dissenting:
The majority’s opinion today wrongly applies the burden of proof standards set out in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), for establishing a prima facie case of unconstitutional deprivation of a grand jury constituted from a fair cross-section of the community. In particular, the court would require defendant to demonstrate underrepresentation, notwithstanding direct proof of intentional, systematic exclusion of an identifiable group. Ante at 505-06. Because the appropriate benchmark for analysis is Thiel v. Southern Pacific Co., 328 U.S. *509217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), I respectfully dissent.1
A. Direct Prima Facie Case and Burden of Proof
Duren was a case in which the defendant attempted to demonstrate statistical un-derrepresentation of women from grand jury venires on the basis of their potential to claim automatic exemptions. It did not rest on direct allegations of intentional exclusion of women from grand juries. Rather, Duren supplied standards to determine when statistics can raise a prima facie inference of intentional exclusion of an identifiable group. “[I]n order to establish a prima facie case, it was necessary for petitioner to show that the underrepresentation of women, generally and on his venire, was due to their systematic exclusion in the jury-selection process.” 99 S.Ct. at 669 (emphasis added).
Duren thus provides guidance to efforts to “reason backwards” from suspicious statistics of underrepresentation to an impermissible cause of the underrepresentation, purposeful exclusion. It is such exclusion, or intentional discrimination, that is the harm.2 Inferential assistance from statistical analysis is not necessary where the harm of exclusion can be shown directly, as it has been here.
Where there is direct evidence of intentional discrimination, the proper starting point is Thiel, not Duren. In Thiel, the Court based its findings of impermissible, purposeful exclusion on direct testimonial evidence of a clerk of the court and of a jury commissioner. The clerk and commissioner refused to place names of day-laborers in jury venire lists because those individuals allegedly would request and receive excuses for financial hardship. Without requiring any showing that day-laborers would have been members of Thiel’s venire absent purposeful exclusion, the Supreme Court found an unconstitutional exclusion of an identifiable group.
Wage earners, including those who are paid by the day, constitute a very substantial portion of the community, a portion that cannot be intentionally and systematically excluded in whole or in part without doing violence to the democratic nature of the jury system. Were we to sanction an exclusion of this nature we would encourage whatever desires those responsible for the selection of jury panels may have to discriminate against per*510sons of low economic and social sta-tus____ It follows that we cannot sanction the method by which the jury panel was formed in this case____ On that basis it becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class____ It is likewise immaterial that the jury which actually decided the factual issue in the case was found to contain at least five members of the laboring class. The evil lies in the admitted wholesale exclusion of a large class of wage earners in disregard of the high standards of jury selection.
Thiel, 66 S.Ct. at 987-88 (footnote and citations omitted) (emphasis added).
Thiel thus elucidates the foundational tenet of American jurisprudence that any party to a lawsuit who is entitled to a jury shall have her jury selected according to a process that is free from the taint of purposeful discrimination. This tenet becomes bedrock when the party is a defendant to a charge of murder and the identifiable group and the discrimination alleged are racial. See, e.g., Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 25 L.Ed. 664 (1880). The majority in today’s case would have us dissolve the bedrock and dilute those high standards by forming a constitutionally opaque solution and requiring a needless search for unconstitutional precipitate.
In particular, the majority would require defendant Atwell to establish prejudice, by providing some evidence that unserved potential jurors in the Desire project were actually excluded from his venire. Ante at 506-507. This could be directly established by proof of nonservice on those ve-nire members chosen from the wheel for Atwell’s indictment, or indirectly by statistical evidence raising the inference that an unserved Desire resident would have been included in Atwell’s venire. Like Diogenes’ search through Athens for an honest man, such additional requirements are burdensome and unnecessary in light of Thiel's specific injunction against a harm inquiry.3 They also are fundamentally unfair in plain view of Atwell’s right to a grand jury selection process free from taint.4
*511The serious nature of the discrimination demonstrated by Atwell does not permit the State to speculate that no harm could have resulted.5 It requires the Government to demonstrate that no harm actually resulted as a logical certainty. As the Cage court determined, this requires a showing that all of the individuals chosen for Atwell’s venire were served, and that the jury selection process was therefore free from taint.
B. Failure of the Louisiana Supreme Court to Apply Cage
The Louisiana Supreme Court in Cage found that “the jury commission discontinued the service of subpoenas upon persons residing in the project during the preparation of the venire from which the grand jury was selected in this case.” 337 So.2d at 1123. When confronted by Atwell’s appeal, that Court acknowledged that the Cage “motion to quash [was] based upon the identical grounds advanced by the present defendant [Atwell].” State v. Harvey, 358 So.2d 1224, 1230 (La.1978) (emphasis added). The Louisiana Supreme Court, however, relying on its ruling in State v. Ferguson, 358 So.2d 1214 (La.1978), and on the fact that the practices were terminated, refused to apply Cage retroactively to Atwell’s indictment. Harvey, 358 So.2d at 1230. Ferguson states:
We have determined that Cage should be applied only prospectively to jury ve-nires improperly constituted by reason of the practices reprobated by the Cage holding, especially since the practices were terminated as a result of the Cage decision. The interest at stake (proper selection of jury venires) has been adequately served by Cage and the corrective measures thereafter instituted. No individual unfairness has resulted in the present case.
*512As in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), the application of Cage prospectively only to venires selected after the date of its decision, will adequately vindicate the constitutional interest at stake____ Under these circumstances, the vindication of the constitutional interest protected by Cage does not require reversal of other convictions, fairly tried before petit juries selected from properly confected ve-nires, because of Cage defects in the method of selecting the grand jury which indicted the accused.
358 So.2d at 1216-17.
The failure of the Louisiana Supreme Court to grant retroactive effect to Cage should not be given any credence by federal courts. First, the Louisiana Supreme Court, in stating that no individual unfairness has resulted, either relied upon suspect “harmless error” analysis or failed to appreciate the necessity for mandatory reversal. If this were not sufficient, the Louisiana Supreme Court misapplied Daniel.
Daniel itself considered whether the “decision in Taylor v. Louisiana [wa]s to be applied retroactively to other defendants whose opportunity to raise a timely objection to the jury-selection procedures had passed as of the date of [the] decision in Taylor.” 95 S.Ct. at 705 (emphasis added). Since defendant Atwell raised a timely objection at his trial, based upon the Cage testimony and the quashing of Cage’s indictment, Daniel is wholly inapposite. Further, Cage did not enunciate new legal standards, but followed Thiel; there is thus nothing to apply retroactively under Daniel. Even were there some question whether the Louisiana Supreme Court’s decision should be “retroactively” applied, the Cage affirmance should relate back to the Cage trial court’s quashing of the indictment, requiring prospective application in Atwell’s case.
C. The District Court’s Denial of Habeas Corpus
The District Court relied upon Preston v. Maggio, 741 F.2d 99, 101-02 (5th Cir.1984), cert. denied — U.S.-, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985), to require that defendant Atwell demonstrate that “Desire residents were selected for service on the grand jury which indicted him, but were not served with a subpoena summoning them for that duty.” Federal Record at 75. Because of Atwell’s purported failure to meet habeas standards of prima facie proof, the District Court did not reach the retroactivity issue. Id. at 73 n. 3.
The District Court’s reliance on Preston is flawed, and Preston itself is subject to question in light of Thiel and Hillery. The District Court relied on language in Preston requiring defendant to demonstrate actual prejudice by evidence of exclusion at the level of the venire actually chosen for him. Federal Record at 73-75; see Preston, 741 F.2d at 101; cf. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Because the harm is the exclusion itself, because harmless error analysis cannot be applied, and because a prima facie case is established by direct evidence of exclusion at the multiple-venire level, Preston had likely met his habeas burden of showing “prejudice.”
Although it is wholly unnecessary to demonstrate prejudice in Atwell’s case, prejudice was shown by direct evidence of systematic exclusion at the multiple-venire level. Such prejudice can only be negated by Governmental proof that no discrimination occurred.
Conclusion
Strauder and Thiel continue to provide constitutional safeguards against the specter of intentional, systematic exclusion of blacks from jury duty. Although such discrimination is today substantially less visible in the sepulchers of our collective judicial wisdom, the invidious practice has yet to rest firmly in its grave. It is inconceivable that the United States Constitution does not supply the nails for such discrimination’s coffin. Where systematic misapplication of these laws has thereby resulted in unconstitutional incarceration, the “great writ” of habeas corpus provides the *513hammer to strike the Constitutional blow. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1023-25, 82 L.Ed. 1461 (1938).
Although granting of the petition for habeas corpus is a matter of discretion, see Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), failure to grant the motion based on erroneous conclusions of law is an abuse of that discretion. Cf. Eggleston v. Estelle, 513 F.2d 758, 760-61 (1975). Because defendant Atwell met his burden of proof in establishing a constitutional violation at his trial, and raised this claim at every opportunity on appeal, he is entitled to relief. Further, because the trial court relied upon harmless error analysis and refused to reach the Louisiana Supreme Court’s erroneous failure to apply Cage, I would accordingly reverse the decision of the District Court and remand the cause with instructions for the writ of habeas corpus to issue.6
. The recent Supreme Court decisions in United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), United States v. Stauffer Chemical Co., 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984), and Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), appear to prohibit nonmutual defensive collateral estoppel against governmental parties in habeas corpus review of criminal cases. Thus, we cannot simply apply the Louisiana Supreme Court’s determination that “the grand jury venire was assembled in violation of both federal and state constitutional principles because the exclusion was deliberate and involved a sizeable and distinctive group in the community,” State v. Cage, 337 So.2d 1122, 1125 (La.1976). See United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, 1121 n. 10 (5th Cir.1981) (characterizing as offensive and prohibiting in habeas corpus proceedings collateral estoppel of identical grand jury discrimination claims previously litigated unfavorably to the government); cf. Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1578-82 (11th Cir.1985) (extending to defensive collateral estoppel the Mendoza governmental-party exclusion). We are instead required indirectly to redetermine what is common knowledge, was admitted by the Government, and was found as a matter of fact and law by the Louisiana Supreme Court, viz, that a sizeable group of black individuals at the Desire housing project were intentionally and unconstitutionally excluded from grand jury venires.
. See Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 2166-68, 33 L.Ed.2d 83 (1972). It has long been recognized that there is no right to a fully representative grand or petit jury, only to a selection process that does not impermissibly exclude, or discriminate, against distinctive groups of individuals within the community. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975); Thiel, 66 S.Ct. at 985; Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945). Hence, the harm is not in the underrepresentation, but in the exclusion. Further, "[t]he harm [of grand jury racial discrimination] is not only to the accused, indicted as he is by a jury from which a segment of the community has been excluded. It is to society as a whole.” Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 3000, 61 L.Ed.2d 739 (1979).
. See Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 631-33, 94 L.Ed. 839 (1950) (distinguishing between murder defendant Cassell's claim based on underrepresentation and that based on intentional exclusion of blacks from grand jury service, and holding that such discrimination "does not depend upon systematic exclusion continuing over a long period and practiced a succession of jury commission-ers____ [I]t is enough to have direct evidence based on the statements of the jury commissioners in the very case.”).
Even the Louisiana Supreme Court, in Cage itself, recognized the sufficiency of direct proof and the subsequent irrelevance of demonstrating underrepresentation.
In the instant case the defendant did not seek to establish a prima facie case of purposeful discrimination by statistical data, which the State then might have overcome by evidence presenting a constitutionally acceptable explanation for racial or class disparities shown to exist____ The State asserted, without proof, that despite the exclusion of the Desire project dwellers, the grand jury venire constituted a cross-section of the community because poor black people residing in subsidized housing were adequately represented. Even if we accept this assertion as true, we conclude that the grand jury venire was assembled in violation of both federal and state constitutional principles because the exclusion was deliberate and involved a sizeable and distinctive group in the community____ [I]t appears that service was discontinued for a period of time in this area out of a sincere concern for the safety of the process servers____ But the fact remains that a particular geographical group was intentionally excluded from the potentiality of service upon the grand jury in this case.”
Cage, 337 So.2d at 1125 (citations omitted) (emphasis added).
. See Vasquez v. Hillery, — U.S.-, 106 S.Ct. 617, 623-24, 88 L.Ed.2d 598 (1986) (holding that racial discrimination in grand jury selection does not countenance harmless error analysis, i.e., does not require the defendant to demonstrate actual prejudice or effect on the fairness of his subsequent trial, and indicating that mandatory reversal is required); Peters, 92 S.Ct. at 2168. Cf. Rose, 99 S.Ct. at 2998 n. 4; Guice v. Fortenberry, 661 F.2d 496, 499 (5th Cir.1981) (en banc) (requiring convictions to be set aside).
Although the Louisiana Supreme Court in Cage found that the Desire project was black, 337 So.2d at 1123, that Court did not base its holding on Equal Protection/Due Process "fundamental fairness” principles, see Peters, 92 S.Ct. at 2169, but rather relied upon cross-section *511cases. There is substantial, uncontroverted evidence in the record to support an Equal Protection/Due Process violation in both Cage and Atwell.
On January 12,1976, defendant Atwell filed in the state trial court a written motion to quash the grand jury indictment on state and federal constitutional grounds of “exclusion of identifiable geographic and other groups.” State Record, transcript volume 1, at 139. The state trial court denied the motion, to which the defense took timely objection, and ordered the December 15, 1975 "Transcript of Hearing on Motion to Quash” in Cage to be placed in the record. Id. at 6-7 (minute entry).
In that "Transcript,” William L. McCray of the City of New Orleans Housing Authority testified that the number of individuals living in the Desire project as of October 1, 1975 was 9,531, and that 100% were black. Id., appeal volume, copy of Cage transcript, at 13. In order to avoid obtaining statistics to assess fluctuations of the Desire population, the trial judge took "cognizance of the fact the area is predominantly black, and [he] wouldn’t think this report [of McCray] would change the racial composition that much from a report that would be to a closer date [to the grand jury service exclusion].” Id. at 15-16.
The testimony of Earl Duplantier, Chairman of the Orleans Parish Jury Commissioners, which was uncontroverted, established that potential grand jurors from the Desire project were not served at least from February of 1975 until July or August of 1975, during which time Cage’s grand jury was selected. Id. at 3-4, 10.
Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), an equal protection case, partially rested its finding of systematic exclusion on direct evidence of discrimination:
This Court has never announced mathematical standards for the demonstration of "systematic” exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors____ [W]e do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral.
92 S.Ct. at 1225. Once the prima facie case was made, the burden of proof shifted to the state to rebut the presumption of unconstitutional action by showing that permissible, racially neutral criteria were employed. Id. at 1226. Equal Protection/Due Process thus provides an alternative theory to the present analysis.
. Compare Hillery, 106 S.Ct. at 623-24, with United States v. Mechanik, — U.S. -, 106 S.Ct. 938, 942 & n. 1, 943, 89 L.Ed.2d 50 (1986) (applying harmless error analysis to the simultaneous presence of witnesses before a grand jury, in violation of Federal Rule of Criminal Procedure 6(d), and distinguishing the Hillery automatic-reversal rule for racial discrimination in grand jury selection on the basis of the long line of precedent and the “societal interest in deterring this sort of error").
. Because this case should be disposed of on discriminatory exclusion grounds, I do not reach defendant Atwell’s other claims.