I recently read this story on Slate and the Chicago Sun-Times. The title is evocative enough: “Without a translator to help rape victim testify, alleged rapist walks free and and finds another victim.” That’s basically exactly what you need to know.
Here’s the gist of it. This all took place in Cook County, right here in Illinois. A Spanish-speaking woman was allegedly raped by one Luis Pantoja. At the preliminary hearing, complaining witnesses have the chance to testify. All of the prelims I’ve done have involved cops, so they’re the ones I’ve cross-examined, but in sex cases it’s very often the complaining witness (that is, the victim) who testifies and is then cross-examined by the evil defense attorney.
Then the judge decides if there is a finding of probable cause. If so, the State returns an Information, which is a charging instrument. If not, the case is dismissed, but even if you win at prelim, there is often a good chance that the State will then come at you again and charge you for the same crime via Indictment, another charging instrument that requires that they convene a secret grand jury.
So in this case, a Spanish-speaking woman was testifying about her alleged rape at the hands of Luis Pantoja. English wasn’t her first language and it seemed clear to many that she would have benefited from the services of an interpreter. A Cook County judge decided that the interpreter wasn’t needed, proceeded with the hearing, and ultimately found that there was no probable cause.
Pantoja walked, and then allegedly raped another young woman, this time a fifteen-year old. That case is currently pending in Cook County. In fact, I think he was just arrested over the Polar Vortex weekend.
The Sun-Times has run a piece on it and has a lengthy transcript from the prelim, if you want to check it out.
I’m just saying, generally, when things like this happen – when a judge lets someone out on bond and they commit another crime, when a judge sentences someone to probation and they commit another crime, when a judge finds no probable cause and the person commits another crime – that judge tends to get called into his or her boss’s office and gets reamed. I’ve seen it happen (well, not literally, obviously) with some of the judges I appear before regularly.
So the judge in question is definitely catching some heat for her decision, trust. Just in case anyone was curious.
But that’s not what I want to discuss here. I wrote this post to discuss the tremendous importance of interpreters.
Not just to the Defense, but as we see here, to the State.
But who am I kidding? Forget the Defense and the State. Interpreters are important – vital – to the commission of justice in general. No matter how many flaws there are in our current justice system (more like INjustice system, hurr hurr hurr, we’ve all heard that a million times and it’s totally true).
This isn’t the time to be cynical about it. If we’re talking about justice, we’re talking about equal access to that justice (HAHAHAHAHA). Okay, fine. We’re actually talking about equal access to the process that is supposed to carry out justice (HAHAHAHA oh god now this is just getting depressing). We’re talking about people having equal access to that court system, and interpreters are vital to that. How can you have your day in court if your English isn’t good enough to express your thoughts, to ask your questions, or to even understand what is going on and what your rights are and what the judge is saying?
As a defense attorney, I enlist the services of skilled interpreters quite often. Most of our clients that need interpreters are Spanish-speaking, but we’ve also had to hire a Russian interpreter during my 1 year and 1 month with the firm.
We had a client that was in state custody, and he barely spoke a handful of words in English. His wife and sister spoke a little more than he did, but not very much, either. We definitely couldn’t sit around a table and have a meaningful conversation about his case. His brother-in-law, however, had a thorough command of the English language and, when we had to have emergency meetings, he would serve as the informal translator. It was a cumbersome process and I got the feeling that no one really got as much out of the meeting as we could have.
So I remember, when I was at 26th&California for a bond hearing one day, I made contact with an interpreter from the Cook County Interpreter’s Office or whatever they’re called. Lucky for me, she freelanced/moonlighted, too, so I was able to secure her for all of our meetings with the client’s family when they came to the office.
And when we went to see the client, having an interpreter handy was excellent because you could actually have a meaningful discussion. The Cook County interpreters are incredibly skilled not just in the languages they know, but the legal terminology in the languages they know. They don’t need to use synonyms for extradition or consecutive versus concurrent. They know those words in Spanish (or any other language). It’s highly likely that the client knows those words – in Spanish.
There was a case I was aware of (I wasn’t on the case), in Cook County, where a defendant’s mother testified. She was a material witness to the crime alleged. SHE WAS THERE WHEN IT HAPPENED. She was the only person other than the defendant and the victim who was there when it happened. And the victim was dead.
English was clearly not her first language. It was Greek. When the State asked her questions at trial, she didn’t know what they were asking half the time. She said, I don’t know, I don’t know what you’re asking, what does that mean, I’m not sure what you’re saying. There was never an interpreter provided.
In this case, a lot of the blame rests with the defense attorney. I’d argue that was ineffective assistance.
First of all, prep your damn witness. My boss trained me in how to prep witnesses. I saw him do it in my first trial. He had all the witnesses schedule appointments at the office. He went through a very loose direct examination. Not scripted, and not even everything he’d have asked on the stand. But he wanted them to get a sense of the rhythm of direct exams. He wanted to help them get comfortable. He wanted to impress upon them the importance of listening to his question, of letting him finish his question, and of never speaking before he was done speaking.
Then he asked them what areas of their testimony they were worried about. Those areas then became pointed sample questions for cross-examination. If they worried that the State would ask them about the steps they’d taken during the real estate closing (this was for a mortgage fraud, ID theft, fraud of a financial institution in excess of $100,000 case, and was indeed criminal and not just a civil real estate case), then my boss and I would exhaust that topic, glaring at them and barking out derisive, sneering questions meant to illustrate the witness’s ineptitude. They’d learn how to handle those exaggeratedly hostile questions – they’d learn how to handle their emotions, not get scared, not buckle on the stand, and keep going.
If it’s a really big case or there are complications, we have more than one in-office prep with witnesses that are not the defendant. (The defendant gets several preps. At least two or three, and as many as the defendant feels he needs to feel comfortable.)
On the day of trial, when the witnesses are gathered, we do another mini-prep. We calm them down, we explain the procedure, we do a very very loose direct with the main themes, we see if they have any questions or fears about what they’re going to be asked on cross, we inform them that they are not obligated to talk to the State but that the State will ask, and we tell them to hang tight and hold a good thought for us all.
So for this trial, while my boss did all the initial preps, he let me handle part of the trial day prep. I wasn’t responsible for the prep, really, but I had already gotten a good lesson in how it was done, and I got to follow his lead and watch him in action.
For our third trial together, my boss was out of town the week before trial, so I was prepping more than a dozen Defense witnesses BY MYSELF. I was shitting my pants as I did all the telephone conferences (our schedule didn’t allow us to schedule office meetings with all of the witnesses), but I knew what to do because my boss had taught me. So I did it.
And on the day of trial, I gathered all my witnesses together in one of the conference rooms and, as my boss stood behind me at my shoulder, I conducted the trial day prep. And at trial, I directed and redirected all eight of the Defense witnesses that weren’t our client.
Prep your damn witness. It’s not hard.
The other reason I blame the attorney is, if any of my client’s witnesses needed an interpreter, you can bet your ass I would have made the court aware of the need for an interpreter at trial. And if there wasn’t one, you can bet your ass that on trial day, I’d be motion in limine-ing that, saying that I wanted a continuance if an interpreter wasn’t available because not having a translator for my witness interfered with my client’s sixth amendment right to a fair trial. And if that motion was denied, you can bet your ass that at trial, I’d be objecting right and left. I’d make my record that I believed that the witness needed a translator because he or she wasn’t understanding the questions and that was a violation of my client’s sixth amendment rights. And when the trial was over, you can bet your ass I’d include all of that in my Motion for a New Trial, twisting the judge’s arm with an issue that the appellate court might slap him with if my client appealed.
In that case that I’m talking about – the one I know of but wasn’t involved in – the defendant’s mother needed an interpreter that spoke Mandarin. The attorney didn’t request one, to my knowledge. During trial, he never objected. It did not appear in his Motion for a New Trial, which I pulled from the file and read. (And which was shit. I can write a better Motion for a New Trial in my sleep. That’s not bragging – it’s accurate reporting.)
In that case, an interpreter was needed, at trial, and was not provided.
And I blame the State and the Judge, too, to be sure. SOMEONE should have said, “Hey, wait a minute, this lady doesn’t seem to be understanding what we’re talking about. Maybe we need someone who speaks her language. Derp dee derp dee deedily derp.”
The federal government is a bit better on the subject, I think.
We had a federal client in custody that was provided an interpreter in court, even for an arraignment or a prelim that was ultimately superseded/circumvented/whatever by indictment, where there’s really only a few sentences being said on the record. He was always provided an interpreter because, hey, it’s the feds. They tend to be really on the ball with that sort of thing.
There’s a but. Sadly, there’s a but.
The budget cuts – especially when Congress was playing their game of chicken and the government shut down and slashed budgets right and left – affected federal interpreters tremendously.
I have a friend who is a federal defender in Chicago, the Northern District of Illinois. She was telling me about some of the troubles their department faced because of the cuts.
Sentencing on the federal level is a strange beast. It’s much different from state sentencings, which I feel are much more ‘fast and loose,’ if that makes sense. I can play around a bit more with state sentencings. They feel more … real. Somehow. I don’t know, I’m probably crazy.
But at the federal level, this is what basically happens: your client is investigated and gets contacted by the feds. Your client hires you. You negotiate with the feds and see what they’re willing to do as far as the charges. You might be able to get the client immunity if he flips on a co-defendant, if you’re lucky. You may bring the client in for a proffer in which case the government will lessen/lower/reduce the charges in whatever way it chooses.
For example, we’ve gotten AUSAs to agree not to charge a client with Distribution AND Possession of Child Pornography, and instead charge only with Possession, which lessens the Guideline range (which strongly affects the term of imprisonment). We’ve gotten AUSAs to agree to take a subsequent crime and NOT charge it as an additional count or two, but instead use it as relevant conduct, so it doesn’t affect the Guideline range as much.
The government basically tells you what it’s thinking of in terms of prison sentence. You wiggle them down as much as you can. Like, we had an AUSA that wanted 10 years, but we got him down to 4 years and 3 months. Then your client gets officially charged. Then arraigned. Then there’s a plea agreement with the terms that you and the AUSA hammered out. Then your client signs it, withdraws the plea of Not Guilty and enters a plea of Guilty, and then the Court reviews the plea agreement, accepts it, and then you and the AUSA submit memos arguing your positions – the government argues for whatever term it said in the plea, and you argue for something less. Either less jail time or probation.
Some particularly obnoxious plea “agreements,” like those “offered” in the Northern District of Indiana, say that it is a violation of the plea “agreement” for the Defense to argue for anything less than the term of years that the government asks for. I believe that there’s a special place in hell for AUSAs who draft those “agreements,” but what do I know? I just work here.
Part of the Defense’s sentencing memorandum commonly includes letters of support from friends and family. These letters say, I am ____ to the Defendant, I’ve known him ___ long, I know what he’s been charged with, he’s such a great guy, please show him some leniency.
My federal defender friend in the Northern District of Illinois was telling me that for their non-English speaking clients, well, they have family members and friends who also don’t speak English or don’t speak it well. And when they write letters for mitigation packets, those letters are in a language other than English.
And at our sentencing hearings, either we’ve already submitted the letters with the memo, and we refer to them, or we have the witnesses available to testify, or both. Not having interpreters GREATLY impacts federal sentencings. Those letters aren’t going to translate themselves.
What is a judge who doesn’t speak Spanish going to do when a federal defender has to submit 12 letters in mitigation, in Spanish, without the benefit of a translator to submit the English translation as well?
He’s probably going to toss them.
What happens is that an entire community is shut off from participating in - accessing – the justice system that their loved one is a part of just because of a language barrier and budget cuts to translators’ offices.
And that’s just criminal.
I have a translator that I have worked with many times in the past. I love her. I met her in the bond room at 26th & Cali and I made sure I had all of her information. She is so professional and smart and talented and warm, and the clients that have met her just love her. And we do too! I fairly skipped out of that room, I was so happy to have found such a wonderful interpreter.
But we got to talking – several times, actually – about the way that Cook County handles things with the Interpreters’ Office. And that was why when I read the story of Luis Pantoja and his second alleged rape victim, that we know of, I wasn’t altogether surprised. I was horrified and dismayed … but not all that surprised.
Cook County’s Interpreters’ Office has a small number of interpreters staffed. They handle the demand of ALL SIX districts in Cook County. Keep in mind, depending on who you talk to, Cook County is either the first or second most busiest criminal system in the country.
Cook County doesn’t play.
And when you’ve got such a small number of interpreters that are running around between Skokie and Maywood and 26th street and Markham and Rolling Meadows and Bridgeview … well, you can see the problem.
That’s immediately what I thought of when I read this story in Salon. This horrifying story. I thought of my favorite interpreter telling me that the office really struggled with the County’s demand for its services. I thought of my federal defender friend receiving letters in Spanish and being unable to have them translated for the sentencing hearing because there simply wasn’t anyone who could do it. I thought about the Judge who never ordered that a defendant’s mother be provided a Mandarin interpreter, and the defendant’s attorney who didn’t seem to give two shits about it.
With this job, I’ve been lucky enough to meet so many different people from so many walks of life, with so many different backgrounds, speaking so many different languages, with such varied educational and family experiences. All of them deserve equal access to this system that they’re a part of, either because of their own alleged deeds or those of someone they care about. All of them deserve that, at bare minimum.
Interpreters are a huge part of that guarantee of access. And when our system, for whatever reason, fails to provide interpreters, fails to bridge that language gap…
I don’t even have the words for it.
No, wait, I do.
Shit like this happens.
I don’t know, maybe I’m still just incredibly naive and bushy-tailed. I see things like this sometimes, and every time I feel like I just get a wee bit more desensitized to it. But maybe not, because it obviously bothered me enough for me to puke out my random thoughts in a blog post, right?
Ugh, I don’t even know.