By Kristina Davis, The San Diego Union-Tribune
A status hearing for a Ghanaian man accused of crossing the border illegally was abruptly cut short when the phone connection between the courtroom and Ashanti Twi interpreter on the line went dead. The defendant, who does not speak English, would have to come back to court the next day to try again.
At another hearing, a young Mexican woman also being prosecuted for illegal entry didn’t understand what was happening around her as she was seated in court. She needed a Mixteco interpreter, but the one on hand spoke a different dialect. Still, they pressed on, slowly attempting to explain the charges against her, with confusion and tears etched on her face.
Similar scenarios of communication breakdown have become commonplace in San Diego federal court as the Trump administration has vowed to treat every illegal border crossing as a crime under a “zero tolerance” policy.
Since the policy’s implementation in May, the demand for foreign language interpreters has spiked, but filling the need has not been easy.
The increased caseload has led to logistical problems in court, frustrations as defense attorneys struggle to communicate basic legal concepts to their clients, and concern among the defense bar that due process is being skirted.
Several prosecutions have been dismissed this summer due to language issues.
Growing diversity
The greatest shift in demand has been for languages other than Spanish. In May there was need for 11 such languages; in July it rose to 28, according to the U.S. District Court of Southern California, which covers San Diego and Imperial counties.
“During the months of June and July our District has experienced an influx of cases requiring interpreters of languages of India and Nepal: Punjabi, Urdu, Hindi, Guajarati, Bengali, and Nepali,” court officials said in a statement. “We have also had cases requiring interpreters of languages that have not been heard in our District before, such as Ashanti Twi from Ghana.”
And while there are two local interpreters of the indigenous Mixteco language of Mexico — Mixteco Bajo and Mixteco de Guerrero — the court has seen a rise in other dialects that need interpreting: Mixteco Alto, Mixteco de la Costa, Mixteco de Etla. Other indigenous languages from Mexico, Guatemala and Honduras include Mam, Maya Kiché, Zaptoeco and Amuzgo.
Before zero tolerance, many of these migrants would not be criminally charged in federal court, but would instead go directly to immigration proceedings.
It is the lawyer’s responsibility to find interpretation services outside of court, and the court’s duty to offer such services during hearings.
That has typically not been a problem when it comes to Spanish speakers. Many attorneys who don’t speak Spanish have staff who do. And for hearings, the court employs 11 full-time Spanish interpreters in San Diego, officials said. Additional needs are covered by several certified Spanish interpreters who live in the county.
Contract interpreters for other languages who live in the area are also called on as needed, although they represent only a handful of languages, such as Chinese and Arabic.
As a result of zero tolerance, the criminal court docket has grown much more diverse.
In July, Federal Defenders of San Diego, the local public defender agency, put out a call to San Diego’s ethnic community-based organizations and refugee groups that it is “urgently seeking contract interpreters.” The email notes “these clients are in custody and unable to communicate with their attorneys.”
Baldave Singh, one of the closest Punjabi interpreters to San Diego, lives in Redlands. The rise in migrants fleeing the Punjab region in Northern India due to political and religious persecution is keeping him busy. Many are crossing the border illegally, then claiming asylum.
“I have been 100 percent busier at this present time as compared to 2017,” Singh said in a recent email. He said that from July 23 to Aug. 17, he has driven approximately 4,000 miles traveling between San Diego and his home in San Bernardino County.
While Singh is able — and willing — to make the long drive, many other interpreters in demand live as far away as the East Coast, or in other countries, and must do their interpreting over the telephone.
A mad rush
To deal with the logistics of handling a sudden influx in misdemeanor illegal entry cases, the Southern District court recently set up a dedicated court that closely resembles “Operation Streamline” courts set up under previous administrations along other parts of the Southwest border.
Defendants typically appear the day after arrest and are given the opportunity to plead guilty immediately and be sentenced, usually to time served. From there, they go into immigration proceedings — a completely different legal system.
To prepare for the afternoon hearings, defense attorneys meet with their clients in the converted garage of the federal building in the morning. Each attorney typically is assigned two to four clients that day.
In very little time, the attorneys must explain the charges, how the U.S. legal system works, what the government’s plea deal is, and ascertain whether the client should accept the deal or request a trial. Information on the client’s criminal history, ties to the U.S., potential asylum claims and financial situation must also be communicated in order to argue for bond.
When an attorney is notified 20 minutes beforehand that a client doesn’t speak English or Spanish, the mad rush to secure an interpreter begins.
That effort often cuts severely into time the attorney could be meeting with other clients, many have said.
Once an interpreter is located, there is only one telephone in the U.S. Marshals Service basement on which the attorney, interpreter and client can converse.
The first few weeks of the special court’s rollout were especially trying.
“I can tell you, having a conversation over the phone with an interpreter is completely impractical,” said defense attorney Anthony Colombo. “There’s no speaker option on the phone, no simultaneous translation. You are essentially playing hot potato with the receiver. I think that the quality of the interpreter or accuracy of the interpretation is affected tremendously.”
Since then, a second receiver has been added to the phone, allowing for all three to listen at the same time.
Attorneys said last week that the marshals have indicated they might allow attorneys to use personal cellphones in the basement for interpreter calls if necessary.
Colombo advised his Punjabi-speaking client not to accept the standard plea deal offered to unauthorized immigrants and instead counseled him to go to trial due to his request for asylum.
A few days later, when Colombo tried to visit his client at the Western Region Detention Facility, known as GEO, to talk about the case going forward, he was told by the facility that there was no way for an interpreter to call into the meeting.
Since then, the facility has added a speaker phone for such meetings. Colombo sent advance notice of his next meeting to the facility the following week, but when he showed up the phone was being used by another lawyer needing interpretation.
Courtroom communication
The frustrations have spilled into the courtroom.
Sometimes, the court staff have had their own difficulties lining up interpreters for hearings. Phone connections have been poor. Attempts to ring interpreters living across the country go to voicemail.
When it comes to indigenous languages from Mexico and Central America, judges and attorneys also have to frequently determine whether the defendant’s Spanish is adequate, or if an interpreter is needed for greater understanding.
“Usually with these interpretations I’m a little nervous,” Magistrate Judge Robert Block said in court Wednesday while making such a consideration.
The plea in question was ultimately taken with help from a Spanish interpreter. It went smoothly, taking 12 minutes.
The next case took much longer.
The man — who had been arrested about six miles north of the border fence east of the Otay Mesa Port of Entry more than a week earlier — wanted to plead guilty and be sentenced. A Nahuatl interpreter in Mexico was on the phone to assist, but since he doesn’t speak English, a Spanish to English interpreter was also needed.
The process was painstakingly slow, with double interpretations and the defendant frequently answering questions meant for the attorneys.
About 25 minutes into the proceedings — and only about halfway through — the judge halted the whole thing and declared that he wasn’t comfortable that the defendant was understanding the legal ramifications of the guilty plea.
The defendant remained adamant that he wanted to plead guilty. “Culpable,” he stated — “guilty” in Spanish — adding he wanted to get out and go home.
“I’m listening and being attentive,” he said.
But the judge wasn’t sure. Then the judge turned to attorneys for U.S. Customs and Border Protection, who have been prosecuting the day-to-day illegal entry cases, and asked if they would consider dismissing the case.
“He’s already spent nine days, 10 days in custody,” Block said. While he said he wouldn’t use his authority to dismiss the case, it’s something he said the prosecutors should try. “It seems a miscarriage of justice to let this case go forward,” he said.
The government dismissed the case.
It’s unclear exactly how many illegal entry prosecutions have been dismissed over the past few months due to language issues, although defense attorneys say they are aware of several. Many are because of difficulty finding an interpreter, they said.
The U.S. Attorney’s Office and CBP declined to comment for this story. CBP cited “possible/pending litigation” as the reason.
For some migrants, particularly other-than-Spanish speakers, this is their first interaction with the U.S. justice system. Things need to be explained, such as the role of the judge and the difference between prosecutors and defense attorneys and what happens in a court proceeding.
“Some of the concepts of the U.S. criminal system can’t be directly translated,” said public defender Kimberly Trimble.
All of that takes time, much of which has already been eaten up searching for an interpreter. It’s why many other-than-Spanish defendants don’t proceed with plea agreements that same day, she said.
It isn’t usually a problem for Spanish speakers, who can be processed through quicker.
Last week, a 27-year-old Mexican man could not speak with his attorney all day because of difficulty finding a Tzotzil interpreter. One was finally found for his court appearance that began after 5 p.m.
Through two interpreters, from Tzotzil to Spanish to English, Judge Block advised the defendant of his rights and the charge against him, then set bond at $1,000, without argument.
His attorney, Marc Levinson, asked for the case to be dismissed because he hadn’t been able to discuss a plea deal with his client, information that might have helped the lawyer argue for lower bond.
But the judge didn’t appreciate the interjection, saying oral arguments to dismiss went against his protocol.
“You’re done, Counsel,” Block said.
“So Your Honor is not going to conduct any inquiry as to the availability of this interpreter — being on the East Coast — and my ability to represent this defendant?” Levinson asked.
“Next case,” Block said.
Levinson later filed, in writing, an emergency motion to dismiss and an emergency writ for habeas corpus.
“The denial of an interpreter, who can interpret defense counsel’s advice, questions and information to the accused is essential to the vindication of the Sixth Amendment right to counsel,” Levinson wrote. “Without the ability to communicate, the physical presence of an appointed attorney is nothing more than window dressing.”
The government dismissed the case during a follow-up hearing in front of a different judge.