James G. Robideau v. B. J. Rhay, Superintendent, Washington State Penitentiary, Respondent

In Robideau’s trial in the Superior Court of King County, Washington, on a charge of robbery, error occurred of the type that we later held to be of constitutional dimension in Fowle v. United States, 9 Cir. 1969, 410 F.2d 48 . Robideau appealed to the Supreme Court of Washington, which held that there had been no error. State v. Robideau, 1967, 70 Wash.2d 994 , 425 P.2d 880 . Robideau then raised the same issue in the present petition for a writ of habeas corpus. The District Court denied the writ for the same reason as was given by the Supreme Court of Washington. Under our decision in Fowle, supra, it is now clear that there was constitutional error.

The position of the Attorney General now is that the error was harmless beyond a reasonable doubt. See Chapman v. California, 1966, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 . However, all that the District Court had before it was the opinion of the Washington Supreme Court, and it is clear from that opinion that the Court did not pass upon the question now raised for the reason that it found that there was no error. It also appears from our own inquiries that the Washington Supreme Court did not have before it a complete…