Alcala: Texas judiciary fails to protect constitutional right to interpreters for non-English speakers

"It seems that, despite the great strides that Texas's criminal-justice system has made in ensuring that all people will have fair trials, for every two steps forward there is one step back," Judge Elsa Alcala at the Texas Court of Criminal Appeals wrote in a dissent issued this week lamenting the failure of the high court to enforce defendants' right to an interpreter. Chuck Lindell at the Austin Statesman has an article on the case (June 11). His coverage opened:

In an unusually blunt condemnation, Texas Court of Criminal Appeals Judge Elsa Alcala rebuked her court Wednesday for endangering the rights of non-English speakers and for being “a stumbling block in the path toward a better criminal-justice system.”

The case that riled Alcala, and two fellow judges who joined her fiery dissenting opinion, involved Irving Garcia, who is serving a 20-year prison sentence for fatally shooting a man about a dozen times outside a McAllen shopping center in 2010.

Garcia, a Spanish speaker who doesn’t understand English, declined the trial court’s offer of an interpreter on the advice of his lawyer, who spoke Spanish and briefly summarized the testimony of 13 English-speaking witnesses for his client.

The problem, Alcala wrote, was that the trial judge and defense lawyer didn’t fully advise Garcia of his constitutional right to an interpreter, impeding his ability to confront the witnesses against him. Garcia, 25, should be granted a new trial with a full-time interpreter, she concluded.

Instead, six members of the court determined that Garcia’s murder conviction was proper. While defendants must be provided an interpreter if they cannot understand English, they can waive that right if desired, the majority determined.

Alcala, however, argued that Garcia’s lawyer, not named in the opinion, declined an interpreter during an off-the-record meeting at the desk of District Judge Bobby Flores, who failed to question Garcia about his choice. Had he asked, Alcala wrote, Flores would have learned that Garcia’s decision had been coerced by his lawyer, who claimed an interpreter would be a distraction that would hinder his ability to provide quality representation.

Defendants cannot waive a constitutional right through coercion, Alcala said.

By failing to uphold Garcia’s right to understand the legal proceedings against him, she added, the majority delivered a “smoke-and-mirrors” ruling that jeopardized the rights of an estimated 2 million people in Texas who, like Garcia, don’t speak English.

Alcala's statement about two steps forward, one step back was not just a general observation but also a specific comment on the provision of translation services in Texas courts:

The Texas criminal-justice system has recently taken two steps forward with respect to providing for language access in courts. First, according to the Office of Court Administration (OCA), the Texas Legislature has recently provided funding for a Language Access Program to "help reduce linguistic barriers to meaningful justice in Texas courts." Second, as of April 2014, the "Texas Court Remote Interpreter Service (TCRIS) has now completed four months of successful operation, responding to requests from 52 judges in 39 counties for 157 hearings, for quality Spanish interpretation by licensed court interpreters." Despite these two steps forward to provide language access for non-English-speaking defendants in court, this Court's majority opinion takes the Texas criminal-justice system one step back in this regard. Here, although an interpreter was actually present in the trial court ready to provide his translation services for appellant, the trial court did not use him to translate for appellant, not even to ask appellant if he knew he had a right to an interpreter, if he wanted to waive one, and if so, whether his waiver was being made intelligently, knowingly, and voluntarily. Regardless of any steps taken by the Legislature and the OCA to provide language access for defendants in court, this Court will continue to constitute the stumbling block in the path toward a better criminal-justice system in Texas until a majority of the judges on this Court consistently enforce the federal constitutional right to an interpreter.

Alcala concluded that "This is not a problem caused by a lack of funding or inadequate access to interpreters, but is instead one that implicates a judicial failure to enforce federal constitutional rights."