By Irwin Ironstone –
This is a comment by Irwin Ironstone after the comment the article from the ABA [American Bar Association] Journal summary follows the link address below in order to see their article.
About fifteen years ago, Judge Jack Weinstein, a judge in the federal court in Brooklyn, requested amicus briefs in an action called U.S. v Mascara – where some of the defendant’s did not speak English. At that time I wrote a minimalist note based upon linguistic theories about the impact of non-verbal communications and the difficulties that all individuals including English speakers have when interpreting a “new” foreign language called “court speak”
As an example – we all know what an objection is, but we may not understand “overruled, or sustained, or relevance, compound, or asked and answered, or many of the other parts associated with “objection”
We also do not understand how a judge can sustain (agree with) an objection without first hearing the objection. Many judges presume that lawyers know what they are objecting about. However, by agreeing with the objection before allowing the full objection is suggesting that the judge is mind reading or is making assumptions about why the attorney is objecting. This is one of those prejudices that exists in many courts when one of the parties is not an attorney.
Not only do foreigners need to have “court speak” interpreted but native English speakers need the same type of interpretation when they are self-representing (pro se). Without having an interpreter, there is no doubt that there is a denial of due process.
Our system of justice is –was broken and continues to be broken. What for example is a Farreta hearing, A Farreta hearing is when a judge interviews a non attorney to determine if he is competent and can represent himself. (It is a way for a judge to place a non-attonrey at risk because that non-attorney has questioned the effectiveness of the attorney who has been assigned to represent him. (In the streets, when a public defender is assigned, many believe that it leads to ineffective assistance and these lawyers are called pubic pretenders. ) Public defenders have so many cases assigned to them that there is no way for them to prepare properly. What are any of the terms used in any court hearing. e.x a motion in limine, stare decisis, and all the many other Latin terms and English terms.
In Florida there is something called a Nelson hearing that is about the justification and competence of an attorney who is assigned. What about ineffective assistance of attorneys – does one have to go over the many cases at the U.S. Supreme Court or in state courts in order to determine – what is considered ineffective in your state?
Please read the notes about why video recording is better and less expensive than the use of steno-typists – steno-typists make lots of errors and are so so expensive that the average person cannot afford the cost of a transcript. Yet the Judge Rodney Smith and the prosecutor in my Florida hearing opposed my motion for a better, less expensive way to record an administrative hearing in Florida.
Neither asked for or submitted a motion in limine to exclude any information prior to a hearing. One would thing that a prosecutor who has many years as a lawyer and as a judge should do this before a hearing not at the hearing. Yet, Judge Rodney Smith granted the motion to exclude the use of evidence from other actions in a new action. In my opinion, he never reviewed information submitted to him related to a crime fraud exception, or showed a prejudice against a pro se person.
In my opinion, the judge was biased and prejudicial. He refused to recognize that information about a person’s character is cumulative and is not only about what has happened in the last 2-4 years. In my hearing, he allowed two individuals to testify about my good character but denied me the right to present about 18 other letters from individuals who have known me for up to 45 years.
The judge was not acting as a judge but as someone who was taking revenge against a pro se litigant who had questioned him about his rulings. He refused to allow a non-attorney to assist me even after I said that I was qualified under the ADA. He refused to reconsider other orders and in a terse, one sentence ruling denied many of my requests. This judge was a minister of his own prejudices and I can question if he belongs on the bench. The ethics panel for judges does not consider this type of behavior sufficient to justify an investigation, but I do.
However, Judge Rodney Smith accepted a request to exclude information from a prior action under the doctrine of stare decisis. He refused to consider that good character is cumulative and not something that depends only upon the last few years. The judge did allow the Prosecutor to use information that was more than 20 years old but denied me the right to question that information even though the rule allows a person to defend themselves against all charges!
In any case, what do you do when judges know that a translator is required not only for a foreign speaker but for an English speaker who does not speak or understand a foreign language called “court talk.”
In Florida judges are instructed not to allow assistance to non-attorneys unless the person sitting next to them during a hearing or trial is a lawyer. This logic flies in the face of several Supreme Court determinations. However, many judges (like judge Rodney Smith) refuse to take judicial notice of higher authorities contrary to the U.S. Supreme Court.
by Irwin Ironstone
Social worker Vanessa Finley. Photo by Len Irish.
The article notes several instances related to the failure of courts to act appropriately by not appointing an interpreter. Please read the entire article but also realize that the majority of English speakers also need assistance because they do not speak “court speak.”
On a winter morning in New York City last year, a mother had to leave her 10-year-old son home alone so she could go to work. The bus that normally takes her child to a school for students with special needs failed to appear. Pema Tsomo, a 52-year-old single mother who came to New York from Nepal in 2002, didn’t want to lose her job as a dumpling cook. While she was at work, Tsomo’s son wandered out of the house and was picked up by the police. The authorities took him to a nearby hospital and then placed him in foster care.
Later that day, the police came to Tsomo’s home and arrested her for leaving her son alone.
Tsomo speaks fluent Tibetan and Nepali, but she doesn’t speak enough English to be able to understand a court proceeding without an interpreter. New York City employs 357 interpreters, who speak a collective 14 languages. However, the city doesn’t have a Tibetan interpreter on staff.
Instead, the court system had to hire an interpreter on a per diem basis. It took three days for a Tibetan interpreter to appear in court for Tsomo’s arraignment, according to Vanessa Finley, Tsomo’s social worker and the program coordinator at Adhikaar, a nonprofit in the Jackson Heights section of Queens.
During that time, Tsomo was held at the police precinct in the Elmhurst section of Queens and then transported several miles to Central Booking, in the basement of the criminal courthouse in the Kew Gardens neighborhood, where she spent the night in jail awaiting an interpreter.
Speaking through an interpreter provided by Adhikaar, Tsomo says she remembers being hungry and eating nothing but cold cereal and milk while awaiting arraignment. “There were a lot of other women around me,” she says. “They were crying.”
She was released, and the criminal case was adjourned in contemplation of dismissal. Her son also was returned home after several months, though a family court case remains pending, according to Finley.
It took three days for a Tibetan interpreter to appear in court for Pema Tsomo’s arraignment, according to Vanessa Finley. Photo by Len Irish.
Tsomo believes her ordeal, and her son’s, could have ended sooner if she had been able to communicate with the authorities. “I would have been better able to explain my situation and what had happened,” she says. “Maybe there would have been a solution.”
SPEAKING IN MANY TONGUES
Advocates around the country say that people like Tsomo, who need interpreters for less commonly spoken languages in the U.S., often face significant hurdles in court, including being detained longer than others while awaiting someone who can interpret for them.
But despite the court’s efforts, advocates say their clients often experience delays and other hurdles when awaiting interpreters.
“Historically, states did not prioritize this work,” says David Udell, executive director of the National Center for Access to Justice at Cardozo law school. He says that in the past, some state courts would simply post signs telling people to bring their own interpreters.
One reason for that approach is that it wasn’t always clear in the past that courts had an obligation to provide interpreters, Udell says.
JUSTICE STEPS IN
Nationwide, the attitude toward interpreters started changing about six years ago, when the U.S. Department of Justice took a more aggressive approach in enforcing a Clinton-era executive order stating that federal agencies and recipients of federal funds must make sure their programs are accessible to people who don’t speak English.
In 2010, then-Assistant Attorney General Thomas Perez spelled out in a letter to courts that failing to provide interpreters in all cases was a form of national origin discrimination. Title VI prohibits state agencies that accept federal funds from discriminating based on national origin.
Steven Brown, executive director of the American Civil Liberties Union of Rhode Island, says that before the state’s agreement with the DOJ, the interpretation situation was capricious, at best. Often, he says, judges would simply enlist people in the court gallery to serve as interpreters. “It was completely makeshift and not an appropriate or fair system of justice,” Brown says.
“Could anybody think that it’s fair for a parent to fight for custody of a child,” she asked, “in a proceeding where the parent doesn’t understand what’s going on?”
California, which has the highest proportion of non-English speakers in the country, also has some of the biggest challenges. An estimated 220 languages are spoken in Los Angeles County alone; the most common ones are Spanish, Mandarin, Tagalog (Philippines), Korean and Armenian, but Angelenos also speak others, such as Urdu (spoken on the Indian subcontinent), Gujarati (India) and Laotian.
Criminal defendants requiring interpreters are a priority, says Ann Ryan of New York’s Office of Language Access. Photo by Len Irish.
Each state has its own system of vetting court interpreters. In New York, for instance, interpreters who pass a multiple-choice test of English proficiency and knowledge of basic legal terms are eligible to take an oral interpretation exam, which currently is given in 21 languages, including Albanian, Bengali, Greek and Urdu.
This article originally appeared in the March 2016 issue of the ABA Journal with this headline: “Language Barriers: Justice moves slowly for those who need interpreters.”
Lawyer and journalist Wendy N. Davis lives in New York City.
Justice moves slowly for those who need interpreters
POSTED MAR 01, 2016 04:20 AM CST
THE ABA PUBLISHED AN ARTICLE IN THEIR NEWSLETTER BUT DENIED ME THE RIGHT TO COMMENT. BECAUSE OF THAT, I AM GOING TO SUMMARIZE THEIR ARTICLE AND PLACE MY COMMENT BEFORE THE SUMMARY.
BY WENDY N. DAVIS