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On a chilly February afternoon in the mountains of east Tennessee, Maria Gamboa was overseeing a crew of Mexican farm workers as they began preparing a 50-acre field for spring tomato planting. Her weathered face and hands spoke of her decades in the fields as she followed in the footsteps of her parents and grandparents. The next morning, Gamboa, born in Texas, but of Mexican descent, was in the courthouse in nearby Dayton, Tenn., to do some volunteer work-as a courtroom interpreter. In her effort to help out, Gamboa had unknowingly become part of a nationwide problem: a shortage of qualified court interpreters. Experts in the field say, nationwide, the impact ranges from delays to grave injustices. Gamboa was picking up the slack for her husband, Victor, who had complied with a request to interpret for Spanish-speaking defendants while he was in jail before and after pleading guilty to a drug charge. With Victor now serving a three-year sentence in state prison, Maria willingly filled the gap. A high school graduate, she said she learned the legal ropes sitting in court during her husband’s case. “She’s on call in case I need her,” said Judge Jim McKenzie, who sits in the historic courthouse where the Scopes “monkey” trial was held 79 years ago. Dayton has become more ethnically diverse from a steady influx of Mexican workers. When immigrants get into trouble, McKenzie said, a bilingual family member or friend may be used to interpret in court. If none is available, Maria Gamboa may get the call. If she is not available, McKenzie calls on any number of local people-from Spanish-speaking pastors to the local high school Spanish teacher to the owner of the local Mexican restaurant. McKenzie relies on this hodgepodge of untrained-and free-interpreters for arraignments, pleas and hearings, despite a 2002 order by the Tennessee Supreme Court said that courts must use state-certified or registered court interpreters. A noncredentialed interpreter is supposed to be used only after a good-faith effort to get a qualified one has failed. What McKenzie is doing “is a blatant disregard of a direct order from the Tennessee Supreme Court,” said Jerry Gonzalez, a civil rights attorney from Nashville, Tenn. Gonzalez has written and taught about the importance of using interpreters who have passed state-sanctioned language tests and been trained in professional ethics. It’s a rigorous course of study: Only 10% to 20% of the individuals who take state certification tests pass them. McKenzie said it is logistically too difficult to bring in one of the state’s 85 certified or registered Spanish-speaking interpreters from the nearest big city, Chattanooga, Tenn., about 35 miles away. Assistant District Attorney Will Dunn said it is too expensive, with the likely cost being $500 for an interpreter when the misdemeanor case may call for a $50 fine. Gonzalez and other lawyers and interpreters in Tennessee said that what is happening in Dayton is also happening, to varying degrees, in other parts of the state. Moreover, interviews with more than 50 attorneys, judges, court administrators and interpreters make it clear that the interpreter shortage and a failure to follow the rules is a problem in many places across the country. The U.S. immigrant population is swelling. The 2000 Census reported that 47 million people-18% of the population older than 5-spoke a language other than English at home, an increase of 15 million since 1990. Courts from Alaska to Florida, from New York to California, are struggling against bad habits, tight budgets and ignorance to provide qualified interpreters for defendants in criminal courts, the experts say. They say using unqualified interpreters is a blatant violation of a defendant’s constitutional right to a fair proceeding. Too often, the experts explain, defendants get inaccurate or incomplete translations about the charges they face and the evidence against them. “I always stress that this is an equal access issue, not a language issue,” said Patricia King, a federally certified interpreter in Richmond, Va., who trains and tests interpreters around the country. “It’s about putting the non-English speaker in the same shoes as an English speaker.” Police departments are part of the problem, because often they use Spanish-speaking officers to interpret during an interrogation-a conflict of interest that can lead to tainted confessions, defense counsel say. In the cities While rural areas like Dayton might have no credentialed interpreters, more populated areas might have anywhere from a few to scores on staff. Often that is not enough. For example, New Bedford, Mass., which has two staff interpreters for 10 or so courtrooms, has cases delayed for at least a few hours a half-dozen times a week as interpreters shuffle between courtrooms, said Presiding Judge Bernadette Sabra. The same can be said for the largest cities. Chicago has 29 staff interpreters, but could use 20 more; Los Angeles relies on a list of 725 qualified interpreters, including 400 Spanish speakers, but could use another 40 who speak Spanish, interpreter supervisors in both cities said. New York City has 17 interpreter positions for 36 criminal courts at 100 Centre Street in lower Manhattan, a sufficient number as long as three vacancies are filled, said Cecilia Solano, who oversees interpreters in the building. But defense counsel in New York, as elsewhere in the country, say interpreters have a wide range of skill levels. Too often, an interpreter rattles off a short translation after a client has given a much longer response, said David Kapner, a supervisor with the public defender system in New York City. Ian Weinstein, a professor at Fordham University School of Law in New York who supervises a criminal law clinic, said sometimes no interpreter is available when he needs to consult with a client before a hearing. “As I see it, the interpreters are way too busy,” he said. In worst-case scenarios, hearings, pleas and trials can be delayed, sometimes for months, as lawyers and courts wait for qualified interpreters, leaving defendants to languish in jail. In Orleans County, N.Y., near Rochester, Jesus Castillo sat in jail for 3 1/2 months in 2003, unable either to talk meaningfully to his attorney or understand the vehicular homicide charge against him, according to two public defenders and Castillo’s girlfriend. “He had a right to go before a grand jury before they indicted him to explain what happened,” said Gary Horton, a public defender in neighboring Genesee County whose office investigated the matter. “And if he never talked to an attorney, I doubt that he knew that.” Castillo’s new attorney, Orleans County Public Defender Sanford Church, learned of his client’s earlier situation from a reporter and later confirmed it. “I am disappointed that it happened,” he said. “I would say there is a problem getting interpreters out to local courts.” Joseph Cardone, the district attorney for Orleans County, denied that Castillo’s rights were violated, saying Castillo was aware of the charges against him and that he spoke English. But the public defenders and the girlfriend, Maria Vargas, said Castillo’s English is not good enough for him to proceed without an interpreter. Tracking a problem No one knows how often the lack of a qualified interpreter causes a wrongful conviction. Appeals are difficult, if not impossible, because there rarely is a record of the communication between the defendant and the interpreter, and defense counsel don’t know what is being said between the two because typically they don’t speak the foreign language involved. According to an article to be published in the spring issue of the Harvard Latino Law Review, attorneys are not sufficiently educated about the issues involving interpreters-and a client’s right to have one-in order to make timely objections and to preserve a proper record for appeal. As a result, the study concluded, most convictions appealed on the grounds that there was no interpreter or that he or she was of poor quality are affirmed. Occasionally, there is a reversal, as in a murder case in Kentucky, where a judge’s microphone picked up what was said by an interpreter to a defendant. An interpreter hired as an expert for the appeal concluded that, at times, “the interpretation was nonsensical.” Other recent cases or findings highlight the problem: In Palm Beach County, Fla., the U.S. Department of Justice is investigating the case of Petrona Tomas, a 16-year-old Guatemalan girl who was charged with first-degree murder in the death of her newborn child. According to her supporters, the police and the courts failed to supply her with a proper interpreter. Police officers questioned her in Spanish. Her supporters say she speaks only the Mayan dialect Kanjobal. A grand jury used the police interviews as grounds for the murder charge. During her initial court hearings, she did not have a Kanjobal-speaking interpreter, her supporters say. A suit filed by Mexico against the United States in the International Court of Justice claims that the United States has violated the rights of Mexican nationals now on death row. Among other things, Mexico says that U.S. courts “routinely provide grossly inadequate” interpreter services. News stories from the past two years describe shortages of courtroom interpreters in at least 20 states, including Arizona, California, Colorado, Florida, Georgia, Indiana, Maryland, Massachusetts, Michigan, New York and Ohio. Experts say the number of states with shortages is probably much larger. “It’s a very big problem coming from two directions,” said William E. Hewitt, the chief administrator of the Consortium for State Court Interpreters and a recognized expert on the subject. “The scarcity of qualified people and the lack of understanding in the criminal justice system about the import of having a qualified interpreter. The lack of understanding contributes to the scarcity of interpreters because the consumer demand for the resources is not where it should be.” In January, attorney Duard D. Bradshaw of Akron, Ohio, got a call from a judge’s chambers asking if he could represent a defendant charged with drug trafficking. One problem was that Bradshaw no longer practices criminal law. The other problem was that Bradshaw was being asked to take on the case because the court wanted him to double as the interpreter. “The judge wanted me to represent this individual because I speak Spanish,” explained Bradshaw, a partner at Akron’s Roderick Linton and immediate past-president of the Hispanic National Bar Association. He told the caller that the judge needed to do the proper thing and hire a trained interpreter as well as a criminal defense counsel. Some appeals succeed Appeals based on bad interpreters sometimes prevail. Perhaps the most often cited case is U.S. ex rel. Negron v. State of New York, 434 F.2d 386 (1970), which reversed a murder conviction because the defendant was denied an interpreter. The court held that more than just the defendant’s Sixth Amendment right to confront adverse witnesses was violated. “Consideration of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial,” the court held. More recently, the case of Mohammad Amini highlights what experts say is a recurring problem: Ignorance by lawyers and judges about the differences among dialects and languages. Amini was charged in Douglas County, Colo., a Denver suburb, with sexually assaulting a child. He is a Dari-speaking native of Afghanistan. With no objection from his attorney, Amini was appointed an Iranian Farsi-speaking interpreter for pretrial hearings and trial. Reversing the conviction in January 2003, the Colorado Court of Appeals concluded that it was unclear whether the defendant was able to make a “knowing, voluntary and intelligent” waiver of his right to testify. The court said that not only did the Farsi interpreter speak a language different from that of the defendant, but that the interpreter had difficulty understanding English himself. After the reversal, Amini pleaded guilty to a misdemeanor charge of harassment and was sentenced to one day in jail. He had already served three years and nine months. Paul Grant, Amini’s appellate counsel, said the interpretation problem came to light only because the defendant’s daughter, who also spoke Dari, overheard the interpreter speaking to her father, could not understand what he was saying and raised the issue after the trial. “They didn’t know they had a right to object to an interpreter,” Grant said. A Kentucky judge’s reversal of the murder conviction of Santos Pagoada in October 2001 highlighted the dual responsibility of defense counsel and judge to make sure that the interpreter is adequately trained. At Pagoada’s trial, in Frankfurt, Ky., in 1998, an inexperienced interpreter was used, without the interpreter’s credentials being questioned by anyone involved in the trial. “Out of ignorance, all assumed that one who speaks Spanish or is born in a Spanish-speaking country can interpret,” wrote Judge Mary C. Noble, whose reversal was a case of first impression in Kentucky. “This case reveals that this is a false assumption.” Certified interpreter Isabel Framer, hired by Pagoada’s appellate counsel, made the finding that, “At times the interpretation was nonsensical.” During a sidebar at trial to make sure the defendant understood his right to testify, according to Framer’s account in the newsletter for the Community and Court Interpreters of the Ohio Valley, the trial judge said, “Here is what he needs to know. If he is, if he believes that he can convince a jury that he was defending himself, he needs to make that decision as to where enough has been said, or if he needs to say more.” The trial interpreter’s translation: “She says that the [unintelligible] are going to make that decision. If you think that they have heard a lot of evidence to defend you, that you were defending your life, then that’s fine, but if not, then you should give them an explanation why you think you were, you were defending your life. Do you think that they did hear lots of evidence to say, of yes, this guy was defending his life?” The judge: “All right then, I think that whether he accepts it or not, it has been explained to him as adequately as it possibly can be.” “The judge had no idea the interpreter was butchering everything,” said Assistant Public Advocate Karen Maurer, Pagoada’s appellate counsel. “If you don’t speak the language, you have no idea if the interpreter is doing it right or wrong.” On retrial, Pagoada was convicted of a lesser charge and deported, instead of having to serve the 40-year sentence he received after his first conviction. In Tennessee, Knoxville defense attorney Mike Whelan, who speaks Spanish and English, said that he is often put in the awkward position of having to interpret for his client because the court is reluctant to hire qualified interpreters. Whelan knows this dual role is a violation of the code of professional responsibility. “It is a fairly untenable situation, but there is not much you can do about it,” Whelan said. “You can’t let people sit in jail.” In addition, he said that in September he represented a defendant in Dayton charged with vehicular homicide. He said he observed a jail inmate whose name he did not know interpreting in court for other defendants. “[W]hen he was translating and got to the legal terms, he just skipped them,” said Whelan. Once he heard the inmate tell defendants, “You just want to plead guilty,” he said. In the case involving his client, he said, one of the local pastors was assigned to interpret. “This guy was worse than the inmate,” he recalled. “He didn’t know half the legal terms. I stopped him and explained to the judge that I’d take my chances with the board of professional responsibility and translate for my client.” A spokeswoman for the Tennessee court system, Sue Allison, said that despite what is going on in Dayton, the state has made significant progress since it began certifying interpreters in 2002. She said judges are undergoing training about the importance of using qualified interpreters. “It isn’t at all that the court system in Tennessee is unaware or disinterested,” she said. “It is absolutely committed to getting as many interpreters as possible credentialed. But it takes time.” Signs of progress As Allison noted, there has been progress. For decades, federal courts have been the gold standard, requiring since 1978 the use of qualified interpreters in all federal criminal cases. In 1995, state courts began to organize under the auspices of the National Center for State Courts. With Minnesota, New Jersey, Oregon and Washington leading the way, the Consortium for State Court Interpreters was started. The 30 member states, including Tennessee, have access to standardized certification tests in 10 languages, including Spanish, Russian, Vietnamese, Arabic and Cantonese. The standards call for interpreters not only to be bilingual, but also to understand legal terminology, to translate while the person is talking and to receive state training in rules of ethics. For example, they must understand that an interpreter must not give legal advice, and they must avoid conflicts of interest. When Oregon joined the consortium, it had no organized court interpreter program, and interpreter “abilities ranged from excellent to people pulled off the street,” said James Comstock. He is the program manager for Oregon’s Court Interpreter Services, which now has certified 82 interpreters statewide, including 10 staff interpreters, and has the ability to find interpreters who speak so-called “exotic” languages in other consortium states. Hewitt, the consortium administrator and principal research consultant at the National Center for State Courts, said most of the 30 member states now have some kind of certification process. The few that don’t, including Ohio, Hawaii and Wisconsin, are working toward it. He estimated that half of the 30 states have court rules or a state law requiring courts to use certified interpreters if one is reasonably available. But Hewitt is aware that even in states with such rules, there still are significant problems. “I think the fundamental cause is ignorance,” he said. “It’s ignorance of the complexities involved in doing the work, compounded with the attitude we can muddle through this case” without having to spend money for interpreters. In a further effort to reverse this type of thinking, however, the Conference of Chief Justices passed a resolution in July 2003 urging Congress to establish a national program to assist state courts in providing court interpreter services. In October, U.S. Senator Herbert Kohl, D-Wis., introduced a bill that would offer grants totaling $60 million over four years to assist states in developing and implementing court-interpreter programs. The bill, S.B. 1733, is in the Senate Judiciary Committee. The Justice Department is working to make sure states are providing qualified interpreters where the law requires it. If a state body receives federal money, it is required to provide, under Title VI of the Civil Rights Act of 1964 and a 2000 executive order issued by President Bill Clinton, equal access to individuals with limited English proficiency. Aside from Justice Department investigations into matters like the Tomas case in Florida, the department’s Civil Rights Division is spreading the word about the importance of using qualified interpreters through an instructional video and brochures. Judge Lynn W. Davis, who co-authored the study to be published by the Harvard Latino Law Review and who serves on the bench in Provo, Utah, called for programs to teach lawyers how to recognize interpreter problems and to make timely objections during trial, in order to preserve a record for appeal. Hewitt said the biggest obstacle to further progress, now that there’s increased awareness of the problem, is to get people in the criminal justice system to understand that resources are needed to improve the system. The assistant DA in Dayton saw it somewhat differently. “If they started enforcing the immigration laws, there would be no problem,” Dunn said, complaining that if an interpreter is hired now, “the taxpayers, who are legal citizens, are going to pay the $500 cost.”

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