August 12, 2020 § 16 Comments
Although we are still in the middle of a world-wide pandemic, I have heard from several colleagues that some courts in the United States, and elsewhere, are back in session and they are asking court interpreters to attend in-person hearings. Courts may have their reasons to reopen, but I think is a bad idea for interpreters to answer the call at this time. Covid-19 is very contagious and continues to spread all over the United States and many other countries. This is not the time to risk our health, and perhaps our future, to make the not-so-good court interpreter fees. Technology is such that courthouses can hold virtual hearings, or distance interpreting if they want to have in-person sessions. There are solutions for all judicial district budgets, from fancy distance interpreting platforms, to Zoom, to a simple over-the-phone interpretation with 3-way calling and a speaker phone. Federal courts have provided over the phone interpretation in certain court appearances for many years. Most hearings are short appearances that do not justify risking the interpreter. As for more complex evidentiary hearings and trials, just as conferences have temporarily migrated to this modality, distance interpreting can happen with a few adjustments. If in-person court interpreting is a bad idea right now, in-person interpreting at a detention center, jail or prison, is out of the question. At least in the United States, detention facilities are at the top of places where more Covid-19 cases have been detected.
Court interpreters provide services in accordance to the law and a code of ethics. Neither of them compels interpreters to put their lives at risk just to interpret for a hearing that could happen virtually. I urge you all to refuse in-person interpreting at courthouses and detention centers at this time. Advise judges, attorneys, and court administrators on the available options during the emergency. If after your explanation they insist on having interpreters appearing in person during the Covid-19 pandemic, please decline the assignment. It is obvious your life and health are not a priority for that organization; why should you put them at the top of your clients’ list?
Do not worry about the parties needing interpreting services. That is the attorney’s responsibility. Not yours.
Unfortunately, some of you will sadly agree to physically appear in court to interpret for defendants, plaintiffs, witnesses, and victims. If so, at least demand the following from the courts:
All in-person interpreting must be done with portable cordless equipment. Many courthouses already use it, and for those who do not, explain to judges and administrators this is the same equipment tour guides use. Courts should provide personal transmitters to all staff and regular independent contractor interpreters, and interpreters should take care of the transmitter and take it with them at the end of the day. If this is impossible (although these devises are very affordable) then ask the courthouse to keep them clean and safe, and separate from the receivers the parties will use. Interpreters should always have their own personal microphone (whether it is provided by the court or they purchase it on their own). Ask the receivers be kept in individual plastic baggies, and have the individual using the receiver open the bag and put the devise back in the baggie after the hearing. Never handle the receiver. Ask the court to notify all parties needing interpreting services to bring their own earphones (they can use their mobile phone’s if they are wired). The courthouse should have disposable earphones in stock for those who forgot to bring their own. Earphones are inexpensive and can be thrown away after each hearing.
Finally, interpreters should never disinfect the portable equipment. This is a dangerous chore, you do not get paid to do it, and it is not your job. Disinfecting the equipment goes against all federal and state court interpreter rules of ethics:
“Canon 7: Scope of Practice. An interpreter for a LEP participant in any legal proceeding, or for an LEP party in a court-ordered program, must provide only interpreting or translating services. The interpreter must not give legal advice, express personal opinions to individuals for whom interpreting services are being provided, or engage in other activities that may be construed to constitute a service other than interpreting or translating.” All states include this canon in their code of ethics (sometimes the number is different). Interpreting equipment should be cleaned and disinfected by the same people who clean and disinfect everything else in the courtroom.
If you are interpreting in person for an agency or for a direct private client, you must follow the same practices. The agency should assume the courthouse duties. As for your preferred direct clients who you could not talk out of an in-person appearance, use your own personal equipment. If you don’t have it, buy it. Do not borrow the courthouse’s. You do not know how clean it is. I would also add the following when dealing with direct clients using my own equipment: Have disposable latex gloves available for you and the person using the equipment. That way you may assist your direct client with the receiver unit if needed. Have spare disposable earphones available if your clients forgot to bring their own. I suggest you use the earphones you get on the plane for free and you never use because you have your own. The protocol for jail visits is: No jail visits under any circumstance. Period.
Even with equipment, maintain a safe distance between you and the person you are interpreting for. No sitting next to the client. Always use and demand others use facemasks. The sound quality is not the best, but removing the mask to interpret is too dangerous. I suggest you wear a mask that ties or has an elastic that goes around your head instead of the ones you wear on your ears. They are more comfortable and stay in place even if you are speaking,
Most judges are rational people of good moral character, but I have heard of some cases when a judge has ordered the interpreter to remove the mask, get closer to the person who needs an interpreter, and other dangerous actions. If so, try to persuade the judge, if that fails, ask for a recess and try to get the court administrator to see the situation from your viewpoint. If this does not work, or if the judge does not let you speak, or you cannot access the administrator, excuse yourself.
State you cannot fulfill your duty as a court interpreter to interpret the totality of what is being said in court because you cannot concentrate on the hearing when you know the judge is putting you in a dangerous situation. Put it on the record, and leave. If the judge does not allow you to leave the courtroom, or threatens you with a contempt order, then clearly put on the record for a second time the same explanation you already gave, and clearly state you are being ordered to interpret even though the rendition will be incomplete, that you are being held against your will, and that you are respectfully giving notice to the judge that if because of his order you get infected, you will bring legal action against the court and personally against the judge. Do not be afraid. You are not doing anything wrong.
On top of all that, I would never interpret in that Judge’s court again.
There are other things we can do as interpreters to protect ourselves in the rare case we end up in front of a judge that forces you to interpret and do things that risk your health and maybe your life.
You can file a complaint with the circuit court (if a federal case) or the court of appeals with jurisdiction over the judge. In federal cases, this is done according to the Judicial Conduct and Disability Act of 1980 (28 USC §351-364) and the Rules for Judicial Conduct and Judicial Disability Proceedings.
If federal, you can send a letter describing the judge’s conduct to the Federal Judges Association (FJA) (https://www.federaljudgesassoc.org) or to the State’s judges association in local matters.
Send a letter for publication on the American Bar Association (ABA) Journal Magazine, or to the State Bar Bulletin so attorneys and others learn of the incident and apply pressure on this individual.
Contact your local non-English radio and TV stations (for Spanish speakers Telemundo, Univision and Azteca America) and suggest an investigative report on how this judge is putting those who appear before him or her, and need interpreting services, at risk during the pandemic.
You can also talk to an attorney and explore the possibility of a lawsuit against the judge and courthouse for negligence.
Finally, write a letter to that courthouse’s chief judge and court administrator informing them that, regardless of the outcome, you will never work in that courtroom again. The letter should detail everything the judge said and did, including past episodes witnessed by you. A person with such a bad attitude did other bad things before.
Court interpreters perform an essential job for the administration of justice, everyone who needs an interpreter should get one, but certain things are above the job; one of them that should always come first is our health. I now ask you to share with us your in-person court experiences, in the United States or elsewhere, during the pandemic.
July 14, 2014 § 4 Comments
I was contacted by a colleague who wanted my opinion about a professional situation that was making her life miserable. Her problem was that she had been part of a court assignment where an attorney did something she disliked. At the time she contacted me she was debating about letting it go, or reporting the situation to the judge of the case. I listened to the facts, and I immediately remembered other events where an attorney’s conduct had been questioned by other interpreters. This is her story:
An interpreter was hired to work during a deposition at a law office. While waiting for the assignment to start, she had a conversation with other individuals in the waiting room. One of the others was also a court interpreter. Finally, after a long wait, a secretary came to the waiting room and announced that the deposition had been cancelled. The interpreter went home, she got paid on time for this assignment, and she forgot about this incident.
Several months later, she was contacted by another agency that offered her a transcription/translation assignment. She agreed, and a few days later she received a CD with the audio recording. She began the transcription, and about an hour into the transcription, she concluded that she knew at least one of the voices in the recording; it was the voice of another interpreter, in fact, it was the voice of the interpreter she had been talking to, months earlier at the law office, while she waited for the deposition to start. She immediately knew that she had to stop the transcription and report this circumstance to the agency. A decision had to be made about her involvement in the transcription job. Before contacting the agency, the interpreter decided to see if the other interpreter’s voice was all over the recording or just at the beginning. She had just been working on the transcription for about an hour, so she wanted to find out. She fast-forwarded the recording, and to her surprise, she now recognized a second voice: It was her own voice! She was part of the recording the agency sent her, and the recorded conversation was the one they had at the attorney’s office on the day the deposition had been cancelled months earlier. This obviously changed everything, and the possibility of continuing on the job if the parties consented to it after a full disclosure was now gone. She knew she could not continue transcribing the recording. She immediately contacted the agency and told them what happened. The agency retrieved the recording and sent it to another transcriber. The interpreter was paid for the work done even though the agency knew that they would never use the transcription. The real problem for the interpreter was that she did not know that she had been recorded and she wondered why this had happened, what they were going to use the tape for, and what she should do about the whole situation. She did not even know if the recording was legal or not.
The recording was related to the case where she had been hired to do the cancelled deposition; she knew the attorneys involved, and she had heard that they both practice law very aggressively. She felt bad and she felt cheated. The interpreter thought that this strategy had been sleazy and perhaps illegal. Her first impulse was to contact the judge in the case and let him know that she had been recorded without her consent. Something had to be done.
Fortunately, she waited and thought it over. Without revealing any names or details of the case, she consulted an attorney and learned that in her state, as long as one of the parties to a conversation is aware of the recording, and she consents to it, the rest need not know or consent for the recording to be legal and even admissible in court. Based on this, the interpreter did not go to the judge or anybody else. She had no legal standing and no law had been broken by the attorney who ordered the recording. In fact, she realized that she could not even disclose any of these facts to anybody else because of the interpreter duty of confidentiality, which cannot be broken unless a crime was committed or may be committed unless the interpreter speaks. Going to the judge would have been the wrong thing to do because she really had nothing to report. She learned a valuable lesson after this case because she understood that in an adversarial legal system, the attorneys may do things that we dislike, but as long as they are legal, they are allowed to do them, and we should not get involved or judge the legal strategy.
On the second case I will now share with you, I was interpreting in a plea hearing many moons ago. The defendant was going to enter a plea of guilty to a federal offense. I was working for the court. I arrived to the courtroom about fifteen minutes before the hearing, which was customary at that courthouse, I let the clerk know that I was there, and I sat down to wait for my case. The defense attorney arrived about five minutes later and asked me to help him with his client. He told me that the defendant, who was in detention, was already in the holding cell, and that he needed to talk to him for a few minutes before the judge came out for the hearing. As many of you know, this happens all the time in federal court in the United States, so I agreed and off we went next door to the holding cell. The moment we arrived I realized that the defendant spoke some English and understood many things; however, he was far from being fluent, and definitely needed an interpreter for the most complex legal concepts. As soon as we greeted the defendant the attorney started this, in my opinion, self- serving speech telling his client (the defendant) how hard it was to get him the deal with the prosecution, and that this was his chance to bring the case to an end by just pleading guilty to the charge in the plea agreement. Then the attorney “asked him” but in reality told him “the agreement is almost identical to the version you already saw before when I went to see you with the other interpreter, remember?” and “…the judge is going to ask you if you were interpreted the new version by a certified interpreter and you are going to say yes because if you don’t, then the judge will continue your case for another day, maybe in a month or two, and you will have to sit in jail all that time waiting to come back in here. All of it for a document that practically says the same that the one that was interpreted to you before. Do you understand?” Of course I interpreted all of this to the defendant and he said yes. Next, the attorney told his client that “… when the judge asks you if you have any questions you need to say no, unless you have any questions, and if that is the case we will have to come back before the judge in the future, and he is going to ask you if everything was interpreted to you into Spanish and you will say yes because as you remember we went to the jail and the interpreter interpreted everything, including your questions, right?” The defendant said “yes.” The attorney continued: “…Well then, let me ask you right now: has the plea agreement been explained and interpreted to you in Spanish?” The defendant answered: “yes.” The lawyer continued: “…Has your attorney answered all of your questions with the assistance of an interpreter” The defendant: “yes.” Finally the attorney added: “…Do you have any questions at this time for the judge, for me, or for anybody else about your case, charges and plea you are about to enter?” Once again the defendant said “no.” “…Great” said the lawyer; and added: “… So you know why you are answering the way you are right?” The defendant: “Yes, so I can go to prison sooner.” Attorney: “…and, even though we didn’t interpret the latest version of the agreement, since we went over another version that was practically identical, you will tell the judge that we did right?” Defendant: “Yes, I will tell him that you explained everything to me through the interpreter, and in my mind you did, and I really believe so, and I have no more questions. I know what I am doing and I just want for all of this to be over.”
We went in front of the judge who asked the very same questions. Both, the attorney and his client answered almost with the same words as they had used in the holding cell. The judge entered the conviction and the defendant left very happy with the outcome of the hearing, on his way out he told his attorney: “…thank you very much. You are a great attorney. You know what you need to do for the benefit of your client. I will send you clients…”
Although the attorney and the defendant did not lie to the judge because they phrased everything very carefully, thus avoiding breaking the law, and despite the fact that the attorney had fought for, and vigorously defended his client’s best interest, which was to go to prison as soon as possible so he could start some treatment not offered by the jail, I left the courtroom feeling a little strange. I knew there was nothing for me to do since no laws were broken, and everything had been legal strategy between client and attorney discussed in confidence and under the protection of the client-attorney privilege, but it took me a couple of hours to get over it; you could even argue that I did not get over this case since I am still telling the story so many years later, but the truth is that yes I got over the case, and the reason why I am sharing the story with all of you now is because both the defendant and the attorney have since passed away, so there is no privilege anymore.
I would like to invite you to share similar stories or comments about things you have done or were tempted to do when in your opinion an attorney did something sleazy.