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 procedures
-- 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 codefendant, 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 witnesses could not be waived by his
counsel without petitioner's consent. Pp.
347 U. S. 5-8.
2 Ohio St.2d 36, 205 N.E.2d 911, reversed and remanded.
Page 384 U. S. 2
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, [
Footnote
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 was 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
codefendant, Mitchell, [
Footnote
2] and (b) by denying him the right to cross-examine any of the
State's witnesses who testified against him. [
Footnote 3] Master Commissioners appointed by
Page 384 U. S. 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 open court, while represented by counsel, petitioner agreed
that, although he would not plead guilty, he would not contest the
state's case or cross-examine its witnesses, but would require only
that the state prove each of the essential elements of the
crime."
2 Ohio St.2d 36, 40, 205 N.E.2d 911, 914. Upon this basis, the
State Supreme Court rejected petitioner's constitutional
contentions and ordered him remanded to custody. 2 Ohio St.2d 36,
205 N.E.2d 911. We granted certiorari to determine whether Ohio
denied petitioner's constitutional right to be confronted with and
to cross-examine the witnesses against him.
Brookhart v.
Ohio, 382 U.S. 810.
In this Court, respondent admits that:
"[I]f there was here a denial of cross-examination without
waiver, it would be constitutional error of the first magnitude,
and no amount of showing of want of prejudice would cure it."
This concession is properly made. The Sixth Amendment provides
that: "In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him. . . ."
And in
Pointer v. State
of
Page 384 U. S. 4
Texas, 380 U. S. 400,
380 U. S. 406,
we held that the confrontation guarantee of the Sixth Amendment
including the right of cross-examination
"is 'to be enforced against the States under the Fourteenth
Amendment according to the same standards that protect those
personal rights against federal encroachment.'
Malloy v. Hogan,
supra, at
378 U. S. 10"
See also Douglas v. Alabama, 380 U.
S. 415. It follows that, unless petitioner did actually
waive his right to be confronted with and to cross-examine these
witnesses, his federally guaranteed constitutional rights have been
denied in two ways. In the first place, he was denied the right to
cross-examine at all any witnesses who testified against him. In
the second place, there was introduced as evidence against him an
alleged confession, made out of court by one of his codefendants,
Mitchell, who did not testify in court, and petitioner was
therefore denied any opportunity whatever to confront and
cross-examine the witness who made this very damaging statement. We
therefore pass on to the question of waiver.
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,
315 U. S. 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,
304 U. S.
464.
In deciding the federal question of waiver raised here, we must,
of course look to the facts which allegedly support the waiver.
[
Footnote 4] Upon an
examination of the facts
Page 384 U. S. 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:
"MR. ERGAZOS [petitioner's lawyer]: That[']s correct, Your
Honor."
"THE COURT: Anything further?"
"MR. KANDEL: Nothing further."
"MR. ERGAZOS: The only thing is, Your Honor, this matter is
before the court on a
prima facie case."
"THE COURT: There being no . . . going to be no
cross-examination of the witnesses, so the court will know and the
State can't be taken by surprise, the court doesn't want to be
fooled and have your client change his mind half way through the
trial and really contest it, the State has a contest, we want to
know, in fairness to them, so they can put on complete proof."
"MR. ERGAZOS: I might say this, Your Honor, if there is any
testimony adduced here this morning which leaves any question as to
this defendant in
Page 384 U. S. 6
connection with this crime, I would like to reserve the right to
cross-examine at that time."
"THE COURT: That is raising another . . . that is putting the
State on the spot, and the court on the spot; I won't find him
guilty if the evidence is substantial."
"MR. ERGAZOS: We have a jury question in the court, undoubtedly
there will be . . ."
"THE COURT: Ordinarily in a
prima facie case . . . the
prima facie case is where the defendant, not technically
or legally, in effect admits his guilt and wants the State to prove
it."
"MR. ERGAZOS: That is correct."
"THE COURT: And the court knowing that and the Prosecutor
knowing that, instead of having a half a dozen witness on one
point, they only have one, because they understand there will be no
contest."
"A [Brookhart]
I would like to point out in no way am I
pleading guilty to this charge."
"THE COURT: If you want to stand trial, we will give you a jury
trial."
"A I have been incarcerated now for the last eighteen months in
the county jail."
"THE COURT: You don't get credit for that."
"A For over two months, my nerves have been . . . I couldn't
stand it out there any longer, I would like to be tried by this
court."
"THE COURT: Make up your mind whether you require a
prima
facie case or a complete trial of it."
"MR. ERGAZOS:
Prima facie, Your Honor, is all we are
interested in."
"THE COURT: All right."
(Emphasis supplied.)
From the foregoing, it seems clear that petitioner's counsel
agreed to a
prima facie trial. By agreeing to this
truncated kind of trial -- if trial it could be called --
Page 384 U. S. 7
we can assume that the lawyer knowingly agreed that the State
need make only a
prima facie showing of guilt, and that he
would neither offer evidence on petitioner's behalf nor
cross-examine any of the State's witnesses. The record shows,
however, that petitioner himself did not intelligently and
knowingly agree to be tried in a proceeding which was the
equivalent of a guilty plea, and in which he would not have the
right to be confronted with and cross-examine the witnesses against
him. His desire not to agree to such a trial is shown by the fact
that, immediately after the judge accurately stated that, in a
prima facie case, the defendant "in effect admits his
guilt," Brookhart personally interjected his statement that "I
would like to point out in no way am I pleading guilty to this
charge." Although he expressly waived his right to a jury trial, he
never, at any time, either explicitly or implicitly, pleaded
guilty. His emphatic statement to the judge that "in no way am I
pleading guilty" negatives any purpose on his part to agree to have
his case tried on the basis of the State's proving a
prima
facie case which both the trial court and the State Supreme
Court held was the practical equivalent of a plea of guilty. Our
question therefore narrows down to whether counsel has power to
enter a plea which is inconsistent with his client's expressed
desire, and thereby waive his client's constitutional right to
plead not guilty and have a trial in which he can confront and
cross-examine the witnesses against him. We hold that the
constitutional rights of a defendant cannot be waived by his
counsel under such circumstances. It is true, as stated in
Henry v. Mississippi, 379 U. S. 443,
379 U. S. 451,
that counsel may, under some conditions, where the circumstances
are not "exceptional, preclude the accused from asserting
constitutional claims. . . ." Nothing in
Henry, however,
can possibly support a contention that counsel for defendant can
override his client's desire expressed in
Page 384 U. S. 8
open court to plead not guilty [
Footnote 5] and enter in the name of his client another
plea -- whatever the label -- which would shut off the defendant's
constitutional right to confront and cross-examine the witnesses
against him, which he would have an opportunity to do under a plea
of not guilty. Since we hold that petitioner neither personally
waived his right nor acquiesced in his lawyer's attempted waiver,
the judgment of the Supreme Court of Ohio must be, and is,
reversed, and the case is remanded to that court for further
proceedings not inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
Petitioner was also convicted in the same trial of breaking and
entering and grand larceny. His sentences on these convictions were
made to run concurrently with his sentences for forgery and
uttering forged instruments.
[
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
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,
372 U. S. 235;
Blackburn v. Alabama, 361 U. S. 199,
361 U. S. 205,
n. 5.
[
Footnote 5]
Compare Rideau v. Louisiana, 373 U.
S. 723,
373 U. S.
726.
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,
Page 384 U. S. 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.
384 U. S. 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.
384 U. S. 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
Page 384 U. S. 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.
* 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 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. T o 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.