CERTIORARI TO THE SUPREME COURT OF OHIO.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas
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,*fn1 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,*fn2 and (b) by denying him the right to cross-examine any of the State's witnesses who testified against him.*fn3 Master Commissioners appointed by
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. 382 U.S. 810.
In this Court respondent admits that:
"If 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.
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 ...