dissenting:
Appellant stands convicted of armed robbery on the basis of the identification testimony of the two victims, husband and wife, who identified appellant in court and testified concerning their lineup identifications; the husband also testified about identifying appellant in a photo array. Appellant’s counsel was not present at the lineup; the photo array was not preserved; and the court’s finding of an independent source for the in-court identification is questionable at best, in view of the drastic inconsistencies between appellant’s actual appearance and the description initially given by the victims. While each of these problems is serious, I shall address briefly only the first, which in my view requires reversal of this conviction.
Trial counsel was appointed to represent appellant (and six other individuals) prior to his arraignment. Because appellant was also incarcerated on a parole revocation warrant, with no possibility of bond, the over-extended1 counsel saw him for only a few seconds and deferred a lengthy interview. Thus five days later counsel did not recognize his client, and accepted the police officer’s representation that appellant was not in the lineup and no witnesses had arrived. Counsel left. The witnesses arrived. The lineup proceeded without appellant’s counsel (and without substitute counsel). The witnesses identified appellant. They were permitted, over objection, to so testify at trial.
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court held that a defendant has a Sixth Amendment right to the assistance of counsel at a post-indictment lineup. Appellant Washington was denied that Sixth Amendment right. According to Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), testimony regarding the lineup identification should have been excluded. For as the Supreme Court noted:
Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup. [Gilbert v. California, supra at 273, 87 S.Ct. at 1957.]
Yet the majority holds that the admission of this testimony was harmless beyond a reasonable doubt. In this case, where the *1353only evidence linking appellant to the crime was the victims’ identification, I cannot agree with my colleagues that there is no “reasonable possibility” that the lineup evidence “might have contributed to the conviction.” 2
[W]e must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one.3
I respectfully dissent.
. Counsel for the Public Defender Service has represented in this court that PDS lawyers were severely overextended at that time because, due to a funding crisis, many private attorneys were refusing appointments to represent indigents.
. Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967), quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).
. Id. at 22, 87 S.Ct. at 827.