror. Cf. Wainwright v. Witt, 469 U. S. 412, 424 (1985) (juror not excludable for cause unless his views would “ ‘prevent or substantially impair the performance of his duties as a juror’” (quoting Adams v. Texas, 448 U. S. 38, 45 (1980))). Given Mrs. Bounds’ willingness to impose a capital sentence in an appropriate case, I agree that the trial court erred in removing her for cause. We therefore are presented with the precise issue addressed in Davis.
I joined the per curiam opinion in Davis, and continue to believe that an improper exclusion of a juror in a capital case on these grounds should not be subject to a harmless-error analysis. The facts before us illustrate why a harmless-error analysis is inappropriate. Justice Scalia’s dissent concludes that the exclusion of Mrs. Bounds had no effect on the composition of the jury because the prosecutor should have been- allowed to exclude her peremptorily. The dissent points out that the prosecutor was required to exhaust his peremptory challenges because the trial judge erroneously refused to exclude other jurors for cause, despite their unequivocal opposition to the death penalty. Post, at 673. I agree that a number of these earlier jurors should have been excused. Nevertheless, I cannot assume that the prosecutor would have excluded Mrs. Bounds “but for” these mistakes. As the Court notes, it is difficult on appeal to reconstruct the prosecutor’s voir dire strategy, and to predict who would have been excluded had the facts been different. If the prosecutor had not been compelled to use his challenges on other jurors, he certainly may have excluded Bounds. It also is possible, however, that the prosecutor would have saved his challenges on the chance that a more objectionable juror would come along, or perhaps he would have excluded an earlier juror on other grounds. Given our requirement of enhanced reliability in capital cases, I would hesitate to conclude that the composition of the venire “definitely” would have been the same, based solely on speculation as to how the prosecutor might have acted. I therefore join in the judgment, and generally in the opinion except for Part III-B-2.
I disagree with the plurality to the extent that its decision rests on “real-world factors” such as the prosecutor’s use of peremptory challenges. The plurality notes that Davis involved the exclusion of a single qualified venire member. Ante, at 667. The state court in Davis found no error because the exclusion was an isolated incident, a conclusion that this Court expressly rejected. See 429 U. S., at 123. In my view, our decision in Davis is sufficient to resolve the case, given that we cannot know what effect the excluded juror would have had on the panel as a whole. For unexplained reasons, however, the plurality seeks to distinguish Davis by pointing out that here the State “exercised its peremptory challenges to remove all venire members who expressed any degree of hesitation against the death penalty.” Ante, at 667 (footnote omitted). I do not see the relevance of this observation. The plurality surely is not suggesting that this case would have come out differently if the prosecutor had not removed other jurors because of their attitude about capital punishment. Such a conclusion would restrict Davis rather than reaffirm it. Presumably, then, the plurality simply is expressing disapproval of the prosecutor’s exclusion of jurors who could not be removed for cause.
There can be no dispute that a prosecutor has the right, indeed the duty, to use all legal and ethical means to obtain a conviction, including the right to remove peremptorily jurors whom he believes may not be willing to impose lawful punishment. Of course, defense counsel has the same right and duty to remove jurors he believes may be prosecution oriented. This Court’s precedents do not suggest that the Witherspoon line of cases restricts the traditional rights of prosecutors and defense counsel to exercise their peremptory challenges in this manner. I therefore cannot agree that the prejudice created by Mrs. Bounds’ removal was exacerbated by the proper exclusion of other jurors who may have shared her views.
The plurality acknowledges that judges normally may not inquire into the prosecutor’s use of these challenges. Ante, at 667, n. 18. This Court has recognized one exception to that rule, when the defendant has established a prima facie case of racial bias in the selection of a particular venire. See Batson v. Kentucky, 476 U. S. 79 (1986). Our decision in Batson, however, was justified by the compelling need to remove all vestiges of invidious racial discrimination in the selection of jurors, a concern that obviously is not implicated on these facts. Nothing in Batson suggests that courts may examine the prosecutor’s motives whenever he has excluded peremptorily those whom the court may not remove for cause. See Brown v. North Carolina, 479 U. S. 940 (1986) (O’Connor, J., concurring in denial of certiorari). Because the improper exclusion of even a single juror is sufficient to require resentencing in a capital case, and because the prosecutor is free to exclude panel members who express doubt as to whether they could vote to impose capital punishment, I would attach no significance to the peremptory exclusion of the other jurors.
I join in the Court’s judgment and in the opinion except for Part III-B-2.
As the dissent states, several of the potential jurors who were challenged unsuccessfully for cause explicitly stated that they would not impose the death sentence in any circumstance. See, e. g., App. 3 (juror Ruiz would not impose the death sentence in “[a]ny type case”); id., at 6 (juror Coker “would never vote for [capital punishment] in any case”).
Justice Scalia’s dissent takes a somewhat different approach in arguing that the error in this case was harmless. He asserts that the above analysis misses the point, because it improperly focuses on the trial judge’s failure to excuse the earlier jurors for cause, rather than on the judge’s failure to revise these earlier rulings and permit the prosecutor to exercise another peremptory challenge. Post, at 678-679, n. 4. I agree with the dissent about which of the trial judge’s rulings caused the harm; I simply disagree as to what inferences properly may be drawn in light of the error. There is no dispute that the ruling that prejudiced petitioner was the improper removal of Mrs. Bounds. Thus the only question is whether there is a reasonable doubt that the composition of the venire would have been different as a result. The dissent is convinced that the panel would not have changed, because if the judge had not excused Bounds for cause, he nevertheless would have reversed his earlier rulings and “returned” at least one of the State’s peremptory challenges. I do not think the record supports such an inference. The trial judge was aware that he may have erred in not excusing the earlier panel members for cause, and was asked specifically to change some of these decisions. Although this procedure apparently is permitted under state law, and although the judge was plainly aware that the exeusal of Bounds created a disputed question under the Witherspoon line of cases, the judge refused to change his rulings. See App. 26. I therefore am unpersuaded that but for the Witherspoon error, the prosecutor both could and would have removed Mrs. Bounds from the panel.
It is irrelevant, of course, that the trial judge had the authority to remove Bounds for permissible reasons. In order for the error to be harmless, it must be shown that on the facts of this ease, she definitely would have been removed, and thus that the venire would have been the same in the absence of the erroneous excusal for cause.
The decision today has no bearing on the validity of petitioner’s conviction, only on the sentence. See Witherspoon v. Illinois, 391 U. S. 521, 523, n. 21 (1968).

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