Jacqueline Lowery v. Harold J. Cardwell, Superintendent, Arizona State Prison

Appellant was found guilty in a court trial of the crime of second degree murder in the Superior Court of Maricopa County, Arizona, on September 20, 1973, and was sentenced to serve not less than ten or more than twenty years in the Arizona State Prison. Her conviction was affirmed by the Arizona Supreme Court, State v. Lowery, 111 Ariz. 26 , 523 P.2d 54 (1974). She then sought habeas relief in the district court under 28 U.S.C. § 2254 . Her petition was denied without a hearing on the ground that the errors, if any, were harmless beyond a reasonable doubt under the doctrine taught by Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969). She appeals. We reverse.

THE EVIDENCE

A fair summary of the evidence reveals that appellant was a participant in an all night 4th of July celebration which developed into a drunken brawl in the early hours of July 5, 1973. Participants in the brawl at McGee’s drinking establishment in Phoenix aside from appellant were, among others, the decedent Houston, and witnesses, Childres and Phillips.

Childres, the state’s principal witness, testified he saw the decedent and appellant walk toward the station wagon in…