Translation errors raise legal issues
Posted on Sunday, February 24, 2008
URL: http://www.nwanews.com/adg/News/217741/
When Alejandro Segundo pleaded guilty in 2006 to driving while intoxicated in Rogers, he signed a rights waiver incorrectly translated into Spanish, an interpreter and his lawyer now say.
The form, waiving his right to a lawyer, states that Segundo was charged with “a murder,” and his penalty was “1 anus in jail and a $ 1, 000 fine.”
The waiver-of-counsel form was used in Rogers District Court for years. Every week, Spanish-speaking defendants like Segundo signed the waiver during the process of pleading guilty to misdemeanor crimes.
When Segundo’s attorney challenged his conviction last month, a certified interpreter at the Arkansas Administrative Office of the Courts found several errors in the form.
“We all just assumed the waiver was correct,” Rogers lawyer Doug Norwood said. “I did, the judge did, everyone did. Now, come to find out we’ve been stumbling around in the dark for years, and the thing is hideously wrong.”
Norwood said the waiver was translated years ago by a court clerk who wasn’t certified by the state, although she spoke Spanish.
Court interpreters are spread thin in Arkansas providing services at arraignments, trials and other proceedings. So when it comes to having waivers translated from English to foreign languages, courts are on their own. Many rely on their own staff, who may be bilingual but not certified.
Mara Simmons, director of the Foreign Language Interpreters Program at the Administrative Office of the Courts, said Arkansas would benefit from having standardized court forms that have been translated by a certified interpreter.
The Foreign Language Interpreters Program certifies and provides staff to courts, but it doesn’t have a document translation program, which some states do, Simmons said.
“The problem is, the courts use their own waivers, and each one is different,” she said. “We’ve checked some of these to see if they are correct when the courts have turned to us for help. But since we are so overloaded, we’re referring this work now to a professional translating service.”
Isabel Framer, chairman of the National Association of Judiciary Interpreters and Translators, said Ohio, California and New Jersey are some of the states that have standardized court forms, such as waivers and orders of protection.
“The waivers are especially important because they deal with issues of constitutionality,” Framer said. Last month, a Washington County circuit judge rejected Norwood’s motion to throw out Segundo’s conviction. Norwood argued the waiver was so misleading and convoluted that it was nonbinding. Circuit Judge William Storey said that despite the errors, the intent of the waiver is clear. Still, Norwood said, he’ll challenge the waiver if it becomes an issue in other jurisdictions, such as Benton County. “No one expected this to come up,” he said. “Courts all over the state could start checking their forms and finding errors. This thing could be spreading like the flu.”
LOST IN TRANSLATION Segundo, 40, was arrested for a fourth-offense DWI by Johnson police in September. It was a felony charge filed in Washington County Circuit Court.
Norwood argued that Segundo’s guilty plea to his third DWI in Rogers in 2006 wasn’t valid because of the translating errors in the waiver.
In addition to the “murder” and “anus” references, the waiver states the defendant has the right to a lawyer “to any weather.” It should state he has the right “at any time.”
Where the waiver should read “the purpose of this form,” it states “the purpose of this way.” It has other mistakes. Senior deputy prosecutor Bill Jones, who argued against Norwood, said the waiver’s intent is clear. “Obviously, there are some words that seem out of place and inappropriate,” Jones said. “But at the end of the day, the defendant understood, waived his right and pleaded guilty.” Rogers District Court Judge Doug Schrantz said he’s considering changing the waiver, but he’s not convinced it’s necessary.
“It’s debatable whether the form is translated incorrectly,” Schrantz said. “Every interpreter I’ve talked to — including those certified by the state — said they would have recognized the differences in the words and read them in context to the defendant during the plea.
“ It boils down to, was there any damage in this case ? I don’t really think so, and neither did Judge Storey.”
Schrantz said he has checks in place to ensure that defendants understand the meaning of the waiver.
He gives each a brief explanation of the form and its meaning through an interpreter, he said. If the defendant can’t read, the interpreter reads the waiver to him.
“Either way, we convey the message that is: ‘You may want a lawyer, and if you elect not to, there are ramifications,’” Schrantz said.
Framer, of the national interpreters group, said criminal convictions have been overturned because of bad interpreting, but she’s never heard of it happening with translation errors.
In overturned cases, courts ruled that the true meaning of the interpretation wasn’t conveyed, Framer said.
In Segundo’s case, Norwood said that his client never mentioned that he was confused by the waiver. But Norwood thinks acquiescence is a typical response of Hispanic people to law enforcement, based on experiences in their native countries.
“He just read it and signed it like he was supposed to,” Norwood said. “Spanish-speaking defendants are intimidated by the police and law enforcement in their countries. When a judge says, ‘Read, and sign this,’ that’s what they do.”
Framer, who has been hired to review taped court proceedings to check the quality of interpreting, said she has seen the same reaction by defendants.
“I’ve seen where people will say, yes, yes — they understand, when they don’t really know what’s going on,” she said. “In one case, the interpreter absolutely butchered the Miranda rights, and the defendant still signed, stating he understood.”
Simmons, a certified Spanish interpreter, found the errors in the Rogers waiver. She translated the form from Spanish back to English last month at the request of attorneys in the Segundo case.
While she can’t discuss the specifics of any case, Simmons said legal words and terms can lose their meaning if translated literally. Or a missing accent mark can drastically change a meaning.
If the word “crime,” for instance, is translated literally, it becomes “crimen,” which means a murder or a very serious crime, she said.
“You would never say ‘crimen’ for a misdemeanor,” Simmons said. “Now, you’re raising a misdemeanor to a felony.”
The word “annual,” can be mistranslated to “anus” if an accent mark isn’t placed over the letter “n,” she said. “If all you do is pick up a dictionary or go online to translate, the meaning can be lost,” she said. “A literal translation can mean nothing like what it should.”
SHORTAGES Schrantz said that up until three or four years ago there were only a handful of certified interpreters in the state.
“I have court clerks who are bilingual, and I use them only by necessity,” he said. “We generally use interpreters [the Administrative Office of the Courts ] sends us, but in a nutshell, there still aren’t enough to go around.”
Springdale and Siloam Springs district courts also use waiver forms translated by bilingual staff who aren’t certified.
“I can’t remember who translated ours,” Springdale District Judge Stanley Ludwig said. “It was someone interpreting for me, but it was a long time ago. And I think that was before Arkansas even had a certification [for interpreters ].”
Siloam Springs District Judge Stephen Thomas said city Prosecutor David Bailey reviewed and edited that court’s waivers.
“I don’t know who did the original translation, but our prosecutor is bilingual and majored in Spanish in college,” Thomas said. “He’s a blessing to this court, and we don’t have a translation problem because of him.”
Framer said a qualified interpreter should be fluent in the language, have excellent grammar and also have a technical proficiency in the subject matter.
“A lot of people lack understanding of what it takes to be an interpreter,” Framer said. “Many fall into the belief that just because you’re bilingual, that’s sufficient.”
Simmons said Arkansas has a shortage of certified interpreters, and the need continues to grow especially in smaller courts.
“The courts are trying to remove the language barrier the best way they can, but there just aren’t enough resources,” she said. “This is still very new in Arkansas, and sometimes people don’t understand that just because you’re bilingual, doesn’t make you qualified to interpret or translate.”