Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he'd received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a "simple little case," that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to "expend[ ] a tremendous amount of effort" on what the prosecutor characterized as a "silly issue." He ended his e-mail by asking, "Have you been hanging out with Carl Gunn?"
Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as "simple little cases," litigating issues despite the government's view that they might be "silly," and "expend[ing] a tremendous amount of effort" on behalf of clients who have the full weight of the government thrown up against them – often with the government's view that the case is open and shut, or "simple" – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it's a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in "A Man for All Seasons" in response to his future son-in- law's exclamation that he'd "cut down every law in England" to get at the devil: "Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?"
I'm proud if "hanging out with Carl Gunn" means not just accepting the government's view that cases are "simple" and "little," that issues are "silly," and that we shouldn't expend resources on our clients. Hence the name of this blog: "Hanging out with Carl Gunn." I hope to offer some thoughts and ideas that the government may think are "silly," but I respectfully don't; that you can use in cases that the government may think are "simple," but aren't so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a "hanging out" together, there might be guest bloggers from time to time with their "silly" ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.
So You Think You Speak Spanish, Officer? Well, Give Us a Sample Then.
- Little things in a translation can make a big difference.
- Translations by an intermediary agent are admissible non-hearsay only if the agent is sufficiently skilled in the foreign language.
- Subpoena the intermediary agent translator to produce voice exemplars in the foreign language so you can analyze his or her language skill.
NOW THE BLOG:
The Federal Public Defender's office in our district recently circulated some thoughts from DFPD Davina Chen that were triggered by the recent Ninth Circuit opinion of United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012). An issue which drew a dissent from Judge Berzon (actually, a concurrence in the result, because she concluded the error was harmless), was whether a Spanish-speaking agent’s translation of the defendant’s statements during an interrogation by another agent were properly treated as the defendant’s statements rather than the translating agent’s hearsay. Prior circuit law holds that an agent’s or other person’s translation of the defendant’s statements may be treated as the defendant’s statements if the other person is acting as just a "language conduit."
United States v. Garcia, 16 F.3d 341, 344 (9th Cir. 1994);
United States v. Nazemian, 948 F.2d 522, 526-27 (9th Cir. 1991).
The case law does state that this has to be judged on a case-by-case basis, however, and establishes a four-factor test that was reiterated and applied in Romo-Chavez. The factors are (1) which party supplied the interpreter (for example, a defendant might bring his own interpreter when meeting with an undercover agent or informant); (2) whether the interpreter "had a motive to mislead or distort"; (3) the interpreter’s qualifications and language skill; and (4) "whether actions taken subsequent to the conversation were consistent with the statements as translated."
Romo-Chavez, 681 F.3d at 959. It’s the third factor that Davina’s e-mail and this blog are about.
In particular, we should think about ways to challenge the claims of an agent – or other non-professional translator – that he or she speaks the defendant’s language "fluently" and perfectly understood the defendant, was perfectly understood by the defendant, and perfectly translated what the defendant said. Davina suggested in her e-mail that one might want to ask for pretrial voir dire regarding the language abilities of the officer or other individual who interpreted. An additional approach is suggested by the description in the Romo-Chavez opinion of the defense attorney’s cross-examination, during which the attorney apparently gave the agent a "test" of sorts, by asking him to recite the Miranda rights in Spanish, translate some sample sentences, and translate a sample document.
See Romo-Chavez, 681 F.3d at 960;
id. at 963-64 (Berzon, J., concurring in result).
Both the general issue and the opinion’s description of the "test" given by the defense attorney on cross-examination brought to mind a motion I filed in a couple of cases some years back, which made me want to write this post. I had two cases with relatively unusual languages – Korean and Turkish – that aren’t as common as Spanish and aren’t even from the same language family as English, and I wondered whether the interpreting officers (and, in one instance, an available civilian) who had been dug up were really as good as they and the government wanted to suggest. I then thought about the cases holding that defendants can be compelled to give handwriting exemplars, fingerprint exemplars, and voice exemplars, and thought to myself that sample translations from the agent were really just a more specific type of voice exemplar.
So I wrote up an application for a pretrial subpoena under Rule 17(c) of the Federal Rules of Criminal Procedure – which I filed in those two cases and which is linked here. I have a general recollection the application was denied in my cases, but I was dealing with relatively government-oriented judges, and other judges might rule differently. The issue subsequently was fully or partially mooted in both cases – in one case because the defendant’s statement ended up getting suppressed or excluded on other grounds and in the second case because I got exemplars by asking the agent to read the Miranda rights in Turkish during a suppression hearing, convincing the judge that that had to be tape recorded since the court reporter wouldn’t be able to transcribe it, and then convincing the judge that the recording was a public record of court proceedings to which I was entitled just the way I would be entitled to a transcript. (Perhaps that’s another idea on how to approach this issue.) Regardless of how the motion was ruled on in my cases, the argument seems viable and one additional way to approach this issue. Having recorded exemplars prior to trial or a hearing has the advantage of giving a trained language expert time to listen to them much more carefully.
As a side trip into a "war story" and as an example of how important this might be – though maybe you need no convincing – I’d offer the following experience from a trial I participated in some 20+ years ago, where even certified court interpreters disagreed about a translation. There was testimony about a statement our client made about a housemate who was making false documents and her statement was translated as an admission that her housemate "[INSERT VERB] her how he did it." The Spanish verb which was used was the verb, "ensenar." My Spanish-speaking cocounsel had told me this meant "show," and we could live with that, because our defense was mere presence and being "shown" how someone does something doesn’t mean one is participating. But the court-certified interpreter at trial translated the word as "teach," which was far more problematic, since being "taught" to do something usually means you plan on doing it yourself after you learn how. We then scrambled to find another court interpreter to call as a defense expert, and she testified that (1) the word could actually mean either "teach" or "show," depending on the context and (2) in our context it meant "show."
This war story illustrates how an untrained person who thinks he speaks – and maybe even does speak – a foreign language fluently – here, my cocounsel – might get a word wrong in a very important way, and how there can be nuances which even trained professionals can disagree about. And this was in a language that has a much better correspondence to English than many languages. I recall a group of cases we had at the Federal Public Defender’s office in which our clients were Sherpas from Nepal and our court’s head interpreter explained the languages are so different that it was impossible for any interpreter to do anything more than summarize or paraphrase.
By the way, as Davina pointed out in her e-mail, Judge Berzon also suggested in her Romo-Chavez concurrence that there’s potential for en banc review in this area. The reason Judge Berzon gave is that the cases the
Romo-Chavez majority followed might no longer be good law after the new Confrontation Clause standard established in
Crawford v. Washington, 541 U.S. 36 (2004). This might be something worth thinking about if they don’t go en banc in
Judge Berzon’s in-depth analysis of the particular evidence in Romo-Chavez also provides a nice example of how you might create and argue a challenge to an interpreter’s language ability. It’s a clear error standard of review, so the fact that the district court judge’s decision got upheld in
Romo-Chavez as within his discretion doesn’t mean you couldn’t convince another district judge to rule differently.
In any event, be careful about just accepting a foreign-language-speaking agent’s translation of what your client said and think about different ways to challenge it. The agent may not be as fluent as he or she would like to think.
Carl Gunn was an Assistant Federal Public Defender for over 28 years from 1983 through 2011, mostly in the Los Angeles office, but with additional three-year and four-month stints in Tacoma, Washington and Anchorage, Alaska, respectively. During much of his tenure, he supervised, trained, and/or mentored newer attorneys. He is now of counsel at Kaye, McLane, Bednarski & Litt, where he specializes in federal criminal appellate practice and motions and sentencing support. He has a reputation for raising issues that lead prosecutors to make comments such as the one discussed in the far left column of this blog. Those comments also reflect prosecutorial concern about the successful outcomes raising such issues can produce – whether it's getting an acquittal, getting charges dismissed, or getting a much lower sentence or favorable plea agreement. For more on Mr. Gunn and the other attorneys at Kaye, McLane, Bednarski & Litt, Click Here.