(dissenting):
I must dissent from the majority opinion because, in the final analysis, it appears to me to be based on a pre-Linkletter view of the problem, and on a similar position taken in the Fourth Circuit of *1097Woodall v. Pettibone, 465 F.2d 49 (4th Cir.). The adoption by the majority of a standard that any constitutionally unequal classification requires retroactive application will prevent this court from exercising a permitted and proper freedom of choice, and the use of a worthwhile tool of good judicial administration. The opinion also creates a totally unnecessary conflict with state administration of justice.
To arrive at the result it did, the majority must find that the trials of the sixteen- and seventeen-year-old offenders as adults were in some way defective, and the verdicts arrived at therein were “unreliable.” It so found those trials to be wanting in the ascertainment of the truth. There were no facts relating to these trials to develop this issue, and the unreliability of the trials was found by complete reliance on the rationale of Woodall v. Pettibone, 465 F.2d 49 (4th Cir.).
Woodall v. Pettibone concerned a prior decision which had held invalid a state law permitting the trial as adults of sixteen- and seventeen-year-old offenders for offenses in the city of Baltimore. The court said that the invalid limitation to Baltimore made the trials there unfair. The court there said:
“ . . .To deny juveniles in Baltimore the opportunity of such a defense [‘ . . .of his diminished responsibility as a juvenile’] and to allow it to all other juveniles in Maryland seems to us so fundamentally unfair as to impeach the validity of the ‘adult’ proceedings and render unreliable the guilty verdicts obtained in these proceedings.”
The defense of “diminished responsibility” is, of course, the same matter as the unequal classification; therefore, the unequal classification makes the adult verdicts unreliable under the rationale in Woodall.
The reasoning of the majority here thus is: The classification was unconstitutional, in that some were tried as juveniles and some as adults when all should have been tried as juveniles. Therefore, the verdicts in the adult trials were “unreliable.” The “Therefore” part is difficult to jump, but it is the only way to support the retroactivity result. The step thus must be taken by the majority. The “Therefore” need not, and should not be followed by such a surprise. The complete reliance by the majority on Woodall v. Pettibone, 465 F.2d 49 (4th Cir.), and on the denial of certiorari in that case, is unusual in view of the treatment by the Supreme Court, of the same problem in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, and in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.
The Court in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, considers the uneven effect of nonretroactive application of decisions. It would seem preferable to follow Williams and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, rather than Woodall. In Williams, the plurality opinion said on this point, to distinguish it from the situation where the new constitutional doctrine overcomes an aspect of the trial that substantially impairs its truth-finding function:
“It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results but to serve other ends.”
In Stovall v. Denno, the Court said: “Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.”
As indicated above, the original adult forum trials must be invalidated to reach the retroactive conclusion. Stovall v. *1098Denno and Williams v. United States do not require nor even lead to such a result, but the majority instead chooses Woodall. Once the adult trials are invalidated, the majority concludes with a sweeping statement which is the basis of the opinion:
“We believe that the principles of ‘basic fairness’ mentioned in Robinson and ‘essential justice’ mentioned in Gosa require that the Lamb decision be applied retroactively.”
The quotation has a disarming ring of simplicity to it, and indeed who can oppose “basic fairness” and “essential justice.” But the choice is not so easily stated and furthermore, neither of the cases referred to leads to the conclusion indicated. The terms quoted above by the majority are not used in the Robinson and Gosa opinions in the way the majority opinion uses them, and certainly did serve as a basis for the decisions.
In Robinson v. Neil, 409 U.S. 505, at 509, 93 S.Ct. 876, at 878, 35 L.Ed.2d 29 the Court said:
“A number of the constitutional rules applied prospectively only under ''the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, [367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081], supra.’’ [Emphasis added.]
The Court gives examples of rules affecting the fairness of the trials.
The issue is not here raised as to the “fairness” of any trial, the procedures as such are not attacked as being unfair, nor is the comparative accuracy of the ascertainment of the truth at issue. The mention of “fairness” of the trial raises an issue not presented by the parties and not in the case.
As to the “essential justice” referred to by the majority in the quotation above, the Court in Gosa did not use the term the way the majority does. The Court in Gosa v. Mayden, 413 U.S. 665, at 685, 93 S.Ct. 2926, at 2938-2939, 37 L.Ed.2d 873 said:
“We must necessarily also consider the impact of a retroactivity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudications of guilt. Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved.” [Emphasis added.]
Thus the Supreme Court again refers to the accuracy of the process by which judgment was rendered or, in other words, when “essential justice” is not involved. Here again there is no such issue before us of the “accuracy” of the process. This matter is raised by the majority. •
It is apparent that the use of the terms quoted by the Supreme Court was to refer to actual procedural-mechanical failures in the trials themselves which rendered the fact-finding process questionable. We, of course, have no specifics here, and nothing whatever relating to the actual fact-finding process. The issues and the initial Lamb case instead concern the selection of alternative processes, the adult prosecution or the juvenile proceedings, each fair and each equally capable of ascertainment of the truth. There are obvious advantages as to penalties and related consequences in the juvenile proceedings over the adult prosecution. Otherwise we would not have these cases. This disparity is, of course, of constitutional magnitude as decided in Lamb, but this does not mean, as the majority decides, that “Therefore” the adult trials did not arrive at the truth and the verdicts are questionable. The choice was one of penalty-procedure, *1099and a choice not dominated nor dictated by matters relating to the ascertainment of the truth. The choice was between two equally good methods to ascertain the truth; the consequences which followed were obviously different. In these circumstances, the result should follow that in Gosa v. Mayden, — prospective application, rather than a pre-Linkletter standard.
The majority opinion would not permit this court in the future to make a determination that an opinion in a criminal appeal be applied prospectively only. If the past adult trials were invalid under the circumstances here present, it is impossible to imagine any situation where nonretroactivity could be applied. Prospective application is permitted under Linkletter, Gosa v. Mayden, Wolff v. McDonnell [418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935], considered in Stovall v. Denno, and other recent cases. Here instead there is imposed the rigidity of prior constitutional theory referred to above.
The Court, in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, said of Linkletter:
“Relying on prior cases, we firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored.”
Regardless of the freedom of choice available, the majority opinion rejects a consideration of the consequences of the decision upon the administration of the criminal laws in the state over the last thirty years. There is no question as to the actual validity or regularity of the convictions in the past under the state classification based on age and sex. The sixteen- to eighteen-year-old offenders who have been convicted from 1941 to 1973 as adults were accorded the due process rights available to all. The state indicates that these number in the thousands. The impact upon the state of retroactive invalidation of these convictions will be very severe and in any event is an unnecessary act.
It is still an unknown factor and ignored by the majority whether the juvenile court would nevertheless have certified these or many other of the many offenders as adults.
I also see no reason why this court cannot designate in an opinion a date when it will be applicable. Historically this has been done, and it is also sound judicial administration to do so in proper circumstances. Under the majority opinion, however, this court is now precluded from doing so. The opinion holds instead that the parties must raise the issue. If the court does it on its own motion, or as an administrative matter, it has uttered some low form of dictum which the opinion says, “ . . . arises no higher than ‘comment merely obiter.’ ” This certainly is not very high, even on the dictum scale, and indeed must be quite bad. As a matter of fact, the original panel in Lamb did this very thing. It set the effective date all by itself, not realizing how very little such a statement “arises,” and so received a chastisement by the majority.