What is the current state of the law on retroactive retroactivity in criminal cases?

At least we may echo the statement of Mr. Justice Harlan in his dissent in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), at p. 260, 89 S.Ct. at p. 1040, that "the retroactivity doctrine is still in a developing stage." The confusion generated on the oral argument of these cases and in the briefs by the earnest efforts of able counsel, on the one hand, to persuade us that the application of the three-prong composite Linkletter test requires us to reverse the orders below, and, on the other hand, that its application compels us to reach the opposite result, has suggested that we seek the guidance of some more simple and less complicated approach.

We think these cases now before us can be disposed of by applying the simple and universal rule that a judgment in a criminal case in which the prosecution has offered and the record discloses no proof whatever of various elements of the crime charged has a fatal constitutional taint for lack of due process of law. As we said in our in banc decision in United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (2d Cir. 1964), aff'd, 381 U.S. 654, 85 S.Ct. 1750, 14 L.Ed.2d 623 (1965), the question of whether to grant retrospectivity in this type of case should be decided with "precisely the same operations of the judicial process as does the development of a body of decisional law in any other field." We must examine the principles involved in the constitutional ruling under consideration and decide whether, upon "considerations of convenience, of utility, and of the deepest sentiments of justice,"¹² the judgments of conviction were so "tainted by some fundamental unfairness within the orbit of constitutional law," United States ex rel. Angelet v. Fay, supra at 21, that we cannot allow them to stand.