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.

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