Community and Court Interpreters of Ohio

T A P I T
P.O. BOX 91116
NASHVILLE, TN 37209
Tel: 615-824-7878; Fax: 615-228-9900

Mr. Cecil V. Crowson, Jr.,
Re: Rule 13 Comments,
100 Supreme Court Building,
401 Seventh Avenue North,
Nashville, TN 37219-1407

The Tennessee Association of Professional Interpreters and Translators (TAPIT) wishes to express its membership’s solidarity with the Tennessee Supreme Court’s excellent efforts to train and certify interpreters for Tennessee courts and related entities, and to emphasize that in so doing, the Association is united in supporting all reasonable and appropriate measures taken to ensure the continued success of the Tennessee State Court Interpreter Certification Program. Unfortunately, we must also note that, in regard to the actual utilization and compensation of Tennessee Certified and Registered Court Interpreters, we are currently witnessing practices that are detrimental to the achievement of the goals of that program.

Accurate, professional interpreting depends on extensive linguistic and cultural experience to which has been added specific training in ethics, simultaneous and consecutive interpreting skills and vocabulary enhancement. Indeed, court interpreting is an especially demanding segment of the interpreting field because of the requirement for precision at many linguistic levels and the wide range of subject material to be mastered. Without specific expertise in the field of court interpreting, unqualified interpreters and translators can create legal consequences that are costly and time-consuming to remedy, not to mention the injustices suffered by the parties in question. [1] At present, few courts are facing challenges for inadequate interpretation but clearly this is a trend of the future. [2] Although the Tennessee Supreme Court took a giant step forward when creating and implementing the interpreter certification program, continued failure to enforce utilization of credentialed interpreters by the courts as well as the establishment of inappropriate pay schedules will force many already in the program to leave, and deter the entrance of others into the program.

Credentialing is an expensive, time consuming, and difficult process. There is no real incentive to go through such a challenging credentialing process if, afterwards, work is not forthcoming and compensation is not set at appropriately competitive levels. In other words, lack of work and inadequate pay rates are putting at risk the continued growth and use of Tennessee’s current and future pool of skilled, qualified and credentialed interpreters and translators.

With specific regard to the compensation rules proposed in Supreme Court Rule 13, Section 4(a)(3)(K) Spoken Foreign Language Interpreters and Translators we find the following portions to be especially troublesome, and have made suggestions as to language that we would find more appropriate:

(iii) Compensation rates for spoken foreign language interpreters shall not exceed the following: Certified Interpreters - $50 per hour; Registered Interpreters - $40 per hour; Non-credentialed Interpreters - $30 per hour. For languages other than Spanish: if the court finds that these rates are inadequate to secure the services of a qualified interpreter, the court shall make written findings regarding such inadequacy and determine a reasonable rate for a qualified interpreter.

(iii) Suggested minimum compensation rates for spoken foreign language interpreters are as follows: Certified Interpreters - $50 per hour; Registered Interpreters - $40 per hour; Non-credentialed Interpreters - $30 per hour. If the court finds that these rates are inadequate to secure the services of a qualified interpreter, the court shall make written findings regarding such inadequacy and may undertake negotiations with qualified interpreters to arrive at a mutually acceptable, reasonable rate.

The establishment of what is, in effect, a “ceiling” for the amounts that can be paid to interpreters working both in and out of the courts (that is, for “in-court” proceedings and “out-of-court” assignments such as attorney-client interviews) is unquestionably detrimental to the courts’ ability to obtain the services of properly credentialed interpreters. Interpreters will be unwilling to serve Tennessee’s courts if they can earn more elsewhere or if they feel they are not being properly compensated for the level of expertise they have developed and the considerable investment of time and money they have expended to become certified or registered under Tennessee Supreme Court Rule 42. In terms of the real market value of highly skilled interpreter services (ranging up to $100 per hour and more in the private sector), a cap of $50/hour is unrealistic, especially where seasoned expert interpreters may be desired in cases of particular gravity, such as capital cases. Compensation rates should be stated in terms of appropriate minimum compensation that courts may use as a guide, rather than maximum permitted pay rates; courts and interpreters should be free to negotiate whatever compensation is deemed appropriate in a specific case, given the language, technical difficulties, gravity of the outcome and breadth of knowledge and experience required by the assignment. The inclusion of the phrase referring to qualified interpreters in “languages other than Spanish” (OTS languages), allowing courts to “determine a reasonable rate” for those interpreters, clearly recognizes the existence of market forces and the need for negotiation in some instances, but errs in supposing that such negotiations should only apply to certain languages, a discriminatory practice at best; surely levels of expertise and experience should also be considered in this context. It is offensive to many skilled Spanish interpreters that the Court is quite willing to negotiate higher rates with non-credentialed, unproven speakers of OTS languages while setting limits on compensation for more highly trained, experienced Spanish language interpreters.

(iv) Time spent traveling shall be compensated at no greater than fifty (50) percent of the approved hourly rate.

(iv) Time spent traveling shall be compensated at the hourly rate approved in (iii) above or at a mutually acceptable negotiated rate.

This subsection should be amended to reflect that travel time should be compensated at the same hourly rate as that approved in section (iii) because, put very plainly, failure to make such a change will ensure that qualified and credentialed interpreters will NOT be willing to accept assignments in courts to which they must travel. Interpreters’ time must be paid at a single, adequate rate no matter whether they are traveling, waiting to interpret or interpreting. Already, in the short period during which this rule has been given interim authority over court interpreter compensation, many instances of refusal to travel, or refusal to accept “half pay” for travel, have been reported by interpreters who have called TAPIT’s office to express their anger about this provision. Courts in areas where there are no locally available certified or registered interpreters have once again been forced to use unqualified interpreters because credentialed interpreters are unwilling to travel under these conditions. While TAPIT recognizes that money to pay for services is always a problem for the state, outside funding may be available [3] and even were it not, it is the Court’s responsibility to find a way to pay appropriately for the competent services mandated by Supreme Court Rule 42 and required under DOJ Office of Civil Rights Title VI and Executive Order 13166. Cutting interpreter travel pay in half is not an option if the court is truly committed to providing competent language services to LEP individuals in Tennessee’s courts. It is important to keep in mind that, unlike attorneys and other experts whose involvement in a given case usually requires many hours of case-related work for which they are compensated at the full rate, with travel time forming just a small percentage of the time dedicated to the case, a court interpreter’s involvement is usually limited to the on-site appearances during which the interpreter provides language services. Time spent traveling to an assignment may represent 75 % or more of an interpreter’s total fee. Interpreters cannot financially justify serving distant courts at half pay for travel time when they could be earning full wages for those same hours in their home city, without the wear-and-tear of traveling.

(vi) The court shall determine if it is reasonably necessary for documents to be translated as part of assuring adequate representation of a LEP person. Document translation shall be compensated at no more than twenty (20) cents per word. For languages other than Spanish: if the court finds that these rates are inadequate to secure the services of a qualified translator, the court shall make written findings regarding such inadequacy and determine a reasonable per word translation rate.

(vi) The court shall determine if it is reasonably necessary for documents to be translated as part of assuring adequate representation of a LEP person. Document translation shall be compensated at a reasonable per word translation rate to be negotiated between the court and the translator, with appropriate consideration given to current market prices, tight deadlines or rush turnaround times, the level of technical difficulty and the languages involved in the text to be translated.

Once again, as in the case of (iii), a “cap” on translation rates will have a detrimental effect on courts’ ability to obtain highly skilled translation services. While the translation of simple texts may call for a rate below the twenty cents per word mentioned in the original version of (vi), some documents involving difficult technical or legal language may require higher compensation. The same reasoning applies here as in (iii), including that which pertains to the exception made for OTS languages. It goes without saying that courts must require, in the translation of legal documents, the same level of accuracy and expertise that they have invested in the original formulation of those documents in English, especially in view of the possibility of legal repercussions arising from inaccurate or erroneous translations. Excellence in translation, no matter what the language, should be sought and appropriately rewarded, particularly in the highly specialized field of legal translation.

With regard to the invoice form, REQUEST FOR PAYMENT OF INTERPRETER SERVICES IN INDIGENT MATTER, provided for reporting interpreter requests for payment in accordance with Rule 13, Section 4(a)(3)(K)(vii): Claims for compensation of interpreters and translators shall be submitted to the Administrative Office of the Courts on forms provided by the Administrative Office of the Courts, TAPIT wishes to clarify that interpreters do not bill in tenths of an hour, nor do they distinguish between in and out-of-court hours for purposes of payment. The universally accepted methods for calculating payments for interpreters in almost all settings are either by days and half days [Federal Court ($329/day, $178/half day) and conference interpreting (roughly $500-$1200/day)] or by hours (roughly $45-$120/hour, partial hours rounded up to the next half or full hour) with a minimum charge of two or more hours per assignment depending on the individual interpreter’s custom and credentials. The reason is this: when an interpreter accepts a court assignment, it is usually the case that the interpreter will not be able to accept any other assignment during that entire morning or afternoon, given the unpredictable progression of the docket; thus, a minimum two or three hour charge is necessary to ensure that the interpreter receives fair compensation for that period, for which he or she may have turned down other jobs, no matter whether the proceeding lasts 3 hours or 3 minutes. This is the customary industry standard for interpreter billing. Without belaboring this point further, credentialed interpreters simply will prefer to opt out of the state pool of available court interpreters rather than accept compensation that is inferior to their customary range of fees and methods of billing.

Court interpreting is a highly demanding profession involving specific skills and constant upgrading of knowledge; court interpreters are deservedly proud of their achievements and know their value. A policy or rule that limits and reduces fees in the ways outlined in the proposed Rule 13 and Invoice Form (tenths of hours, differentiation between in and out-of-court hours, half-pay for traveling, caps on fees, etc.) will alienate the very people that the courts have been trying to recruit and retain (i.e. truly competent interpreters) and ultimately will lead to the failure of the State Court Interpreter Certification Program’s professed goal of developing and maintaining an adequately large pool of available, qualified interpreters for Tennessee’s courts. Given that the state has already invested close to half a million dollars in grant money and well over $100,000 of state funds in the Certification Program, such a policy or rule would seem to be very short-sighted.

It is the hope of the Tennessee Association of Professional Interpreters and Translators that the Tennessee Supreme Court and the Administrative Office of the Courts will seriously consider the above points in establishing appropriate compensation guidelines to be approved in Rule 13, Section 4K. TAPIT, although a very young association, is proud to count some 50 interpreters and translators among its members, including a substantial portion of the state’s certified and registered court interpreters. (You can find out more about TAPIT at www.tapit.org.) TAPIT is committed to promoting the development and maintenance of high levels of skills and professional standards among interpreters and translators. We are fully supportive of the Tennessee State Court Interpreter Certification Program, recognizing that it, too, aims for high-level skills and standards. However, it is becoming more and more difficult for us to continue encouraging our members to train for and remain in a profession in which prospective employers (the courts) deny them work even after they have become credentialed, and where appropriate payment is apparently becoming more limited and difficult to obtain, instead of adequately compensating them for the efforts they undertake to satisfy the State’s stringent requirements. We are hopeful that you will take our concerns to heart and incorporate our suggestions in the final version of Rule 13, Section 4(a)(3)(K).

This letter is issued in the name of and in solidarity with the members of the Tennessee Association of Professional Interpreters and Translators, by

Accredited Translator for Spanish and English translation by the American Translators Association (ATA)

Member of the Publications Committee, National Association of Judiciary Interpreters and Translators (NAJIT)

Member of the Board of Directors and Treasurer of the National Association of Judiciary Interpreters and Translators (NAJIT)

Member of the Regional Network of North America (affiliate of the International Federation of Translators), Ethics Committee

Written by Judith Kenigson Kristy in consultation with Marvyn Bacigalupo and other TAPIT members.

ORDER

The Movant, Santos Adonay Pagoada, hereafter Pagoada, has moved the Court pursuant to Rcr 11.42 to vacate the judgment against him entered on March 17, 1998. Movant has exhausted his appeals and is properly before the Court on this Motion. The Motion raises a question of first impression in this state, and has been extremely difficult for the Court to conclude.

The Court has read and studied for the past year, trying to get a grasp on the scope of the problem, and how to adequately address it. Historically, cases requiring interpreting have been uncommon in Kentucky, with reported cases virtually nonexistent. Nationwide, however, a process to deal with language issues is developing.

Pagoada was convicted by a Jury on February 17, 1998 of one count of murder, and his penalty was fixed at 40 years. The Court imposed that sentence on March 13, 1998 (a typographical error in the date appears on the first page of the Final Judgment, which states February rather than March). That judgment was affirmed on appeal.

It was alleged, and Pagoada appeared to admit in a statement to police, that he shot the victim, Jose Enrique Arambul eight times at close range, resulting in his death. Pagoada claimed to be acting in self-defense when, he alleged, Arambul tried to rob him.

Pagoada further claimed to speak little or no English at the time, and was provided the services of interpreters when he gave his version of the events to police. He was also provided a different interpreter at a suppression hearing on this statement. A third interpreter was provided to meet with him and counsel to interpret for trial strategy and to interpret at trial. It was apparent to the Court that interpreting services were needed.

An evidentiary hearing on this Motion was held on September 7 and October 20, 2000. The quality of interpreting at each of the above proceedings is at an issue in this Motion, as this is the gravamen of whether the Movant received a fair trial. In order to be “present” and to be able to participate in his defense, the Movant had to have an acceptable level of understanding of the proceedings.

Legal history is rife with cases where persons under a disability were tried, convicted, and those convictions upheld. Penry v. Lynaugh, 492 U.S. 302,106 L. Ed. 2d 256, 109 S. Ct. 2861 (1989) (mentally retarded defendant found competent to stand trial, conviction upheld); Miles v. Dorsey, 61 F. 3d 1459 (10th Cir. 1995) (personality disorders); Wolf v. United States, 430 F.2d 443 (10th Cir. 1970) (mental instability); Moore v. Commonwealth, 597 S. W. 2d 155 (Ky. Ct. App. 1979) (mental retardation); Huff v. Commonwealth, 560 S. W. 2d 544 (Ky. 1977) (schizophrenia); Thursby v. State, 223 A 2d 61 (Me. 1966) (defendant had debilitating headaches). The cases are instructive in that certain minimum standards must be met: the defendant must have the ability to appreciate the criminality of his acts and be able to conform his behavior to acceptable standards; and he must be able to assist his counsel with rational degree of understanding in making his defense. Dusky v

United States

, 362

U.S.

402, 4 L.Ed. 2d 824, 80 S.Ct. 788 (1960); Gilbert v. Commonwealth, 575 S. W.2d 455 (Ky. 1978); Huff v. Commonwealth, 560 S.W.2d 544 (Ky. 1977); Plumb v. Commonwealth, 490 S. W.2d 729 (Ky. 1973); Commonwealth v Strickland, 375 S.W. 2d 701 (Ky. 1964). Because the Court believes, after lengthy hearings and analysis, that Pagoada did not comprehend the proceedings sufficiently to adequately assist his counsel at trial, he is entitled to have the judgment vacated and a new trial ordered.

In recent years in Central Kentucky and throughout the Commonwealth, there has been a large infusion of Hispanic immigrants. Some enter legally, some do not. Some are law abiding and industrious, some are not. By virtue of being part of the human estate, some land in the court system. The native language of these persons is some form of Spanish. The native language of our country, however, is our Americanized version of English. When the complexities of the legal system are combined with the language differences, the potential for problems is easily recognized. Cultural differences provide another layer of complexity.

This Court is not aware of any Hispanic jurists in Kentucky, and has no knowledge of whether any speak Spanish. While some police, government workers, prosecutors, defense attorneys and judges may now be studying the language and closely scrutinizing interpreters, in 1998, the Courts of the Commonwealth were simply not prepared.

However, in this case, all parties concerned made concerted efforts to provide Pagoada with adequate interpretation. Out of ignorance, all assumed that one who speaks Spanish or is born in a Spanish-speaking country can interpret. This case reveals that this is a false assumption. At the time of trial, there was only a very general rule for court use of interpreters, and no professional responsibility code or certification. To this day, there is still no standardized process, although the Administrative Office of the Courts is working diligently to develop policy and to contain costs. Administrative Procedures of the Court of Justice, Part IX, Procedures for Appointment of Interpreters. (See attached)

The Commonwealth Attorney obtained two Spanish-speaking persons who operate a Spanish translation business, plus an officer with some knowledge of the language, who took Pagoada’s statement, which is garbled even as interpreted. No distinction was made between interpreting skills and translation skills, which according to testimony differ considerably, so that one who can translate adequately from the written word may well lack the skills to interpret orally and simultaneously in the legal context. No one was aware of this distinction at the time.

A third person, then working as a professional interpreter, was found to interpret at the suppression hearing regarding this statement. The Court was skeptical about the quality of the interpretation and even questioned the interpreter about what he was doing because of the long silences and summary-like statements the interpreter was making to the defendant. On his explanation, plus the testimony of the officer, the Court nonetheless concluded that there was no basis to suppress the statement, and assumed that Pagoada understood the purpose of the statement and that he was giving it voluntarily and fully informed. The Court believed that his statement did impart the gist of his account. The court’s skepticism, however, caused it to require a different interpreter for trial, which defense counsel and the Deputy Court Administrator attempted to locate.

At this point, the general lack of qualified interpreters became an issue. No certification or minimum standards for interpreting existed under Kentucky law, and when a third person was found who was Spanish-speaking and who agreed to interpret, the Court, defense counsel and the Commonwealth Attorney all believed that knowledge of the language was sufficient. Though inexperienced as an interpreter, no objection to her qualifications was raised by either counsel, given the common assumption that knowledge of the language was sufficient. Further, because of the unavailability of other interpreters on that date, the rule requiring two interpreters to spell each other was not followed. No request was made for a continuance to obtain a second interpreter, either because the defendant did not want to lose his trial date or because no one realized the necessity.

Everyone generally believed that they made extreme efforts to be fair. The Court even tried a colloquy with the Movant at trial to ensure that he understood his situation.

An interpretation of the above interpretations by Isabel Framer, who testified at the evidentiary hearing on this Motion, reveals that the Court and counsel were mistaken. Ms. Framer’s credentials clearly meet objective standards of interpreter effectiveness, given her experience, her position with the Ohio Court system, her certifications and her national work as a consultant.

Because Pagoada did not have accurate, comprehensible statements made to him for most of the interpretation, his position is analogous to that of persons under a disability in competency proceedings.

When a criminal defendant cannot speak or understand the language of the court, there is an apparent question of competency, sufficient to require inquiry. In this instance, however, inquiry must be made through the interpreter, who also should be subject to certain inquiry. Since the defendant is speaking through the interpreter, the competency of the interpreter is an additional significant question. Before a court can assess the level of defendant’s language ability, it must assess the ability of the interpreter.

To focus on the problem, persons who don’t speak a language cannot inherently know whether interpretation is appropriate. When trying a case involving a foreign language person, a Court must thus rely on objective qualification of the interpreter. These must be thoroughly scrutinized before he or she is employed. Interpreters must likewise be held to certain standards of conduct. If they cannot adequately interpret, they must so inform the Court. A copy of the Virginia Code of Professional Responsibility for Interpreters is attached to illustrate one attempt to codify these standards.

There should clearly be standards which an interpreter should meet. Based on the testimony it has heard, and review of the interpreting policies of other jurisdictions, this Court believes that the following qualifications would prove a presumption of adequacy for legal interpreting: native speaking or certified as fluent by a language school; simultaneous interpreting; use of first person; knowledge of legal terms; asking for clarification and making the Court aware of confusion; informing the Court if an interpretation can not be made; and sworn to interpret by these requirements.

To rebut this presumption, at least two similarly qualified interpreters who agree on a material misinterpretation should be required.

There is nothing easy about any trial where liberty is at stake and a victim is at loss. It is even less so when there are multiple languages involved. However, fundamental due process requires a level playing field, and that all persons answering to the law of the land be given a similar opportunity to answer. The Movant is entitled to such fairness regardless of his ability to speak and comprehend English. Perfect understanding is not required to mete fairness, but a reasonable understanding is.

Pagoada could not have comprehended the crucial nature of his testimony at trial, nor the advisability of giving it, from what the interpreter told him. He could not have followed the testimony against him in order to rebut it if her individual trial interpreting, which the Court did not hear, was similar. By her own testimony, she was forced to resort to drawing a diagram to explain a difficult point. The translation of her interpreting at sidebar is almost gibberish. Pagoada clearly did not perceive that self-defense is not a complete defense under Kentucky law absent a well-founded belief in the need therefor. There is no evidence that his counsel even attempted to explain Kentucky law on self-defense, yet the one thing the Court clearly comprehended from Pagoada is that he believed self-defense to be a complete defense and had no concept of the erroneous belief qualification. The facts of this case, to the extent known, indicate that erroneous belief was clearly at issue. He simply could not have had a sufficient understanding of the proceedings against him to adequately assist his counsel in his defense.

While it is not generally a denial of due process to place the burden of proving incompetency on the defendant, Medina v. California, 505 U.S. 437, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992), in cases where inadequate interpreting occurs which is not perceived by counsel or the Court, how could the defendant possibly meet that burden? Instead, counsel and the Court must make sufficient inquiry of the interpreting process to ensure that the defendant can do so. Having failed to secure his client’s due process rights, albeit unintentionally, counsel was indeed ineffective.

Having conducted this trial once, and noting the efforts of all concerned to deal adequately with the language problems, the Court is reluctant to grant a new trial. The victim’s family will find it difficult to endure the presentation of evidence of the death of a loved one again; the Commonwealth of Kentucky will bear additional expense and delay. Justice, however, requires it.

Consequently, the Judgment of Conviction against Santos Adonay Pagoada is hereby set aside, and the case is set for a status conference on October 19, 2001 at 12:30 p.m. to determine a date for a new trial. Movant shall remain in custody without bond until a hearing on same can be held at the status conference.

Iowa flayed for lack of court interpreters

A federal appeals court on Tuesday sharply criticized judges in Iowa who fail to provide certified interpreters for defendants not fluent in English.

Ruling in a Des Moines drug case, the three-judge panel of the 8th Circuit in St. Louis warned that federal law obligates judges to make all efforts to find and use certified interpreters…

(Page 2) …Tuesday's ruling came in the case of Heriberto Gonzales, a native of Mexico who was arrested in Des Moines on methamphetamine charges. He contended his trial was unfair because his interpreter was unqualified. He pleaded guilty and was sentenced to 12 years in prison.

The appeals court noted that Gonzales had been provided three interpreters for his court appearances, but none was certified in Spanish. Gonzales claimed that the court had violated his rights and the Court Interpreters Act.

The appeals judges agreed but affirmed his conviction, saying he failed to raise the issue during his first trial.

The problem was highlighted when an eastern Iowa murder trial of a Spanish-speaking man was delayed nearly a year, in part because court officials couldn't find enough bilingual experts and court interpreters.

Jose Aguirre-Arreola, 44, was charged after his roommate, Luis Vales, was found shot to death June 6, 2002. Aguirre-Arreola, a native of

Mexico

, is a legal resident but speaks a limited amount of English. He was eventually convicted of voluntary manslaughter.

Ben Stone, executive director of the civil liberties union, said Tuesday's ruling "will be used as a vehicle to help educate the state Legislature."

"If Congress thinks it is serious enough to pass a federal law, we should think the issue is as serious, too," he said.

[1] See the “Pagoada Case”, Addendum I, attached.

[2] See excerpt from newspaper article about 8^th Circuit ruling re certified interpreters, Addendum II.

[3] E.g. the Edward G. Byrne Grant; also, the “State Court Interpreter Grant Program Act”, SB 1733 (see Addendum III for the full text of this important Bill).