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A Georgia judge is cracking down on defendants who allegedly fake not knowing English to delay court proceedings, and now holds formal hearings to make them prove they need an interpreter. One of those hearings took place earlier this month, during which the judge spent nearly two hours questioning four Hispanic defendants to see how well they understood English. This new tactic has surprised many lawyers across the country, who say the need for a translator has typically been left to the discretion of an attorney. “In our experience, judges take the word of the lawyer. If I say I need one, I get one . . . .No questions asked,” said California attorney Ephraim Margolin, past president of the National Association of Criminal Defense Lawyers and a solo practitioner in San Francisco. Similar comments were echoed by lawyers and court officials in 20 states, where the protocol for assigning an interpreter typically involves a lawyer saying he or she needs a translator, and a judge saying OK. A budget-buster But Rockdale County Superior Court Judge Sidney Nation is asking questions, particularly because his public defender’s office has already overspent its annual $2,500 interpreter budget by about $300, and the year isn’t over yet. He’s also upset about an August trial involving four Vietnamese defendants who required interpreters at a cost of $514.38. According to Nation’s law clerk, Brian Caron, it was later discovered that three of the individuals could speak English, and two had graduated from American high schools. Nation also is following a recent Georgia Supreme Court order that recommends that judges hold hearings to determine if an interpreter is needed. Following that recommendation, Nation held a translator hearing on Oct. 12, questioning four Hispanic defendants facing burglary, assault and drug charges. He asked a variety of questions: When were you born? Where do you work? Who is your boss? By hearing’s end, Nation was convinced the four needed interpreters. Paul Stalcup, the chief assistant public defender in Rockdale County who represented three of the four defendants, said he supports Nation’s tactic. “Certainly, due process is worth it. And that’s what the judge is trying to do. He’s trying to make sure that everyone who is entitled to an interpreter gets one, but at the same time he’s trying to watch the pockets of the government,” Stalcup said. “But in a pinch, he’s going to go with due process, which he did.” Bill Hewitt, principal court research consultant for the National Center for State Courts (NCSC) who follows interpreter standards nationwide, said he knows of no judge in the country who holds formal hearings to determine whether a translator is needed. “I’ve never heard of any such thing and it isn’t necessary,” said Hewitt. Hewitt notes that the NCSC has a best-practices list regarding the use of interpreters in the courtroom. According to NCSC guidelines, “It is recommended that judges presume a bona fide need for an interpreter when a representation is made by an attorney or by a pro se litigant that a party or witness has limited proficiency in English and requests an interpreter.” And when a defendant does not request an interpreter, but the court suspects a language barrier, the NCSC recommends that courts “should conduct a brief voir dire to determine the extent of the disability.” Florida attorney Neal Sonnett, former chair of the American Bar Association’s Section of Criminal Justice who has represented numerous immigrants, said special interpreter hearings could be a waste of court time. With respect to the Georgia hearing that lasted nearly two hours, Sonnett, a Miami solo, said: “It seems to me it took a long time to get to due process. Is that a strain on judicial resources itself? I can understand a judge wanting to make sure that interpreters are not used or are not requested when they’re not needed, but getting into confrontational hearings regarding someone’s ability to understand English-down the road that could create problems.” But Rockdale County District Attorney Richard Read doubts that English-proficiency hearings will lead to unfair trials. He said while questioning might help weed out deception, judges will be more likely to err on the side of caution when it comes to approving interpreters.

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