Tuesday, April 3, 2012
Assume that a defendant is charged in a twenty-nine count indictment stemming from a crack cocaine conspiracy. And assume that after the defendant is convicted and sentenced, he brings a motion to vacate, set aside, or correct his sentence. Part of the basis for his motion is that he doesn't speak English and that the interpreter who translated the trial proceedings for his benefit failed to communicate to his trial counsel that he had voiced an intent to exercise his Fifth Amendment right to testify. How difficult will it be for the defendant to prove that the interpreter acted improperly? According to the recent opinion of the United States District Court for the Western District of Virginia in Michel v. United States, 2012 WL 102000 (W.D.Va. 2012), the answer is "pretty difficult."
In Michel, the facts were as stated above, with Adelson Michel claiming that his Haitian Creole interpreter failed to communicate his intent to exercise his Fifth Amendment right to testify to his trial attorney. In addressing this argument, the Western DIstrict of Virginia initially noted that
A number of state courts have recognized that "[t]here is a rebuttable presumption that an interpreter in the course of performing his official duty has acted regularly."...Furthermore, a limited number of federal courts have likewise recognized that, "upon a collateral attack, an...interpreter is cloaked with the presumption of regularity, which 'allows a court to assume that an official or person acting under oath of office will not do anything contrary to his or her official duty.'"
Moreover, the court found that
even without this supporting authority, a presumption of propriety should accompany a court interpreter in the performance of his or her official duties. The law recognizes many presumptions that place the onus to adduce rebuttal evidence on the party attacking the presumption....
In support of its belief that the law should reflect a presumption of propriety in favor of court interpreters, the court notes that courts in general have recognized that various professionals are entitled to presumptions that they perform their duties accurately.... This court is of the opinion that court interpreters should likewise be accorded such a presumption in the execution of their official duties. Court-appointed interpreters qualify for service based on their ability to satisfy certain objective standards....In addition to qualifying for service, federal court interpreters must "give an oath or affirmation to make a true translation."...
Based on the requirements that court interpreters must satisfy certain objective standards and must take an oath to translate truthfully, and based on the decisions of other courts assigning similar presumptions to other qualified professionals, this court holds that court interpreters are entitled to a presumption that they execute their official duties with propriety, accuracy, and integrity. To rebut this presumption, an individual must adduce specific evidence of impropriety by the interpeter.
Having found this new "interpreter presumption," the court found that it was fatal to Michel's motion. According to the court,
Applying this presumption of propriety to the facts of the instant case constrains the court to conclude that Michel has adduced no specific evidence demonstrating impropriety by the court interpreter at trial. Although Michel alleges that the court interpreter failed to convey to [his trial attorney] the invocation of Michel's right to testify, Michel conceded, after further probing by Judge Crigler at the evidentiary hearing, that he, in fact, did not know whether the interpreter conveyed his request to [his trial attorney], because the trial transcript did not reflect such communications....Hence, by Michel's own admission, he lacks any specific evidence that the interpreter failed to communicate to [his trial attorney] his invocation of his right to testify. For this reason, Michel has failed to overcome the presumption of propriety in favor of the court interpreter who served at his trial.