concurring.
I concur with the majority opinion because, for ex post facto purposes, I cannot perceive a meaningful distinction between Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1897), and this case. Thompson acknowledged that “mere modes of procedure” are not within the ken of the ex post facto clause, but it proceeded to hold that the right to be tried by twelve jurors “was regarded, at the time of the adoption of the Constitution, as vital for the protection of life and liberty,” and was enjoyed by the defendant at the time he committed the offense charge. 170 U.S. at 352, 18 S.Ct. at 623. Consequently, Utah’s “procedural” change to permit criminal trials before eight jurors was held to operate ex post facto to deprive the defendant of this substantial right.
I suggest, however, that the distinction between “mere modes of procedure” and *961substantial or vital procedural protections is a wobbly one under current Supreme Court jurisprudence. One other early case seems squarely to hold that a procedural change in state law violated the ex post facto clause. Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882) (change in the law applicable to guilty pleas, which exposed defendant to conviction for a more serious crime, and operated retroactively, violated ex post facto clause), A number of other decisions have found no ex post facto violation in retroactive “procedural” changes. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (change in role of Florida juries in death penalty cases); Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925) (defendant forced to undergo joint rather than separate trial for crime); Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (1901) (state allowed to appeal from intermediate court’s award of new trial to defendant); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898) (prior to second trial, law was changed to make circumstantial evidence admissible against defendant and he was convicted); Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896) (change in juror qualifications); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (change to allow convicted felon to testify as a witness against defendant).
There is little doubt that the defendant in several of these later cases was materially disadvantaged by the changes in criminal procedure which occurred after the commission of his offense. Consider the significance to a defendant of the right to a separate rather than joint trial with co-defendants, (Beazell) or of prohibiting testimony of a convicted felon (Hopt) or circumstantial evidence (Thompson) against a defendant, to say nothing of prohibiting the state’s appeal from the grant of a new trial to the defendant (Mallett). The Court emphasized, however, in Dobbert, that:
Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.
432 U.S. at 294, 97 S.Ct. at 2298.
If we are to continue to hold that “procedural” changes that do not affect the traditional ex post facto concerns — the definition of a proscribed or criminal act or its punishment or available defenses1 — nevertheless run afoul of the clause, I fear that the Supreme Court’s decisions offer little guidance for distinguishing among such procedural cases. In the absence of such guidance, I can see no overriding principle from which to disagree with the majority’s conclusion that this procedural change so substantially affected the defendant’s rights as to violate the ex post facto clause.
. In Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925), Mr. Justice Stone summarized the characteristics of an ex post facto law.
“It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."