(concurring) .
I disagree with the majority opinion’s application of Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970).
The major question presented on the grand jury issue is whether the rule that a black criminal defendant is entitled to have his indictment quashed, regardless of prejudice, if the grand jury venire selection system discriminates against blacks should be extended to a situation in which there has been systematic discrimination only with respect to one member of the grand jury venire —the grand jury foreman pro tempore. The majority opinion does not specifically discuss this issue. Instead, it rules that the issues are governed by the Supreme Court decision in Carter v. Jury Commission of Greene County. I disagree that Carter is relevant and binding for two reasons.
First, the language quoted from Carter in the majority opinion, which states that the facts presented regarding discrimination in the jury commission were insufficient to warrant a prima facie finding of discrimination, is not dispositive of the facts in this case. In general, a showing that the percentage of blacks selected over a period of time varied significantly from the percentage of blacks in the population and that the selection system is amenable to discrimination is sufficient to warrant a prima facie finding of discrimination. Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Eubanks v. Louisiana, 356 U.S. 584, 587, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Neal v. Delaware, 103 U.S. 370, 397, 26 L.Ed. 567 (1881). Even in Carter, in a portion not quoted in the majority opinion, the Supreme Court cited as “compelling” evidence of discrimination the fact that the number of blacks on the jury rolls never exceeded 7 per cent while the county population was 15 per cent black — in spite of the lack of evidence of discriminatory intent on the part of those officials selecting the venire. Carter, supra at 327, 337, of 396 U.S., 90 S.Ct. 518. That portion of Carter quoted in the majority opinion is inapposite, since it merely indicates that the Court did not find the statistics regarding the jury commission of three persons as compelling as those for the larger number of persons on the venire. Id. 338, 90 S.Ct. 518.
Under the rationale developed in these cases, the evidence clearly warranted a prima facie finding of discrimination in the selection of the grand jury foreman pro tempore. The evidence showed that in the history of the county none of the 150 foremen and foremen pro tempore had been black while the county population was from 25 to 37 per cent black and further that the criminal trial judge who had the discretion with, respect to the appointment of foremen and foremen pro tempore knew only a few blacks. It is difficult to imagine what more the majority would require to warrant a prima facie finding of discrimination except a confession on the part of the state judges that they were prejudiced against blacks and had intentionally avoided appointing them as grand jury foremen pro tempore.
Second, I believe the language quoted from Carter regarding proportional representation is not relevant here. While Carter was brought by black residents seeking representation on the grand *272jury and grand jury commission, this case was brought by a criminal defendant seeking to have his indictment quashed. The relief sought in Carter, that of proportional representation, was denied by the Supreme Court. However, the relief sought here is not proportional representation but rather the quashing of an indictment because of systematic exclusion of blacks from the position of grand jury foreman pro tempore. With respect to this relief, the issue of proportional representation is irrelevant.
With respect to the major question presented, I would not require a quashing of the indictment because of discrimination in the selection of the grand jury foreman pro tempore. The remedy of quashing the indictment without a showing of prejudice was one adopted by Justice Harlan in 1881 because without it “the constitutional prohibition has no meaning. Neal v. Delaware, 103 U.S. 370, 397, 26 L.Ed. 567 (1881). Although the Neal ruling has been applied continuously during the past ninety years, it has not been broadened to apply to the situation in which the grand jury foreman pro tempore rather than the grand jury itself has been selected through a racially discriminatory system. Alexander v. Louisiana, 405 U.S. 625, 628-632, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (applying Neal to discrimination with respect to the grand jury venire).
In determining whether the extraordinary remedy of quashing an indictment after conviction without a showing of prejudice should be broadened to cover this situation, it is important to examine the social policy reasons for which the original ruling was adopted to determine whether that rationale also compels the creation of a similar ruling regarding the grand jury foreman pro tempore. The Neal ruling was based on the lack of alternative remedies to discrimination with respect to the grand jury system and the importance of the grand jury in the criminal system. Since there are presently effective class action remedies available for discrimination under 42 U.S.C. § 1983 and since the grand jury foreman pro tempore has a role less critically important to the criminal process than the entire grand jury, the rationale of the Neal-ruling is not directly applicable to the case at hand. I would therefore decline to broaden the Neal ruling to require quashing the indictment without a showing of prejudice, even though the grand jury foreman pro tempore was selected under a discriminatory system.
For these reasons, I would concur with the result reached in the majority opinion.