Petitioner, who had been indicted for forgery and other offenses, waived a jury trial. Though petitioner insisted that he was "in no way . . . pleading guilty," his court-appointed counsel consented to a "prima facie" trial which is a procedure - conceded by the trial court to be the practical equivalent of a guilty plea - whereby the State makes only a prima facie showing of guilt and the defense does not offer evidence or cross-examine witnesses. After hearing some evidence, including an out-of-court alleged confession of a co-defendant, the trial court adjudged petitioner guilty and sentenced him. Petitioner brought this habeas corpus action in the Ohio Supreme Court claiming denial of his right under the Sixth and Fourteenth Amendments to confront and cross-examine witnesses. That court upheld the conviction on the ground that petitioner had knowingly waived such right by his counsel's consent to the prima facie trial. Held: Petitioner's constitutional right to plead not guilty and to have a trial where he could confront and cross-examine adversary witness could not be waived by his counsel without petitioner's consent. Pp. 5-8.
2 Ohio St. 2d 36, 205 N. E. 2d 911, reversed and remanded. [384 U.S. 1, 2]
Gerald A. Messerman, by appointment of the Court, 382 U.S. 899 , argued the cause for petitioner. With him on the brief was Lawrence Herman, also by appointment of the Court.
Leo J. Conway, Assistant Attorney General of Ohio, argued the cause for respondent. With him on the brief was William B. Saxbe, Attorney General.
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner, James Brookhart, while serving the first of three consecutive sentences of from one to 20 years imposed by an Ohio Court of Common Pleas upon convictions of forgery and uttering forged instruments, 1 brought this action for habeas corpus in the Supreme Court of Ohio. There is no question raised about that court's jurisdiction. Petitioner charged and contends here that all his convictions are constitutionally invalid because obtained in a trial that denied him his federally guaranteed constitutional right to confront the witnesses against him (a) by permitting the State to introduce against him an out-of-court alleged confession of a co-defendant, Mitchell, 2 and (b) by denying him the right to cross-examine any of the State's witnesses who testified against him. 3 Master Commissioners appointed by [384 U.S. 1, 3] the State Supreme Court recommended that habeas corpus be denied. They found that "petitioner although he did not plead guilty agreed that all the state had to prove was a prima facie case, that he would not contest it and that there would be no cross-examination of witnesses." This finding was not based on oral testimony but was based exclusively on an examination of the transcript of the proceedings in the trial court in which petitioner was convicted. The State Supreme Court accepted its Commissioners' view of waiver, stating that the transcript of the trial showed that:
In this Court respondent admits that:
The question of a waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law. There is a presumption against the waiver of constitutional rights, see, e. g., Glasser v. United States, 315 U.S. 60, 70 -71, and for a waiver to be effective it must be clearly established that there was "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464 .
In deciding the federal question of waiver raised here we must, of course, look to the facts which allegedly support the waiver. 4 Upon an examination of the facts [384 U.S. 1, 5] shown in this record, we are completely unable to agree with the Supreme Court of Ohio that the petitioner intelligently and knowingly waived his right to cross-examine the witnesses whose testimony was used to convict him. The trial record shows the following facts: Petitioner was arraigned January 29, 1962, without a lawyer, and pleaded not guilty to all charges against him. Two days later the court appointed counsel to represent him. Not able to make bond, he remained in jail until March 23, 1962, at which time he was brought before the judge for trial. There petitioner's appointed counsel told the judge that his client had signed waivers of trial by jury and wanted to be tried by the court. The judge in order to verify the waivers showed petitioner the two written waivers of trial by jury bearing his signature and asked him if the signature was his. Petitioner said it was. The following colloquy among the judge, petitioner, and his counsel then took place in open court:
[ Footnote 2 ] Mitchell pleaded guilty after being indicted with petitioner, was sentenced to an Ohio state reformatory, and although in the reformatory at the time of petitioner's trial, was not called to testify in person.
[ Footnote 3 ] The petition also charged that Brookhart had not been given adequate notice of the charges upon which he was tried because the indictment charging him with forgery and uttering forged instruments was amended at trial. And in this Court petitioner attacks his convictions on several other constitutional grounds. We [384 U.S. 1, 3] find it unnecessary to decide any of the additional contentions set out in this note.
[ Footnote 4 ] When constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record. See, e. g., Edwards v. South Carolina, 372 U.S. 229, 235 ; Blackburn v. Alabama, 361 U.S. 199, 205 , n. 5.
Separate opinion of MR. JUSTICE HARLAN.
I do not find the issue in this case as straightforward as does the Court. If the record were susceptible only of the reading given it by the Court, I would concur in the judgment. However, for me this case presents problems of two sorts.
First, the precise nature of the "rights" that were allegedly "waived" is not wholly clear. One view, adopted by the Court, is that petitioner's lawyer in effect entered a conditional plea of guilty for the defendant. Another interpretation, which is certainly arguable, would find the agreement between petitioner's counsel and the trial court to involve no more than a matter of trial procedure. I believe a lawyer may properly make a tactical determination of how to run a trial even in the face of his client's incomprehension or even explicit disapproval. The decision, for example, whether or not to cross-examine a specific witness is, I think, very clearly one for counsel alone. Although it can be contended that the waiver here was nothing more than a tactical choice of this nature, I believe for federal constitutional purposes [384 U.S. 1, 9] the procedure agreed to in this instance involved so significant a surrender of the rights normally incident to a trial that it amounted almost to a plea of guilty or nolo contendere. And I do not believe that under the Due Process Clause of the Fourteenth Amendment such a plea may be entered by counsel over his client's protest.
Second, given the need for petitioner's approval of the entry of such a plea, the further question arises whether petitioner did in fact agree to be tried in a "prima facie" trial without the opportunity to cross-examine witnesses. The Supreme Court of Ohio, on the basis of an examination of the record, found that petitioner "agreed that all the state had to prove was a prima facie case, that he would not contest it, and that there would be no cross-examination of witnesses." Brookhart v. Haskins, 2 Ohio St. 2d 36, 38, 205 N. E. 2d 911, 913. This Court, after an independent examination of the relevant portion of the same record, reprinted, ante, pp. 5-6, finds that petitioner "did not intelligently and knowingly agree to be tried in a proceeding which was the equivalent of a guilty plea . . . ." Ante, p. 7.
The decisive fact is of course the state of petitioner's mind - his understanding and his intention - when his counsel stated to the trial court: "Prima facie, Your Honor, is all we are interested in." My reading of the record leaves me in substantial doubt as to what petitioner's actual understanding was at the end of the pertinent courtroom colloquy, a doubt that is enhanced by the general unfamiliarity that seems to exist with this Ohio "prima facie" practice. * I cannot see how the [384 U.S. 1, 10] question can be satisfactorily resolved solely on the existing record. I would therefore vacate this judgment and remand the case for a hearing under appropriate state procedures to determine whether petitioner did in fact knowingly and freely choose to have his guilt determined in this type of trial. Failing the availability of such proceedings in the state courts, the avenue of federal habeas corpus would then be open to petitioner for determination of that issue.
[ Footnote * ] The Supreme Court of Ohio characterized the procedure as "unusual," 2 Ohio St. 2d, at 39, 205 N. E. 2d, at 914. At oral argument, the Assistant Attorney General of Ohio noted that he had been unaware of such a procedure, and that the practice could not be found in any statute or rules of court. The State explains the procedure as follows: "There is no statutory plea of nolo contendere [384 U.S. 1, 10] in Ohio in felony cases, therefore, when one is charged with a crime which he knows that he cannot successfully defend, but a plea of guilty will subject him to a penalty in a civil suit arising out of the same factual situation, he is without recourse to a plea of nolo contendere as is permitted in federal courts and certain other state courts. To circumvent this difficulty some Ohio courts have allowed, as was done here, the accused to enter a plea of not guilty and by arrangement require the prosecution to prove only a prima facie case." Brief, at 44-45, note 41. [384 U.S. 1, 11]