Brookhart v. Janis/Dissent Harlan

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 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 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.