Well, now. This is a really interesting dispute. I'm not completely sure what I think about it.
Everyone agrees on the factual underpinnings. Richard Sokau had a terrible interpreter at his trial. A really, really terrible one. The judge knew it; the prosecutor knew it; the defense counsel knew it; and I'm sure everyone in the courtroom knew it as well. I'm not sure how hard it is -- or should be -- for a certified interpreter to translate Palauan (the language of Palau) into English and vice-versa. But the interpreter here failed on nearly every metric.
On that everyone agrees.
But what to do about it?
On the one hand, the defendant here probably spoke fairly decent English himself, as evidenced by his ability to answer a few initial questions in English. Plus, even though the defense counsel was clearly frustrated by the interpreter's incompetence, it's not like counsel repeatedly objected, or asked for a mistrial, or even asked for a new interpreter. So maybe there's waiver. Or it's no big deal.
On the other hand, there is a state constitutional right to an interpreter in a criminal trial. And it's got to be a competent interpreter. Otherwise you're not getting the rights to which you're entitled. Plus, the interpreter here was so bad that the jury might have viewed the defendant's testimony -- which was riddled with interpreter-induced inconsistencies -- disfavorably, perhaps leading to a conviction in this he-said-she-said credibility contest.
So what do you do?
Justice Yegan writes the majority opinion, and says it's no big deal. The defense didn't do a very good job at objecting. And the jury got to hear the "basics" of Mr. Sokau's defense anyway. So the Court of Appeal's not going to grant relief.
Justice Gilbert dissents. He thinks it is a big deal. That the defendant objected enough and that it's a pretty big deprivation to have your state-provided interpreter totally botch your testimony.
Both sides make decent points.
My own views -- which leave me uncertain -- stem from my internal comparison of the right to a competent interpreter to the right to competent counsel.
Both are in the California Constitution. Both are felt to be essential to a fair trial. The state attempts to satisfy both by appointing people to assist the defendant. Given these similarities, it strikes me as fairly reasonable to maybe apply the same doctrines in one area that we do in the other. And since the "right to competent representation" doctrines are extraordinarily well-developed, I wonder if it might be enlightening to apply these principles to the fairly novel (to me, at least) area of "right to competent interpretation."
If that's right, I'm inclined to be more sympathetic to Justice Gilbert's conclusion. I don't have any doubt that if Mr. Sokau's court-appointed attorney was as terrible as his court-appointed interpreter, the trial court and Court of Appeal would grant him a new trial. And that this would be the result even were it true that the incompetent attorney still got the "basics" across to the jury and even if there was only a halfhearted objection to counsel's ineptitude. If that's the case, why not apply those same principles to incompetent interpreters? Seems like it's pretty important to have the jury actually hear what you're in fact saying, as opposed to some butchered summary coming from the mouth of an inept interpreter. Especially when your life and/or liberty's on the line. The fact that this right is enshrined in the California Constitution only amplifies the point.
Do I think the defense attorney -- or the judge, or even the prosecutor -- should have expressly asked for a mistrial here, or at least (at a minimum) that this incompetent translator get booted? Absolutely.
But I'm not sure that's a bar to relief. Any more than I would think that a defendant's failure to ask that his incompetent attorney get booted should bar him from relief either.
