Lack of understanding, common sense = constitutional conflict in court?

November 12, 2018 § 1 Comment

Dear colleagues:

I recently learned that some federal district courts got involved in the way federal prosecutors pick their interpreters for hearings. I have practiced in federal court for many years, and the decision on who will interpret for the office of the United States Attorney has always been left to the prosecutors who know the case better than anybody else. This means they, and their prosecutorial team of paralegals, investigators, detectives, and law enforcement agents, know the language complexities of a particular case, and therefore, better equipped to decide who they need for that interpreting assignment.

I do not dispute that some districts, because of a lack of federally certified court interpreters, or out of plain ignorance, have never tried a case where the assistant U.S. attorneys (AUSA) have their own interpreters for a trial. Some districts are so small, the AUSA office does not even have a staff interpreter. Some districts are so remote, that even the court tries cases with unqualified court interpreters (usually certified or accredited at the state level) because it is next to impossible to get somebody to the courthouse. Evidentiary hearings and trials require that an interpreter be physically present at the hearing. Remote interpreting is not a viable option for these proceedings.

That some have always followed this practice does not make it right, and courts in districts in urban centers where federally certified court interpreters are available have no reason to inject themselves in what should be an internal process of the Department of Justice. Let me elaborate:

The American legal system, and all legitimate legal systems in the world, are based on an independent judiciary free to decide with no pressures or fear of retaliation. The United States Constitution recognizes and enshrines this principle through the separation of powers. The Executive Branch of the federal government originates from Article 2. The Judicial Branch stems from Article 3.

With administration of justice in a criminal case, all individuals in the United States have the rights and protections established by the Constitution and secondary legislation; mainly, the right to a public and fair trial by their peers, starting with a presumption of innocence, charging the Executive Branch of government, through the United States Department of Justice, with the burden of proof, beyond reasonable doubt, in an orderly regulated process, presided by and controlled by the Judicial Branch of government. To put it simply: Because the government cannot be judge and party, it is an agency from outside the Judicial Branch, in this case the Justice Department, who prosecutes the case on behalf of the U.S. government, including the citizens that the government must protect from the bad guys.

We can see that having the burden of proof is no small task. Federal prosecutors must investigate de facts, test and evaluate the evidence found, and prepare a case that will persuade the jury and judge of an individuals’ guilt beyond reasonable doubt. If successful, the Justice Department will meet its duty to protect society. This is no easy task; it also means that individuals will lose their assets, their freedom, and even their life.  A prosecutorial team must have the best team available to fulfill its function, and that is extremely difficult.

Federal prosecutors must call witnesses to testify in the trial. When these witnesses do not speak English, their testimony must be interpreted into English to benefit the defendant, the defense attorneys, the judge, and the jury. It is only then, after the rendition of the interpretation, that the defendant will have exercised his constitutional right to confront the witness or accuser. It only after the rendition that a judge or jury can assess the credibility of the witness. It is this time they will decide if they believe all, part, or nothing of the witness’ statement.

But most of the work is done before the witness steps in the courtroom and takes the stand. Prosecutors and their teams test, evaluate, and prepare their witnesses before a trial. Questions are asked many times, in many ways; adjustments are made. Not to influence testimony, but to present the truth clearly to the trier of fact (judge or jury). Usually the testimony of the witnesses for the prosecution is very complex, specialized, scientific. Dense concepts and sophisticated terminology must be interpreted into English during the trial; cultural concepts must be clarified before the final rendition (many expert witnesses come from abroad just for the trial); legal systems compared so the accurate term in the target language is rendered by the interpreter. Leaving loose ends is not an option: The prosecution must prove, and the standard could not be any higher: beyond reasonable doubt. Prosecutors and their teams, assisted by the interpreters, go over the testimony with every witness as many times as needed. These interpreters must research, study, practice, develop a common glossary for each testimony. The witness gets used to that team of interpreters and the interpreters get used to the witness.

The interpreters for the prosecution know the case, they are familiar with names, dates, places, and other key information that must be interpreted with accuracy. From gang slang, to amounts of drugs, to family relationships. It all needs to be well-understood so the interpretation heard in trial is accurate, pristine, and truthful.

Confidentiality is essential to our justice system. It lets the parties tell the truth to their attorneys so they can represent, in a criminal case, a defendant or society with full knowledge of the facts. Confidentiality is also very important when it comes to the lawyers’ strategy. Prosecutors and defense attorneys develop a strategy to win a case. The interpreters for the prosecution know the strategy and facts, and they are covered by the veil of secrecy. Using a court appointed interpreter to interpret for the prosecution generates a conflict of interest. You cannot be judge and party simultaneously. Even the most professional, trustworthy interpreters should never be placed in such situation. The sole appearance of conflict is enough to cast a shadow on the proceedings. Client-attorney privilege only exists when there is an expectation of privacy. How could this be argued when the same interpreter hears all confidential details?

The independence of the prosecutorial interpreters is so important, that even their payment differs from that court appointed, public defender, and Criminal Justice Act (CJA) attorney interpreters receive.  I am not referring to staff interpreters, I am talking about independent contractors retained to work in a case. While interpreters for the court, public defender, and CJA attorneys are paid through the judicial system (Judicial Branch of government) interpreters for the prosecution are paid by the United States Department of Justice (Executive Branch). The funds come from different budgets to assure independence, absence of conflict of interests, and separation of powers. The Office of the United States Attorney pays better that the courts, and unlike the latter, fees are negotiable between the parties (interpreters and AUSAs). This can also be relevant if you think that most more experienced, better trained interpreters would rather work for the prosecution, leaving a smaller pool of top-level interpreters to work for the courts, and increasing the risk of an inaccurate rendition of a prosecutorial witness’ complex testimony during the trial.

The widely, and constitutionally backed, practice of having a separate interpreter team for the prosecution in federal cases must continue as long as we have separation of powers, and a system where one party has the burden of proof. There is no rational justification for this practice by the executive branch of government, to be changed by court staff, from a different branch. Such decisions are being made in courthouses where none of the issues above were given any thought, where prosecutors did not reflect on the implications of such changes, and a decision was unilaterally made, perhaps due to a lack of understanding that lead to this policy deprived of common sense. If the decision at these district courts was made unilaterally, we have a separation of powers issue; if it was decided for monetary reasons, remember that interpreter fees are paid from two budgets (executive and judiciary); if it was decided to avoid comparisons between experienced prosecutorial interpreters, and perhaps less qualified court appointed ones, it was motivated by unethical reasons and it shows a disappointing level of professionalism; and if this was a joint decision by the courts and AUSAs in some districts, they must address the conflict of interest and at the least the appearance of conflict.

Our legal system has been around for 250 years. It has organically adjusted its parts to observe the fundamental democratic principles, starting with an independent judiciary, a separation of powers, and the rights and protections to the individual and society. In today’s world where many things that were, are no longer, let’s hope this is not changed by the capricious decision of a few. I invite you to share your thoughts on this issue.

Interpreting CJA cases is a bad business decision.

March 26, 2018 § 25 Comments

Dear colleagues:

A recurring theme among my court interpreter colleagues in the United States is the extreme difficulties they must endure when working under the Criminal Justice Act program (CJA). There are complaints about absurd paperwork procedures and unimaginable payment delays. Some colleagues’ invoices for professional services rendered under this program have been outstanding for over a year!

I worked with attorneys under the CJA program, but when the system changed about 18 months ago, and interpreters’ invoices had to go through the defense attorneys to get paid, and I heard some of the delayed payment stories from colleagues nationwide, I decided not to take CJA cases anymore.

For those of you who do not do federal court interpreting work in the United States, in 1964 the United States Congress enacted the Criminal Justice Act (18 U.S.C. § 3006A) to provide a system for appointing and compensating lawyers to represent defendants financially unable to retain counsel; and providing for payment of experts, investigators, or other needed defense services in federal criminal proceedings, including interpreters. Today, the Office of the Federal Public Defender, with the over 10,000 private “panel attorneys” who accept CJA assignments annually, represent the vast majority of individuals prosecuted in U.S. federal courts.

CJA panel attorneys are paid an hourly rate of $132 in non-capital cases, and, in capital cases, a maximum hourly rate of $185. These rates include both attorney compensation and office overhead. In addition, there are case maximums that limit total panel attorney compensation for categories of representation (for example, $10,000 for felonies, $2,900 for misdemeanors, and $7,200 for appeals). These maximums may be exceeded when higher amounts are certified by the district judge, or circuit judge if the representation is at the court of appeals, as necessary to provide fair compensation and the chief judge of the circuit approves.  CJA attorney appointments are made by the Court on a rotating basis among members of the panel. Freelance federal court interpreters are paid with the same system, but with an additional step: Before their invoice goes to the judiciary, it must be reviewed and approved by the CJA panel attorney who requested the interpreter’s services. I guess interpreters are officers of the court of a lower tier, so they must be policed by the CJA panel attorney, apparently an officer of the court of a tier higher than the interpreter.

This process, not required when interpreters work directly for the federal courts interpreting court hearings or out-of-court interviews for public defenders or probation officers, created a burden on freelance interpreters who now devote a considerable, uncompensated time to the paperwork and its unavoidable eternal follow up process, that often takes many months and even years. Interpreters are billing for the time they worked as interpreters in a case, but that time represents but a fraction of the hours interpreters spend on paperwork, and follow up telephone calls, emails, and in-person visits to the courthouse, trying to discover the status of a payment for a service provided long before. This time goes uncompensated, and interpreters cannot work somewhere else, and generate income, while they are tied up in bureaucratic nonsense and begging for payment of rightfully earned professional fees.  For all these reasons, and to keep my health, sanity, and dignity, as soon as the system started I decided not to take any CJA panel cases, and I have taken none.

I suggest you do the same. Once you do it, you will be surprised at the money you will save just by rejecting these cases. Those of you who know me, or have read this blog for years, know that I am always suggesting diversification in the profession among freelancers so you can keep steady income, and a stream of interesting assignments instead of a boring monotonous routine. Dear colleagues, there are plenty of options even if court and legal interpreting is your thing and you do not want to step outside your field.

The most desirable practice would be civil cases with well-established high-profile law firms. They generally handle interesting cases, have clients who understand and appreciate your work as interpreter, and pay excellent, professional fees when you negotiate correctly. Smaller civil law firms and solo practitioners are also a good alternative.

Next, you have the criminal defense private attorneys. They have time to handle their cases and they usually retain you for the entire case. Here your interpreting services are well paid, and you are exposed to challenging, but interesting cases. It is rare to work in a case involving white collar crimes when you spend your time providing services to public defenders and CJA panel attorneys.

Foreign law firms are also a very good choice. Globalization has generated a big multinational litigation practice, and those top-notch attorneys coming from countries where they do not speak English may need the services of a local court interpreter team. Fascinating topics, including intellectual property, foreign trade, mining, hazardous materials, are common with these clients. Family Law practitioners from these countries are also looking for interpreting services in cases of divorce, child support, international child abduction, and others.

If you want to fill in the rest of your agenda with more court/legal work, you can also provide interpreting services to the Office of the United States Attorney in your jurisdiction. Witness preparation, proffers, transcriptions, and other services are required by the AUSA. An added benefit: They are not bound by the (every-day lower) federal fees, so you can negotiate a much better compensation for your professional services.

If you like working with the federal prosecutors, then you must offer your services to the United States Trustee Program (USTP) for their exams and interviews in federal bankruptcy court cases. This is another source of legal/court interpreter income that pays well when you negotiate your fee correctly.

Finally, you can still work with the federal public defender and, if you want to interpret hearings instead of interviews, negotiations, and depositions, you can interpret for the federal courts. You will only make the set half –a-day or full-day fee, and you will usually get the same type of cases, but you will stay away from the long, demeaning, and never-ending invoice procedures associated with CJA panel attorney cases. As a less desirable option, but in many ways better than dealing with the CJA system, you could always work at the state-court level.

Dear friends and colleagues, there are plenty of alternatives to CJA assignments, even within the court/legal field. I believe that if you all were to do what I did from the beginning, the CJA system would have no choice but to change and become more interpreter-friendly. I do not believe on “fantasyland solutions” such as talking to chief judges and court clerks; it was tried in some districts and they accomplished nothing. We cannot continue to lose income, health, and dignity backing up a system that proved ineffective. I now ask you to share your comments with the rest of us.

Are we protecting our profession? Part 2.

April 5, 2016 § 12 Comments

Dear Colleagues:

On the first part of this entry we discussed the role that professional associations should play on the face of antitrust legislation and its adverse effect on our profession.  Today we will explore another crucial aspect of the profession that has been under siege for several years; and if some external forces have their way, it could set the profession back to the Stone Age.  I am referring to the very popular tendency to minimize the importance of interpreter and translator professional licenses, certifications or patents and the acceptance, and in some cases even blessing, of lesser quality paraprofessionals as the preferred providers of services by many government entities and multinational interpreting and translation corporations who make the decision to hire these individuals, who are unfit to practice the profession, based to the extremely low fee that they command.

It took interpreters and translators many decades of constant struggle to get to the point that their accreditations became widely known and accepted as the standard of quality among those providing the service.  Finally, holding an American Translators Association certification, or proof of many years of experience,  gave the real professional translator the needed tool to argue that she should get the job over the individual whose only credentials were the translation of his parents’ birth certificates and a couple of elementary school reports.  The days when a real professional interpreter would lose an assignment to a person whose only linguistic experience was that he had lived in two different countries during his life, became less common when true professionals started to demand top assignments with their interpreter degrees, or their court, or healthcare certifications in hand.  There was a lot to be done, but interpreters and translators were on their way to educate more prospective clients and government officials every day.  People began to notice the difference on the quality of the service rendered by a real certified interpreter or translator.

But, since nothing can come to the interpreting and translation world without drama and tragedy, technological developments such as CAT tools and telephone/VR interpreting came to be. This should have been a welcome development that benefited interpreters and translators; however, this new technology, combined with a global economy where big corporations seek profit by bastardizing a real profession and turning it into an assembly line, and changing its name from profession to “industry”, injected a new player to our eternal drama:  the opportunist, also known as the “new talent scout” whose sole function was to undermine established professions, like ours, and replace quality professionals with cheap novice paraprofessionals who see this individuals as their ticket out of the flipping burgers world.

Compounding the problem in the United States, there was a new administration in the White House, whose attorney general was determined to compel the state-level agencies who were recipients of federal funds, to provide access to their services for everybody, regardless of the language they spoke. This in itself sounds very good and fair, and in fact it was not just the right thing to do by the administration, it was long due as this mandate had been part of the law since the mid-sixties when Title VI of the Civil Rights Act was enacted.  In fact, to an interpreter or translator who did not know the reality of the American system this would look like a pot of gold. All of a sudden millions of people who needed interpreting and translation services were going to get them! Unfortunately, reality and a short-sighted government opted for the easy way out, a path that was doomed from the beginning. Let me explain: This instantaneous demand for many more interpreters and translators exceeded by far the supply of professionals in the United States, and to meet the mandate, the states decided to enable just about any almost-bilingual individual, to provide translation and interpreting services, instead of promoting more college programs and encouraging American citizens and permanent residents to prepare themselves, and become true professional interpreter and translators, who would have access to professionally remunerated work due to the implementation of this legislation.

When the opportunists, also known as the “new talent scouts” realized what was going on, they immediately saw the possibility for huge profits by providing the required services with tons of these paraprofessionals, who they immediately hired at rock bottom fees.  Moreover, they saw the possibility of making their margins even bigger by using machine translation and retaining humans as proofreaders, and by providing interpreting services by telephone, and lately by video remote interpreting or VRI in some cases, while hiring these new “type” of “interpreters” by the minute (or if they are lucky by the hour).

Government officials liked the solution, but they still had one more obstacle that was keeping them from going all the way with these multinational corporations operated by the opportunists, also known as the “new talent scouts”, who by now were active in social media, writing their own blogs, and organizing their own conferences to build themselves up like interpreting and translation “self-proclaimed gurus”. That obstacle was the certification.

The certification, that extremely difficult and elusive project that took real interpreters and translators several generations to create, and then make known and widely respected, was by now a requirement in the law.  It was obvious that the new paraprofessionals would never pass a certification exam, so the government officials and their “associates” had to think fast, and cheap.

The solution they came up with was the creation of a “second class” tier of people who they call “language facilitators”, “justice-system interpreters”, and many other labels, avoiding this way the uncomfortable, and perhaps illegal alternative of referring to them as translators or interpreters, who, in lieu of a real certification, would be “accredited”, “registered” and many similar names.  Now they argue that these individuals can provide the professional service as long as the content is not too difficult or the event is not very important!

Finally, to end the vicious circle, some of our opportunistic “friends”, also known as the “new talent scouts”, realized that with government officials willing to do whatever possible to go around the true mandate of Title VI, which would require them to use certified, experienced, professionally trained interpreters and translators, they could get another piece of the pie by pulling a rabbit out of a hat, and creating a mutant creature they would call: “community interpreter certification”.

The principle is very simple: What do you do when you have a group of people who cannot pass the interpreter certification exam? You develop another program with an exam easy enough for anybody to pass, and you propose it to the authorities as a legitimate certification for court cases before administrative judges, for client-attorney interviews, and for simple medical events. Do you see the pattern? Once again we have the not-so serious event and the not-so difficult content rationale to justify the use of mediocre individuals, who have only one advantage over the real professional, experienced, certified interpreters and translators: They will work for peanuts; because whatever they get paid will be better than the money they were making before they got “discovered” by the talent agent.  Never mind the fact that administrative law hearings are as complex as Article Three court hearings as I have indicated on a previous entry to this blog a few months ago.

The situation turned for the worse when the implementation of Title VI at the state-level civil courts in the United States was narrowly interpreted by many of their administrative offices, as meaning that only interpreters supplied through the judiciary could provide services in civil matters. This actually killed the main source of income to many entrepreneurial interpreters who had opted out of the bureaucratic, low-paying criminal court assignments, and had developed their own client-base, charging for their services according to supply and demand. Oftentimes, because of the complexity of civil litigation, and because of their type of clients, these interpreters fared much better than their counterparts who stayed on the criminal court bandwagon.  Title VI guarantees equal access to all government funded services, including the administration of justice, but it does not make it illegal for litigants who want to, and can afford it, to hire private interpreters.  In my opinion, this is a classic example of a situation where professional associations needed to protect their individual members, and the profession, by advocating for the availability of private interpreters to be retained for civil litigation.  Unfortunately, instead of taking action, our biggest professional association in the United States not just sat on the sidelines, but welcomed the new “civil court-provided interpreter system”, and remained silent when some states decided to meet the requirements of Title VI by hiring big “interpreting services” agencies (who view our profession as an industry) to program the interpreters for civil cases.

To summarize the situation, we now have an environment fostered by the government authorities, and exploited by the multinational interpreting and translation corporations, plus some small “local talent” that was able to learn fast how to do this thing, where certifications and education do not matter anymore, where assignments are going to questionable paraprofessionals, many of whom have never been able to pass a certification exam, who are working under terrible conditions, in exchange for a miserable fee.  The first logical reaction of any interpreter or translator should be one of outrage, disgust, frustration. The second reaction should be to talk to its professional association and ask it to represent its members and protect them from these nefarious tendencies, thus saving the integrity of the profession.

Attorney and medical associations are vigilant and protective of their members and profession. They do not allow, under any circumstance that paraprofessionals practice law or medicine. In fact, attorney associations set the standards of practice in their profession. No agency or its equivalent is allowed to set the tone.  They have lobbied for, and achieved legal protection: In the United States it is a crime to practice law without a license, and this applies to all court proceedings, including administrative courts.

Unfortunately, this is not the case with some of the bigger translator and interpreter associations.  They keep silent when the government creates these groups of paraprofessionals to “meet” the requirements of Title VI. They invite those who are turning translators into proof readers to their conferences to recruit more of the young talent before they learn to separate good from evil; Instead of protesting, criticizing and denouncing the birth of that Frankenstein’s monster called “community interpreting certification”, they celebrate the lowering of the bar and open wide their organizations’ doors for these paraprofessionals.

Moreover, they welcome as their members many of these multinational corporations, “self-proclaimed” gurus, and opportunists, also known as the “new talent scouts”. Maybe they do so because they do not know of all these terrible things that are happening to the profession. Maybe they let them in because they share their view of interpreting and translation not as the professions they always were, but as industries where the proofreader (formerly known as translator) and the part-time telephone operator (formerly known as interpreter) will happily hold hands at the assembly line and praise the virtues of the big “language” corporations. The question is, what are professional associations for? I now invite you to share your comments about this reality we are living pretty much around the world, and to offer your solutions to the role that a professional association should play in the world of interpreting and translating.

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