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Defendant with no language proves difficult to prosecute
[January 11, 2011]

Defendant with no language proves difficult to prosecute

Jan 11, 2011 (The Philadelphia Inquirer - McClatchy-Tribune Information Services via COMTEX) -- With a flick of his wrist, the interpreter at the front of the courtroom mimed the bang of a judge's gavel, his other hand pointing to the ceiling.

The crude gestures were meant to convey that the case against Juan Jose Gonzalez Luna would be heard in a higher-level court.

Gonzalez's face, however, remained vacant.

Did the 42-year-old -- who is deaf, mute, and illiterate, including no known knowledge of sign language -- understand what had just happened? As Gonzalez has next to no language skills, his case has baffled Montgomery County courts since his arrest on drug trafficking charges late last year. While courts have come a long way in providing access to interpreters in a host of exotic languages, no one is sure how to translate for a man who knows no language at all.

"It's taken a really hard time to communicate even the most basic things," said Ed Rideout, his public defender. "To try to describe legal procedure to someone like that is virtually impossible." Accommodating those with limited access to language is a rare problem in U.S. courts, but one that judges have met with limited success.

Many have avoided the problem, declaring such defendants incompetent to stand trial. Others have relied on a complex and imperfect method of interpretation, one still viewed with skepticism by many in the legal profession.

And while most courts say they do their best, a good effort is not good enough, said Michele LaVigne, a lawyer and scholar at the University of Wisconsin Law School.

It is not, after all, that defendants like Gonzalez are incompetent to stand trial, but that the U.S. court system largely remains ill-suited for trying them.

"The law is a language-based system," she said. "Drop someone in who can't access that immediately, and we still don't know what to do with them." It may seem hard to believe that in an age of federally supported special education, people emerge into adulthood lacking a fundamental grasp of any language.

But 30 percent of deaf children leave secondary school functionally illiterate. Up to 15 percent of them can be categorized as having minimal to no language competence, according to the Wisconsin Department of Public Instruction.

Gonzalez's limited grasp began at infancy in the southern reaches of the Mexican state of Michoacan. Although uncertain of much of his client's history, Rideout thinks Gonzalez lost his hearing after a severe fever as a baby -- a story reenacted through pantomime.

With no formal education and little exposure to other deaf people, Gonzalez grew up virtually without language. He has picked up a few signs over the years.

But this inability to communicate is exactly what made him a valued member of a King of Prussia-based drug trafficking ring, prosecutors say.

Detectives arrested Gonzalez Oct. 8 after a purported cross-country smuggling drive, from Las Vegas to the Philadelphia suburbs, and seized more than two pounds of cocaine from his car.

"He makes the perfect drug mule," First Assistant District Attorney Kevin Steele said. "He can't consent to a search. He can't answer any questions about the operation." Gonzalez has shown some limited ability to communicate.

Arriving at a recent preliminary hearing, he motioned toward detectives gathered around him. He pinched at his neck as if adjusting an invisible necktie. He bent his other arm mid-torso and clenched its fist, mimicking a heavy briefcase.

"He can't talk to the judge," one detective joked. "But of course he knows how to ask for his lawyer." That assumption -- that because such a defendant can convey basic messages, he is faking his inability to understand in the courtroom -- is common, said Brandon M. Tuck, a Houston lawyer and author of a University of Pennsylvania Law Review article on dealing with witnesses with limited language.

In many recent cases, declaring incompetence for trial has become a standard reaction, Tuck said. Many judges order confinement to institutional language programs, hoping the defendant can be taught American Sign Language and eventually stand trial.

To work, though, the approach depends on a suspect's aptitude and willingness to pick up a new form of communicating late in life, said LaVigne. And the only incentive for many is the threat of possible prison time.

"ASL is a tough, tough language," LaVigne said. "There are some people who are just unreachable through this method." After watching one of his own cases linger in New Jersey courts for nearly two decades, Passaic County Prosecutor Joseph Del Russo questions whether it works.

A judge first found one of his defendants -- a Paterson man accused of raping two children -- incompetent for trial in 1992. He ordered him to undertake ASL training at a state hospital.

Every six months since, the case has been called back for review. Each time, the result is the same. The defendant appears no closer to communicating.

"What other choice do we have?" Del Russo said. "We can't let these people commit crimes without recourse." An alternative to forced sign language education has emerged over the last two decades. Known as relay interpreting, the process attempts to reach limited-language defendants through two interpreters working in the courtroom -- one who translates from spoken English to ASL, and another who uses makeshift gestures and pantomime to communicate with the defendant.

An interpreter who was born deaf is essential in the second position, experts say, because that person is more attuned to thinking in strictly visual terms.

This second interpreter may spend hours prior to a hearing or trial working out an idiom unique to each defendant.

Consider the following example borrowed from Tuck's 2010 law review article: A prosecutor asks a limited-language witness, "Did you take the train home last night?" The ASL interpreter signs an approximate translation to the relay.

The relay interpreter then communicates the basic notions in a nonlingual fashion. He might hold out one arm to symbolize the horizon; on his other arm a clenched fist represents the sun. To convey the concept of night, he might move his fist below his outstretched arm.

As for the train, the interpreter could pantomime a scene the defendant would recognize in relation to train travel such as paying for a ticket at a turnstile.

But while relay interpreting has met with some success in reaching limited-language defendants, the process is both time consuming and costly.

What's more, this makeshift way of communicating can be inexact by legal standards. One can easily imagine pantomime for a lawyer or a train ride, but pantomiming a plea bargain is far more difficult.

Facing few other options, the Montgomery County courts have chosen relay interpreting to deal with Gonzalez. Their efforts have met with limited success.

At his preliminary hearing Monday, District Judge James P. Gallagher was satisfied that Gonzalez had at least a basic notion of why he had been arrested.

Though the man likely missed the finer points of the proceeding, Gallagher ordered the case held for trial.

But that three-minute hearing required hours of preparation, said Rideout, the public defender.

Interpreters used props, maps, and photos of cocaine and vehicles to explain to Gonzalez the charges he faces. At times it looked as if they were getting nowhere.

"I had to tamp down our interpreters," a harried Rideout said moments before entering the courtroom. "They're ready to say this isn't working. I say, let's just get through this hearing." Contact staff writer Jeremy Roebuck at 610-313-8212 or [email protected].

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