(dissenting) :
The appellant was a 16-year-old child in 1961 when the then single judge Juvenile Court waived jurisdiction over him. On trial in the District Court he was found guilty on three counts of housebreaking and three counts of robbery,1 but not guilty by reason of insanity on two counts of rape during the other crimes. This Court of Appeals upheld the Juvenile Court’s waiver and affirmed the criminal convictions.
When it was too late to file a timely motion for rehearing, appellant moved for leave to file out of time a petition for rehearing en banc. He has now moved to withdraw that motion in order to petition the Supreme Court for cer-tiorari.
A confession of error by the government in a criminal appeal does not relieve the appellate court of its- obligation to consider whether the requested reversal is consistent with the public interest. Parlton v. United States,. 64 App.D.C. 169, 75 F.2d 772 (1935).2 The same principle applies here. When a motion for leave to withdraw a pleading in a criminal case involves a question that affects the administration of justice, we must consider whether the requested withdrawal is consistent with the public interest. “[0}ur judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.” Young v. United States, 315 U.S. 257, 259, 62 S.Ct. 510, 511, 86 L.Ed. 832 (1942). If, as I think, the public interest requires that appellant’s appeal from his conviction be reheard en banc, withdrawal of his motion for leave to file a petition for rehearing en banc is not consistent with the public interest. I therefore vote to deny his motion to withdraw that motion.
As Judge WASHINGTON’S concurring opinion recognizes, “It is a fair inference from the record before us that one of the reasons why the Juvenile Court waived jurisdiction was because appellant was seriously disturbed and the Juvenile Court lacked facilities adequately to- treat him.” I think it shocking that a child was subjected to prosecution and punishment as a criminal'because he was thought to suffer from a serious mental or emotional disturbance. I can think of no stronger reason- for not doing this.
Waiver of the Juvenile Court’s- jurisdiction over a child amounts to a proposal that he be prosecuted in the District Court as a criminal. A prosecution is an attempt to impose punishment. The Juvenile Court has no reason and m my opinion no right to assume that this attempt will fail. In the present case the attempt resulted in a sentence of thirty to ninety years.
*265“If the juvenile court cannot find within its purview the means to rehabilitate children and to contain them during the treatment -process, it is futile to look to the criminal courts for help. When the juvenile court washes its hands of a child, it throws him on the scrap heap of a prison and it gains nothing by employing euphemisms to describe this tragedy. * * * As long as the juvenile court practices the self-deception that allows it to believe in the existence of facilities ‘elsewhere,’ it will not face squarely the need to develop for itself the tools it requires to care for these children. [Sargent & Gordon, Waiver of Jurisdiction: An Evaulation of the Process in the Juvenile Court, 9 Crime & Delinquency 121, 125 (1963).]”
When this court affirmed appellant’s conviction, a majority took the position that it did not know why the Juvenile Court had waived jurisdiction over appellant but would trust to “the skill and experience of the specialist judge * * * ” Accordingly this court made no use of its statutory authority3 to review the “social records” of the Juvenile Court concerning the appellant. In effect, this court set up an irrebuttable presumption that a waiver of jurisdiction by the Juvenile Court is proper. This conflicts with the Juvenile Court Act,4 with our previous opinions,5 and with the court’s observation in this very case that waivers must not be “arbitrary or capricious.”
Though our reviewing authority is of limited scope, it exists. There can be no intelligent review of the Juvenile Court’s waiver of jurisdiction unless the reasons for it are stated on the record. Without the benefit of such statement, the child’s counsel -is duty-bound to pursue by inquiry and challenge every matter conceivably affecting the waiver decision in order to make a record for review. This will formalize and burden the Juvenile Court procedures and necessarily accentuate the adversary role of counsel.
. The District Court sentenced him to consecutive terms of five to fifteen years on each of these six counts, a total of thirty to ninety years, and committed him to St. Elizabeths Hospital until he is found sane, then to serve any remainder of his prison sentence.
. See Upshaw v. United States, 83 U.S. App.D.C. 207, 168 F.2d 167 (1948).
. District of Columbia Code § ll-1586(b) (Supp. Ill, 1964) provides that Juvenile Court social records “shall be made available * * * to any court before which the child may appear.” See Watkins v. United States, 119 U.S.App. -, 343 F. 2d 278, decided November 13, 1964.
. D.C.Code § 11-1553 (Supp. III, 1964).
. Green v. United States, 113 U.S.App.D. C. 348, 308 F.2d 303 (1962); Franklin v. United States, 117 U.S.App.D.C. 331, 336, 330 F.2d 205, 210 (1964). See United States v. Anonymous, 176 F.Supp. 325 (D.D.C.1959); United States v. Stevenson, 170 F.Supp. 315. (D.D.C.1959).