with whom GODBOLD, Chief Judge, ALVIN B. RUBIN, FRANK M. JOHNSON, Jr., POLITZ, HATCHETT, R. LANIER ANDERSON, III, RANDALL, SAM D. JOHNSON and THOMAS A. CLARK, Circuit Judges, join, dissenting:
This case presents a single issue: whether in the district court appellant proved an unrebutted prima facie case of racial discrimination in the selection of the grand jury and petit jury which respectively indicted and tried him. The majority concludes appellant failed to prove such a case. I disagree.
I.
The majority opinion, prior to addressing the merits of the jury discrimination claim, discusses a collateral issue: whether the claim is cognizable. The majority describes the crime in explicit detail, emphasizes that the claim is not guilt related, and zealously advocates that habeas relief be limited to those making a colorable claim of innocence. That issue, however, is not before us. This is not a case of first impression which we would be free to decide based upon our interpretation of the Constitution. On the contrary, during the pendency of this appeal, the Supreme Court determined this precise issue adversely to the position urged by the majority. In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), the Court held that claims of racial discrimination in the selection of members of a state grand jury are cognizable in federal habeas corpus, notwithstanding that guilt was established beyond a reasonable doubt at a trial free from constitutional error.1 The law thus has been established by our highest judicial tribunal, and we, as members of a lower court, are bound by Supreme Court precedent,2 regardless of personal views.3 To continue to espouse in *1132judicial opinion a position so recently rejected by the Supreme Court is irrelevant and inappropriate.
II.
Appellant was indicted by the September 1962 Orleans Parish grand jury and tried and convicted in July 1963. He first raised the issue of jury discrimination prior to trial and has pursued it through state and federal courts since.4 This appeal is from the decision of the federal district court which, after an evidentiary hearing, denied his claim.
As the majority indicates, the Supreme Court in Castaneda v. Partida, 430 U.S. 482, 494-95, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) established the guidelines for proving a case of jury discrimination.5 To make out *1133a prima facie case the petitioner must show: (1) the group allegedly underrepresented is a recognizable, distinct class;6 (2) the group is underrepresented by comparing the proportion of the group in the total population with the proportion in the jury venire over a period of time; (3) the selection system is susceptible of abuse or is not racially neutral. The burden then shifts to the state to rebut the prima facie case by explaining the alleged disparity.
III. The Prima Facie Case
A. The Statistical Evidence
The district court made extensive findings of fact as to the statistical evidence of underrepresentation. The court found, inter alia:
In 1962 blacks constituted 38.8% of the Orleans Parish population.
In 1963 blacks constituted 39.5% of the Orleans Parish population.
In 1962 blacks constituted 33.7% of the male population aged 21 through 64.
In 1963 blacks constituted 34.4% of the male population aged 21 through 64.
The disparity between the presumptively eligible population and black males of 21-64 in 1962 (33.7%) and the grand jury venire (14.9%) of January, 1962 is 18.8%.
The disparity between the presumptively eligible population of black males of 21-64 in 1962 (33.7%) and the final petit jury venire in 1962 (13.9%) is 19.8%.
The disparity between the presumptively eligible population of black males 21-64 in 1963 (34.4%) and the final petit jury venire in 1963 (21.8%) is 12.6%.
The disparity between the percentage which blacks constituted of the persons from whom the jury list was drawn and the percentage which blacks constituted of the jury list which was thereafter compiled is 17.1%. (32%-14.9%)
The 32% figure in the last finding was derived by taking literacy into account, using fifth grade education statistics.7
The district court did not explicitly conclude whether, based upon its findings of fact, appellant had presented a prima facie case. Rather, it denied relief because, “assuming arguendo that the disparities did present a prima facie case,” it concluded that the evidence adduced by the state, that the jury commission and the judges at the time of appellant’s indictment and trial were making “a sincere effort,” adequately explained and justified the disparities.
A careful reading of the record reveals that the major portion of the findings of the trial court were stipulated to by the parties. When the state and appellant disa*1134greed on a proposed finding, the trial court uniformly accepted the state’s proposal. We must, therefore, accept the findings as not clearly erroneous. A. Duda & Sons Coop. Assn. v. United States, 504 F.2d 970 (5th Cir. 1974).
The disparities as found by the district court, together with the selection method used (discussed infra), were more than sufficient to establish a presumption of racial discrimination. In prior decisions the Supreme Court has indicated prima facie cases were proved upon showing disparities of 23%, Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), 33%, Carter v. Jury Commission, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), 25% and 33%, Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958), and 14%, Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). These percentages represent the disparities between the percentage representation of the group in question in the general population and its representation in the jury system.8 Thus, when comparing percentages of the relevant group in the general population to its representation in the jury system, disparities of 14%, Hernandez v. Texas, supra, and greater have been held to raise a presumption of intentional discrimination.
Where a narrowed population has been considered, the impermissible disparity also has been as low as 14%. For example, when the names appearing on the tax digest were used, the Court held unacceptable disparities of 18%, Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); 14.7%, Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967);9 and 19.7%, Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967). In Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), using population statistics narrowed to the jury aged population, the court held that a 14% disparity, combined with evidence that the selection process was not racially neutral, established a prima facie case.
In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), as the majority points out, the Supreme Court held that a 10% disparity between the percentage of blacks in the male population over the age of 21 and the percentage of blacks on jury venires over a period of years was not sufficient alone to prove a prima facie case where there was no proof of racial discrimination in the selection process.
The majority does not and cannot dispute that, based upon these decisions, disparities in the range of 17-20%, as found by the trial judge, in a system not racially neutral, raise a presumption of invidious discrimination and require the state to come forward with rebuttal evidence. Nevertheless, the majority concludes that appellant failed to prove a prima facie case. It reaches this conclusion by completely ignoring the district court’s findings of fact as to the relevant percentages of blacks in both the eligible population and in the jury venire for the decisive years. Instead, percentages based upon a formulation never introduced or considered at trial debut across the pages of an appellate opinion. Understandably, these substituted figures create much smaller disparities than do the findings of the district court.
Nowhere does the majority opinion declare the district court’s findings “erroneous”; it simply ignores them. Our standard of review mandates that we accept the findings of fact of the district court unless *1135we specifically reject them as clearly erroneous. Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647 (1948); Baker v. Metcalfe, 633 F.2d 1198 (5th Cir. 1981); United States v. Cruz, 581 F.2d 535, 541 (5th Cir. 1978); Fed.R.Civ.P. Rule 52. For an appellate court to disregard totally the trial court’s findings and instead base its conclusion upon findings of its own is impermissible and antithetical to the process of appellate review. Furthermore, where as here, the trial court’s findings are based upon stipulated facts, they must be accepted. Refusal to do so flies in the face of established precedent. As we stated in A. Duda & Sons Coop. Assn. v. United States, 504 F.2d 970, 975 (5th Cir. 1974): “It is well settled that stipulations of fact fairly entered into are controlling and conclusive, and courts are bound to enforce them, ... even if the government is the party bound.”
Moreover, were we free to begin with a fresh slate and derive our own figures on appeal, those adopted by the majority are unacceptable in several respects. First, the majority has substantially narrowed the eligible population by arbitrarily deciding that a minimum of seven years of schooling is the standard for determining “literacy.” There is no evidence in the record as to how much education is needed to comply with the Louisiana statute requiring that jurors read and write the English language.10 In Castaneda the Court looked at the population which had “some schooling.”11 In Labat v. Bennett, 365 F.2d 698, 728 (5th Cir. 1966) and again in Newman v. Henderson, 539 F.2d 502 (5th Cir. 1976), both Louisiana cases, this court considered the percentage of jury-age population having five or more years of education. Apparently relying on this circuit’s precedents, the district court examined and utilized for the determination of eligible jurors the percentage of the male jury-age population non-occupationally exempt and having five or more years of education.
Although the majority states that the seventh grade literacy standard was established by the Louisiana Supreme Court, it cites as authority for this assertion State v. Barksdale, 247 La. 198, 170 So.2d 374 (1964), wherein the court attempted to justify the racial disparities by noting the greater number of whites than blacks with between seven and twelve years of education and the even larger number of college-educated whites. This generalized comparison falls short of establishing the minimum education needed to read and write and does not permit use of a population figure thus narrowed to establish the racial disparities on the jury list in question. Assuming arguendo that the standard is a proper one, or that it could be construed as legally adopted by the Louisiana court, it was not introduced or proved as such by the state in the court below where it could have been disputed, and may not be considered initially on ap*1136peal. Ramirez v. Sloss, 615 F.2d 163 (5th Cir. 1980).
Second, the majority opinion rejects as “mere estimates” the population figures for 1962 and 1963, stipulated by appellant and the state and found by the district court, because they were derived by the three-point LaGrangian interpolation.12 Instead, it compares the jury venire figures for the years 1962 and 1963 with the general population figures for the year 1960 in order to establish the disparity for the years 1962 and 1963. This reasoning is illogical. Moreover, in previous jury discrimination cases this court has employed the identical interpolation methodology utilized in the court below. See Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966). In addition, at trial, the state offered no objection to the 1962 and 1963 population figures as found by the district court; indeed, the state stipulated to those figures. Again, the majority ignores our proper role as an appellate court.
Third, in determining the relevant black percentages on the general jury venire in 1962, the majority once more disregards the finding of the district court. The district court found:
As of January 1,1962, prior to drawing of the venire, blacks constituted approximately 14.9% of the general venire as embodied in the Orleans Parish jury wheel from which grand and petit jury venires were drawn.
In making this finding, the district court adopted the state’s proposed finding. The majority, relying upon a paragraph from a stipulation13 between the parties in the state trial court, produces two different figures for black percentage on the general venire: 19.43% and 16.64%.14
Reliance upon this paragraph is misplaced. It was not urged by the state at the evidentiary hearing, nor on appeal. Moreover, in this paragraph, the parties merely stipulated what the return showed; they did not stipulate that the figure shown on the return was correct as constituting the entire general venire. Specifically, this paragraph recited:
23. According to the return to the Subpoena Duces Tecum issued to the Jury Commission out of a total of 607 names in the jury wheel as of January 1, 1962, 118 or 19.43% were Negroes.
A. Note the figure 118 includes a category called indeterminate in which there were 34 persons.
Paragraph 23, however, cannot be read in isolation; it must be considered in conjunction with the paragraph that immediately follows:
24. According to the return to the Subpoena Duces Tecum issued to the Jury Commission out of a total of 1200 persons called for petit jury service as of January 1,1962, 198 or 16.50% were Negro.
*1137A. Note the figure 198 includes a category called indeterminate in which there were 60 persons.
The names of those persons called for petit jury service, referred to in paragraph 24, were drawn from the general venire. Therefore, an accurate total for the number of names in the general venire (jury wheel) as of January 1,1962 must include the 1200 who were placed into the petit jury venire. The state apparently recognized this fact. The state’s proposal for the percentage of blacks in the general venire obviously is derived by adding together the total numbers from paragraphs 23 and 24 (assuming that 50% of the “undetermineds” are black).15 The language used by the trial judge in his finding that “prior to drawing of the venire, blacks constituted approximately 14.9% of the general venire” corroborates this interpretation. (Emphasis added.)
Under 28 U.S.C. § 2254(d)16 a federal court may, in an evidentiary hearing, supplement facts not adequately developed in state court, and this was done in the court below. The state proposed to the district court, the district court found, and the state *1138argues to this court that the percentage of blacks on the general venire in 1962 was 14.9%.17 We must accept this figure as it is not clearly erroneous.
A table, attached to the state court document containing the disputed stipulation, lists figures for the number of blacks on the grand jury venire from 1954 through 1962, thus showing the underrepresentation over a “significant period of time.”18 This table19 reveals that only 14% of the persons on the September 1962 grand jury venire were black. The document further indicates that from the March 1958 grand jury venire to the September 1962 venire, blacks constituted approximately 14% of the persons on the grand jury venires (and this figure assumes that all unknowns are black), while the percentage of blacks in the general population, as found by the trial judge, was roughly one third. As the grand jury venires were chosen randomly from the general venire it can be assumed, absent evidence to the contrary, that the disparities which existed between the percentage of blacks on the grand jury venires and the general population over the four-year period are approximately the same as existed between the percentage of blacks on the general venire and those in the general population.
The evidence at the evidentiary hearing showed that from September 1958 through September 1962 only two blacks were on each grand jury, except the September 1960 grand jury on which there was one black. The findings by the district judge for the years 1962 and 1963 as to the percentage of blacks in both the total population (1962— 38.8%; 1963 — 39.5%) and the eligible population (narrowed to relevant age, not occupationally exempt, and literate: 1963 — 32%) together with the official censuses for 1950 and 1960, which show a slight increase in the black population over that twelve-year *1139span, raise a strong presumption of systematic underrepresentation over these years.20
Accepting the district court’s findings as not clearly erroneous,21 I conclude that appellant presented a compelling case of significant underrepresentation of blacks on the general jury venire from which the grand jury and petit jury venires were drawn.
B. The Selection Procedure
We turn next to the jury selection procedure to determine whether the system was “susceptible of abuse or not racially neutral.” Castaneda, 430 U.S. at 494, 97 S.Ct. at 1280.
The record reveals that as a first step in the process the jury commission subpoenaed for jury service qualification individuals selected at random from the city directory.22 These individuals were required to complete a questionnaire, including race, on the reverse side of the subpoena and to appear before the commission at which time the subpoena was surrendered. The commission eliminated all prospective jurors found to be not qualified or exempt23 and excused others because of hardship. The names of those found to be qualified and not excused were to be placed in the general venire.24 At this stage, as found by the district court for the year 1962, the proportion of blacks was reduced from approximately one-third of those summoned to 14.9% actually placed on the general venire, a disparity of 18%. The Supreme Court has recognized that there is an opportunity for abuse in a system which permits the race of the potential juror to be known by the people selecting the jury. See Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). See also Ross v. Wyrick, 581 F.2d 172 (8th Cir. 1978). The dramatic reduction in the representation of blacks at this level would suggest that advantage was taken of that opportunity.
Further potential for discrimination existed in the method of selecting grand juries. Twice a year a grand jury venire was drawn randomly from the general venire. The judge in charge of the grand jury for that term of court personally would select from the grand jury venire twelve persons for the grand jury. Again, the race was known. The fact that from September 1958 through September 1962 exactly two blacks were on each grand jury, except September 1960 when there was only one, negates the probability of random selection and forcefully indicates racial consideration. The testimony of two judges25 buttressed *1140Barksdale’s argument that there was exclusion through limited inclusion, a practice we disapproved in Goins v. Allgood, 391 F.2d 692 (5th Cir. 1968) and Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966).26
The statistician who testified for appellant indicated that the probability of having exactly two blacks on each of those juries but one, given the amount of variance in the number of blacks on the venire, is less than one in a thousand. See also Finkelstein, The Application of Statistical Decision Theory to the Jury Discrimination Cases, 80 Harv.L.Rev. 338 (1966) (utilizing the grand jury sequence in Barksdale as an illustration of systematic discrimination).27 The district court made no finding of fact on this point, concluding that it was faced with “totally opposing views of competent and qualified experts.”
Appellant’s expert testified that the probability was less than one in a thousand that the 2-2-2-2-1-2-2-2-2 sequence was produced by random selection. The state’s expert, on the other hand, testified that given the percentage of blacks on each venire, having two black grand jurors on a jury was not statistically unusual. This is undisputed. The question is whether the consistent selection of two black grand jurors over a period of years is sufficiently unusual to show a selection process not racially neutral. As the state’s expert did not address himself to that question, the only evidence in the record is the testimony of appellant’s expert. The trial judge’s finding that the evidence was hopelessly conflicting was, therefore, in error. I conclude that the sequence of black representation on the grand juries from September 1958 to September 1962 was sufficiently unlikely to indicate that the selection process was not racially neutral.
The significant underrepresentation proved by the statistical evidence, coupled with the evidence that the selection process was not racially neutral and afforded opportunities for abuse, presented a prima facie case of discrimination. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).
IV. Rebuttal Evidence
Once the petitioner presents a prima facie case of intentional discrimination, the burden to rebut shifts to the state. I disagree with the conclusion of the trial judge and the majority that the state carried its burden. Although we are bound by the clearly erroneous standard when reviewing the findings of fact of the district court, Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647 (1948); Baker v. Metcalfe, 633 F.2d 1198 (5th Cir. 1981); Fed.R.Civ.P. Rule 52, we are not bound by conclusions of law. Horn v. C. L. Osborn Contracting Co., 591 F.2d 318 (5th Cir. 1979).
The district court conceded that the selection process was “haphazard” and that dis*1141parities existed which “had not been reduced to the desired percentages.” He concluded, however, that a “sincere effort” was being made to reduce the underrepresenta-, tion and that the jury commission and the judges were not engaged in invidious racial discrimination and purposeful exclusion of blacks.28
The majority similarly concludes that the evidence presented by the state adequately rebutted the prima facie case. The majority cites with approval the testimony of the state judges that they did not intentionally include or exclude blacks from jury service. It is well established that conclusory statements by judges and jury commissioners that there was no discrimination in jury selection will not rebut a prima facie showing; there must be concrete proof. See e. g., Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) (per curiam); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Ross v. Wyrick, 581 F.2d 172 (8th Cir. 1978). Although the judges and commissioners attempted to explain the reduction between the number of blacks summoned for jury qualification and the number actually placed in the general venire by stating that many blacks requested “hardship” excuses or failed to meet literacy requirements, no specific evidence was introduced by the state to corroborate these statements.
Moreover, the testimony of the judges as to the inclusion of two blacks on each grand jury, see note 25 supra, negates the assertion that they did not intentionally include or exclude blacks from the grand or petit juries. In addition, one, who testified that he did not use race as a factor in qualifying grand jurors, admitted that he “feels generally Negroes are less qualified than whites to serve as grand jurors.”29
The state offered no evidence as to how many or under what conditions wage earners were excused for “hardship.” This court disapproved the exclusion of all wage earners as a class in Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966). The majority distinguishes Labat on the ground that Labat held unconstitutional the total exclusion of wage earners; here, the district court found that the jury commission did not exclude the entire class. Yet, the principal justification offered by the state for reducing by approximately one-half the percentage of blacks summoned to the percentage placed on the general venire is that daily wage earners were excused. Assuming arguendo that the reduction is due to excusing wage earners, exclusion sufficiently widespread to create this kind of disparity refutes the probability that the general venire represented a cross section of the population.
The majority notes that the record lacks statistics detailed enough to calculate the exact racial breakdown of the population meeting the statutory criteria for juror qualification. Castaneda defines the burdens of proof of both petitioner and the state: it is for the petitioner to prove underrepresentation by showing the disparity between the proportion of the group in the total population and those on the jury venire; the burden is on the state to explain the disparity by evidence including narrowed population figures. Here, appellant, not the state, introduced population figures narrowed by virtue of age, sex, occupation, and schooling, which figures the state accepted. If other factors further could have *1142narrowed the disparity, the burden was on the state to present them. We cannot, at the appellate level, speculate as to possible justifications; we are limited to the evidence introduced in the court below.
I conclude that the state failed to rebut the prima facie case of intentional discrimination. I would reverse the district court. Therefore I dissent.
. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court denied federal habeas relief for state prisoners raising claims based on the Fourth Amendment exclusionary rule. In Rose the Court specifically declined to extend this limitation to a claim of grand jury discrimination. The Court stated:
[W]e conclude that a claim of discrimination in the selection of the grand jury differs so fundamentally from application on habeas of the Fourth Amendment exclusionary rule that the reasoning of Stone v. Powell should not be extended to foreclose habeas review of such claims in federal court.... [T]here are fundamental differences between the claim here at issue and the claim at issue in Stone v. Powell.... [W]e note that the constitutional interests that a federal court adjudicating a claim on habeas of grand jury discrimination seeks to vindicate are substantially more compelling than those at issue in Stone. As noted above, discrimination on account of race in the administration of justice strikes at the core concerns of the Fourteenth Amendment and at fundamental values of our society and our legal system....
443 U.S. at 560-64, 99 S.Ct. at 3002.
. The Rose opinion, written by Justice Black-mun, consisted of Part I: facts; Part II: that the claim was cognizable; and Parts III and IV: that petitioner failed to prove an unrebutted prima facie case of jury discrimination. Two Justices, Brennan and Marshall, concurred in all four parts of the opinion of Mr. Justice Blackmun. Four Justices, Burger, Powell, Rehnquist and Stewart, by two separate opinions, concurred in the judgment but disagreed with Part II. The remaining Justices, Stevens and White, dissented from the judgment denying habeas, but specifically concurred in Part II. Thus, five Justices held the claim to be cognizable. For a discussion of Rose as precedent, see The Supreme Court 1978 Term, 93 Harv.L.Rev. 60, 199-209 (1979).
. The majority quotes extensively from Judge Friendly for the proposition that habeas relief should be available only for those who make a colorable claim of innocence. See Friendly, Is *1132Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970).
Legal scholars have presented compelling arguments both pro and con on this issue. See generally, Kaufman v. United States, 394 U.S. 217, 231, 89 S.Ct. 1068, 1076, 22 L.Ed.2d 227 (1969) (Black, J., dissenting); K. Popper, Post Conviction Remedies in a Nutshell (1978); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963); Boyte, Federal Habeas Corpus After Stone v. Powell: A Remedy Only for the Arguably Innocent?, 11 U. of Richmond L.Rev. 291 (1977); Note, Guilt, Innocence, and Federalism in Habeas Corpus, 65 Corn.L.Rev. 1123 (1980); Comment, Federal Habeas Corpus: The Relevance of Petitioner’s Innocence, 46 U.Mo.K.C.L.Rev. 382 (1978).
. The panel opinion in this case, 610 F.2d 253 (1980), gives a complete procedural history:
Barksdale appealed his conviction, again challenging the composition of the grand and petit juries. The Louisiana Supreme Court affirmed the conviction, reasoning that educational and economic factors explain the disparity between the number of black males in the population and the number of blacks appearing on the jury wheel. State v. Barksdale, 247 La. 198, 170 So.2d 374, 381 (1964), cert. denied, 382 U.S. 921, 86 S.Ct. 297, 15 L.Ed.2d 236 (1965).
Relying partially on this court’s decision in Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334 (1967), Barksdale next pursued state habeas corpus. Again, the Louisiana Supreme Court denied his petition, State ex rel. Barksdale v. Dees, 252 La. 434, 211 So.2d 318 (1968). Three years later Barksdale filed a petition in federal court for a writ of habeas corpus. His case was consolidated with that of John Newman for the purpose of an evidentiary hearing before a United States magistrate. After the hearing before the , magistrate, the cases were separated and sent back to the judges to whom the cases initially had been assigned. The convictions of both Newman and Barksdale were set aside. The State appealed the decision in the Newman case, but did not immediately do so in the Barksdale case. The decision of the district court in the Newman case was affirmed. Newman v. Henderson, 539 F.2d 502 (5th Cir. 1976), cert. denied, 433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100 (1977).
Four months after the district court’s decision in the Barksdale case, the State requested permission, which was granted, to file a belated notice of appeal. That appeal was dismissed by this court upon motion of Barksdale. Barksdale v. Henderson, No. 73-1536, cert. denied, 419 U.S. 880, 95 S.Ct. 145, 42 L.Ed.2d 120 (1974). Meanwhile the State moved to vacate the original judgment in accordance with Federal Rules of Civil Procedure Rule 60(b)(4) on the ground that the hearing before the magistrate was an improper delegation of authority under Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2482, 41 L.Ed.2d 879 (1974). The motion was granted and appealed unsuccessfully by Barksdale, Barksdale v. Henderson, 510 F.2d 382 (5th Cir.), cert. denied, 422 U.S. 1045, 95 S.Ct. 2662, 45 L.Ed.2d 697 (1975).
An evidentiary hearing was held by District Judge Christenberry, who died while the case was under consideration. Upon agreement of the parties, another evidentiary hearing was held before Judge Schwartz. As he had done at the previous hearing, Barksdale presented the testimony of Dr. Arnold Levine, a statistician, and Julian Murphy, a jury commission employee. The State, for the first time, introduced the testimony of Dr. David Smith, a statistician, to rebut in part the testimony of Dr. Levine. The court denied the petition for habeas corpus.
Because of a factual error committed by the district court, Barksdale moved for and was granted a new hearing. At this hearing additional evidence was introduced both by the State and by Barksdale. The district court again denied the petition for habeas relief. It is from that order that the petitioner appeals to this court.
. In order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The *1133first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Hernandez v. Texas, 347 U.S. [475] at 478-479 [74 S.Ct. 667 at 670-671, 98 L.Ed. 866]. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. Id., at 480 [74 S.Ct. at 671], See Norris v. Alabama, 294 U.S. 587 [55 S.Ct. 579, 79 L.Ed. 1074] (1935). This method of proof, sometimes called the “rule of exclusion,” has been held to be available as a method of proving discrimination in jury selection against a delineated class. Hernandez v. Texas, 347 U.S., at 480 [74 S.Ct. at 671]. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Washington v. Davis, 426 U.S. [229] at 241 [96 S.Ct. 2040, at 2048, 48 L.Ed.2d 597]. Alexander v. Louisiana, 405 U.S. [625] at 630 [92 S.Ct. 1221 at 1225, 31 L.Ed.2d 536], Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.
430 U.S. at 494-95, 97 S.Ct. at 1280.
. That blacks are a recognizable, distinct class, capable of being singled out for different treatment under the law is not disputed.
. Although neither side presented any evidence at trial as to the degree of education necessary to comply with the literacy prong of the Louisiana statute for jury qualifications, see note 10 infra, this circuit in Labat v. Bennett, 365 F.2d 698, 728 (5th Cir. 1966), and again in Newman v. Henderson, 539 F.2d 502 (5th Cir. 1976), used five years of education as a criterion of literacy. Obviously, the district court adopted this standard.
. A Fifth Circuit case, Muniz v. Beto, 434 F.2d 697 (5th Cir. 1970), indicated a prima facie case had been proved upon a showing of a 12% disparity between the percentage of Spanish surnamed individuals in the general population and the percentage which served on fifty successive grand juries.
. The majority in conceding that the Supreme Court had found evidence of discrimination in Whitus and Jones states that the disparity in these cases was 33.5% and 25.7% respectively. The percentages used by the majority are misleading in that they reflect the percentages of the group in the general population whereas in each case the Court based its decision upon the disparity found in the narrowed population (those names appearing on the tax digest).
. L.S.A.-R.S. 15:172:
§ 172. Qualifications
The qualifications to serve as a grand juror or a petit juror in any of the courts of this state shall be as follows:
To be a citizen of this state, not less than twenty-one years of age, a bona-fide resident of the parish in and for which the court is holden, for one year next preceding such service, able to read and write the English language, not under interdiction or charged with any offense, or convicted at any time of any felony, provided that there shall be no distinction made on account of race, color, or previous condition of servitude; and provided further, that the district judge shall have discretion to decide upon the competency of jurors in particular cases where from physical infirmity or from relationship, or other causes, the person may be, in the opinion of the judge, incompetent to sit upon the trial of any particular case.
In addition to the foregoing, jurors shall be persons of well known good character and standing in the community.
(emphasis supplied).
. The Supreme Court’s holding in Castaneda was based on general population statistics. In a footnote, the Court, in rejecting the state’s argument that the disparities could be explained by differing literacy levels, narrowed the population to individuals over the age of 25 with some schooling and compared that to the representation on the grand jury. Using this narrowed statistic the Court found a 26% disparity which it termed a “significant disparity.” The decision that a prima facie case had been proved, however, was not based on that statistic. 430 U.S. at 488-89 n. 8, 97 S.Ct. at 1276-77 n. 8.
. The three-point LaGrangian interpolation is a method of computing population figures for inter-census years based upon the actual census counts for the surrounding years. This formula is accepted by statisticians and was relied upon by this court in Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) (en banc).
. The state court document, although bearing the caption “State of Louisiana versus Bruce Barksdale” and signed by the attorneys who represented Barksdale, recites that “the defendant herein, Morris Rowe is a member of the Negro Race.” Presumably, this was a stipulation in an unrelated case which was also entered in the Barksdale case.
. The first figure, 19.43%, assumes that all persons of undetermined race are black; the second figure, 16.64%, assumes that one-half of the undetermineds are black. The state argued in the court below that 50% of the undetermineds were black, and the district court adopted this percentage. The majority, however, states that there is some support in the record for the assertion that 100% of the undetermineds were black. Aside from ignoring that the state proposed 50% in the district court, the assumption that 100% of the undetermineds were black has been demonstrated empirically to be false. At one point the race of 13 people listed as “undetermined” was determined. Of the 13, 6 were white. While statistically this does not prove the percentage of all unknowns, it does prove that not all undetermineds were black.
. The practice of the jury commission of not placing in the jury wheel at the same time all names of those subpoenaed and found qualified casts further doubt on the reliability of paragraph 23. Attached as an appendix to the opinion of the district court was a “Stipulation Regarding Jury Commission Practice.” In pertinent part it stated:
The subpoenas compelled a person’s appearance before the Jury Commissioners for qualification. The reverse side of the subpoena requested the recipient to supply various personal information among which was a racial designation. When a person appeared before the Jury Commission, he surrendered the completed subpoena. If he was found to be qualified, and was neither excused nor exempted, the process proceeded as follows.
From the information contained on the qualifying subpoena, a white slip and a blue slip was prepared. Each slip had the name of the person, his address, and the place of work, but no racial designation. The blue slip was then filed in a master alphabetical file to be retained for possible use as a crosscheck for accuracy when information was transferred from an old to a new city directory. The white slip was ultimately used in the actual drawing process. The subpoena was stapled to a card and filed in a separate file. From that point on, the subpoena and attached card were intended to be used for no purpose other than to record on the card each date that the white slip was removed from the jury wheel.
For some number of these persons, who expressed a reason for not wishing to serve, the Jury Commission agreed in some cases not to put their names in the jury wheel, that is not to use them as prospective jurors, unless it became necessary. For such persons, a blue and a white slip was not prepared immediately. On their subpoena was placed the letter “E” designating emergency use only. These subpoenas were kept in a separate file from which they were taken when additional jurors were needed. At that time, from the information contained on the subpoenas, blue and white slips would be prepared and the subpoena, with a card attached, would then be filed in the file with the other subpoenas and cards.
(emphasis supplied).
. 28 U.S.C. § 2254(d) provides:
(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
******
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.
. See Supplementary Brief of Appellee for Rehearing En Banc at 28-29, footnote “f.”
. The Supreme Court In Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958) and this circuit in Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) had officially found systematic exclusion of blacks in Orleans Parish, Louisiana over a period of years prior to 1960.
. Grand Jury Venire Total Grand Jury Venire Negro & Colored Percent of Total Grand Jury Venire Negro, Colored & Undetermined Percent of Total Negroes Who Actually Served on Grand Jury
Mar. 54 75 6 12 16%
Sep. 54 75 6 9 12%
Mar. 55 75 5 6.6% 11 14.6%
Sep. 55 100 9 9% 15 . 15%
Mar. 56 75 8 10% 9 12%
Sep. 56 75 6 8 10.6%
Mar. 57 125 10 13 10.4%
Sep. 57 75 5 6.6% 10 13.3%
Mar. 58 100 7 14 14% 1
Sep. 58 100 7 10 10% 2
Mar. 59 100 10 10% 15 15% 2
Sep. 59 100 6 11 11% 2
Mar. 60 75 6 10 13.3% 2
Sep. 60 75 9 12% 12 16% 1
Mar. 61 75 8 10.6% 10 13.3% 2
Sep. 61 75 11 14.6% 11 14.6% 2
Mar. 62 75 10 13.3% 14 18.6% 2
Sep. 62 100 14 14% 14 14% 2
1,550 144 9.2% 208 13.4% 23
. A table attached to the state court stipulation reveals an even smaller number of blacks serving on the grand jury for the period 1954 to 1958. The table is printed at note 19.
. Rather than basing its conclusions on findings of the district court below, the majority opinion constantly alludes to the panel opinion in this case. Under our rules of procedure, once the case is voted en banc, the panel opinion is vacated.
. The commission admittedly did not subpoena all males of jury age. It excluded those who could claim an occupational exemption from jury service under La.R.S. 15:174, such as physicians, firemen, attorneys and teachers. Additionally, it did not subpoena those who worked as day laborers for companies the commission knew from past experience would not pay its workers while they were on jury duty.
. The Louisiana statute on juror qualifications is reprinted at note 10 supra.
. In practice not all the names of persons qualified and not excused were placed in the general venire. Names of certain persons, who expressed a reason for not serving, were designated E (Emergency) and placed in the venire from time to time as necessary. See note 15 supra.
. Judge Edward A. Haggerty, Jr., who impaneled the September 1960 grand jury which had only one black on it, testified at the hearing on Barksdale’s Motions to Quash that “I had selected two Negroes and one didn’t show up. I had alternatives in mind and I called for him at that time. I had selected two Negroes to serve on the grand jury in 1960.” T. 246. Were it not for the absence of that party, there would have been two blacks on every grand jury from the time Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958), was decided through the grand jury which indicted Barks-dale. Eubanks held that the judges and jury commissioners of Orleans Parish had been in*1140tentionally excluding blacks from grand jury participation, and directed that such conduct must stop. This court suggested in Goins v. Allgood, 391 F.2d 692 (5th Cir. 1968), that while total exclusion had perhaps ended with Eubanks, that exclusion through limited inclusion was present in the Barksdale case. 391 F.2d at 696-97.
As further evidence that there was race consciousness in the selection of grand jurors, Judge Thomas M. Brahney, Jr. testified in regard to the impaneling of a grand jury that had two blacks on it: “I distinctly recall there were two or three colored prospective jurors and one of them didn’t wish to serve and even after I appointed them and one of them took ill and I called several others ... one of them became ill and called to see if I could replace him and one had a heart condition, and he quit the jury.” It appears then that when one black grand juror fell ill he was purposefully replaced with another black, suggesting the judge was not making race-neutral selections.
. As Judge Brown stated in Brooks:
The dual requirements making awareness of race inevitable must be met, but this must never, simply never, be done as the means of discrimination. It must never, simply never, be applied to secure proportional representation. It must never, simply never, be applied to secure a predetermined or fixed limitation.
Id. at 24.
. The Supreme Court cited this article in Whitus v. Georgia, 385 U.S. 545, 552 n.2, 87 S.Ct. 643 n.2, 17 L.Ed.2d 599 (1966) in concluding that the probability of the underrepresentation in that case was .000006. The article again was cited by the Court in Castaneda, 430 U.S. at 496 n.17, 97 S.Ct. at 1281 n.17.
. The fallacy of this conclusion is demonstrated by the district court’s statement: “The testimony and evidence demonstrates that an attempt was being made to comply with the dictates of Labat." This court decided Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) in 1966. The practices at issue in this case occurred in 1962 and 1963.
. This statement is contained in a stipulation entered into by appellant and the state before appellant’s trial (in the record on appeal at p. 342). The judge who made this statement presided at appellant’s trial.