One of the hardest things about interpreting is not being allowed to intervene even when we see something going badly. I understand all the reasons for this. To name a few, we are not lawyers and cannot supercede the attorney’s advice. We cannot add or subtract, improve or enhance, what anyone says. It is not our job and there is no way for the monolinguals to parse out what is coming from the speaker and what is coming from the interpreter. Our job is to put the accused in the position of an English speaker, who would be getting whatever quality of advice the lawyer is giving, unedited of course.
This is all outlined in our interpreter code of conduct and is of vital and central importance to our profession. I agree that we must have clear, transparent and straightforward communication, without any interpreter intervention. And I follow my code to the letter of the law. It is not even hard to do, but rather a pleasure in the vast majority of cases, where the accused, witnesses and crime victims are given excellent advice and support so that “justice may be served”.
One of the local government courts I work for just changed out their defense attorney contract, likely for a cheaper one, as government entities tend to do when they can. The result? Tried and trusted, competent and caring and above all experienced lawyers move on. New, untrained lawyers, fresh out of law school with limited experience step in. And because they are overwhelmed just figuring out things like where to sit, how to get into jail to visit a new client, which of the myriad of forms to use, and how to juggle their caseloads, they very understandably like to settle some of their cases as soon as possible – but without the experience to know which of those cases can be ethically skimmed over and rushed through.
My theory is that the cases that end up settling prematurely are most often the immigrants, young women, the very poor, or others who based on their life circumstances have been led to believe that they don’t have much control over the outcome of their lives. So they rely on authority figures to advise, guide and direct them. Even when the particular authority figure is sitting in a new suit with the cherubic face of a fresh law school graduate. Something as simple as saying “I think this is a good deal for you” can bring a signature to a page, and then that case is off the lawyer’s calendar. Great for the young lawyer! But let’s not forget that the accused person lives with the consequences of the outcome of this criminal case, her permanent record for purposes of finding housing and work. For the immigrant population, it has a further life-altering consequence of affecting one’s ability to remain in the United States.
This is none of my interpreter business. I am just there as a conduit. Even so, I have to admit that as a human being and a law school dropout, it can be painful at times to see green, hurried, or sloppy lawyering. It hurts when things are unfair and I cannot fix them. I love fixing things. Some issues are so huge and societal, that there will be no remedy in my lifetime, to my great and abiding sorrow. On the micro-scale, however, small adjustments would give an individual the chance for a wholly different outcome if only the assigned lawyer would do one minor thing differently, such as take the time to follow up on the evidence, or negotiate one more time with the prosecutor.
When I see unfair things that seem easily remedied then it becomes harder for me to let them go. Not while actually interpreting, because we are trained and hardened to deliver whatever message pops out of anyone’s mouth. It is, after all, their message to utter, and ours simply to deliver, like a faithful postal carrier. I am talking about at home, where the mind roams free, and questions itself about the unsolvable, and sometimes makes itself ache with the weight and the pain of memories. This is where my readers come in, to help me to carry this. I won’t even burden you with any of the worst cases. Let me show you a simple misdemeanor. Technically a gross misdemeanor, but that is not relevant here.
Almost any offensive touching can be assault in the fourth degree. It does not have to injure or even cause pain. It is simply an unwanted touching that would be offensive to a reasonable person. I discuss at length who a “reasonable person” is in a prior post at http://crossesrivers.com/jury-neutrality/ so I will not repeat myself. The salient point here is that self-defense, i.e. using a reasonable amount of force to stop an assault on oneself, is allowed. We are allowed to defend ourselves. If our actions are reasonable and limited to trying to stop the harm against ourselves or others, we have not committed a crime.
If I get on the bus and out of the blue shove a fellow rider down, that is assault. If the fellow rider is trying to pleasure himself by humping my hip and thigh on an overcrowded bus while staring aggressively into my face to see how I am handling it, then I would be allowed to shove him hard enough to get him off of me. As a matter of fact, that has only happened to me in Latin America in countries with severe social unrest and lots and lots of angry armed males, and so I did not shove any of them. My only method to try and preserve a shred of my dignity was to stare above their heads as if they did not exist – especially hard to do on one particular occasion, when the perpetrator was so eagerly thrusting that he broke my plastic water bottle inside my backpack as I tried to hold it between us in my best version of non-violent protest.
A woman I met who trained as a combat guerrillera told me that she actually stabbed a man on the bus when he sat next to her and tried rubbing her crotch. He walked off holding the thin shaft, actually a stainless steel crochet hook, still impaled in his belly. It made a small hole and hit no major organs, although it may have perforated his intestines. He sat there completely silent and pale for a moment. He then quietly got up and made his way to the exit, holding his hand around the end of the crochet hook. She laughed with hearty glee as she recounted the story to me. In that case, under the accepted definition, they were both guilty of assault, because she used more than legally reasonable force, to her deep and abiding satisfaction.
But I digress. Let us return to the US, where a high, sometimes overwhelming level of law and order are said to abide. A young man who works with a young woman has called the police to say that she slapped him across the face. That, my friends, is a local version of assault in the fourth degree, with a maximum sentence of a year in jail and a 5000 dollar fine. And so I sit in the courtroom with this young woman and an even younger lawyer. This slap is assault. Or is it assault? I shouldn’t be asking this, as I am not the lawyer, and it is none of my business. And of course I didn’t ask it, not even in my secret heart, while I professionally interpreted. But the pesky old human ponderer in me is asking now, after the fact, and inviting you to ask yourself. Let us look at some facts.
A young woman has worked in the same family restaurant for some years, since her teens. She has advanced from busser to server to management. The owner brings in a young male relative. This horndog takes all possible opportunities of brushing up against her. Whenever her back is turned in the kitchen, he will get right behind her, his front pressed against her back, as he ostensibly reaches around her to get something. She has told him over and over, and told the owner, that he is being inappropriate and has to stop. He continues. He also refuses to follow her direction, and leaves some of his work for her to do.
One day, not many months after he is hired, it comes to a head. He is extremely disrespectful, but did not touch her on this particular occasion. They get into a yelling fight. He yells something in his native language which she was familiar with – a cussing phrase. I wrote it down phonetically as she remembered it and looked it up later out of curiosity, and I am sorry to report it has to do with the loins from which you have sprung – in other words, your mother’s private parts, along with some unpleasant qualities the insulting party professes that your mother’s private parts possess. Which makes it even more odd that said speaker still apparently states a wish to copulate with your dear old mum. In any case, he was up in her face and she reacted by slapping him across his.
The lawyer explains that a slap in legally assault. But he is hurried and harried. As a result, he does not ask any questions about the ongoing sexual harassment. He does not follow up on the fact that the only police witness seems to be the so-called victim’s uncle. He ignores that fact that she said she was afraid, and focuses on the fact that she was also angry. He ignores that fact that the slapped man only called the police after she told his uncle she would call the police if this didn’t stop, and this owner asked her to please wait until tomorrow, when they could all meet and talk it through, sending her home mid-shift. After which he told his dear foul-mouthed and groping nephew to call the police before she did and denounce her for assault, and provided the police both with a statement, and what he knew was an old address for her. He then fired her without ever telling her that they had called the police. The lawyer also brushed over the fact that there was some kind of a recording from the restaurant that may have vindicated her.
From the date of the incident, a year goes by and this woman has no idea that anyone has accused her of assault until she is pulled over for a bad tail light. The police tells her there is a warrant out for her arrest. She is terrified. Brought to the country as a child, she is in the middle of getting her immigration paperwork put through for permanent residence. She is also a student, finally enrolled in English as a Second Language classes so she can improve her living conditions. If she gets a conviction for assault, that could stop her from getting naturalized later as a US citizen. Who knows what affect it would have on her student status or her ability to stay in her apartment. It could also cost her the job at a local daycare to have an assault conviction. She comes to court right away, gets the warrant quashed, and gets a new lawyer assigned to help her sort this out.
He starts his advice by saying that he thinks maybe a man would be too embarrassed to come to court and say he was slapped by a woman, and then the city could not prove their case. But it is a crime to slap someone and she just admitted to him that she did it, and that she was angry, so it could end up as a conviction. There are some documents in the file, including some kind of recording made at the store, and it might show something good for her case, but then again it might show something good for the prosecutor, so we just don’t know (because we haven’t looked at it!)
The prosecutor says if she just signs this one-year deal and follows all the rules she can “have it go away” (it will show as pending for the year, and as a dispositional continuance ending with a dismissal, best case scenario). All she has to do is just stay out of trouble and pay some fines and then do some work for free and also have no contact with the crime victim, the man she slapped. (So she will have a record of having a criminal no contact order against her, even after the case “goes away”).
If she does all this, the new lawyer explains, then the prosecutor will not take the case to trial. After one year, it will be dismissed. If she fails, the judge will read the police report and then decide if she is guilty or not, but she still wouldn’t have to go to trial. (“Wouldn’t have to” meaning that by signing the paper, she permanently and irrevocably gives up her constitutional right to defend herself at trial, review the evidence, call and question witnesses, testify on her own behalf, appeal the conviction, etc.)
In the interpreter’s experience, assault perpetrators are most often required to do some kind of counseling, classes, or preventive treatment to minimize the chance of future outbursts. In this case, the prosecutor was not asking for her to do anything like it. Not even an evaluation, or a one-day workshop. I cannot help but wonder if the prosecutor was just waiting for the lawyer to ask for an outright dismissal on such a weak year-old case, in the face of the overwhelmingly huge number of ongoing and escalating domestic violence situations with children involved. And let me be perfectly clear – I do not think it is okay to slap someone. So I am not defending the slap. But I feel that the attorney should have tried to.
It seems like such a simple thing for a seasoned attorney to deal with. I have witnessed it thousands of times. They take the same simple steps, what I would call standard procedure, for a case like this. Interview your new client. Review the evidence. Interview the victim. Take this to prosecutor and in the case of assault 4, if self-defense holds water, request an immediate dismissal. A couple hours of work, as the defender’s office even has investigators to carry out the first witness interview for them.
In this case, these steps have not been taken and will never be taken. The accused tells the new lawyer that she doesn’t believe she was wrong to slap her coworker, in light of what he was doing, but she doesn’t want to get in any more trouble about it. She doesn’t understand how the system works. She just wants the case to go away. She has never been in trouble and doesn’t know what to do. What does he think she should do?
The lawyer tells her, “I think this is a good deal for you.” And so without either of them ever looking at the evidence the government provided to see what would have been presented against her at trial, or anyone talking to the witness to see if he plans to testify, or contacting the alleged victim to see if he is even still in the country, she signs off on paperwork that waives her right to trial and allows the judge to convict her on the police report alone, if she is unable during the next year to fulfill all the obligations contained in the contract.
I hope she can fulfill all the obligations contained in her dispositional continuance. I truly do. I also truly wish that the system were set up so that all new lawyers and other workers would get the training, time and support they need so that they can fulfill all the obligations set forth in their own employment contracts. And now I am going to let it go, and leave my dear readers to contemplate it.