To enhance the integrity and quality of what takes place in court, to foster fairness and respect for the judicial process, the First and Sixth Amendment demands that a defendant be allowed access to court and the ability to participate in the judicial process. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-06 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,578, 580 (1980). The values that animate the presumption in favor of access require as a "necessary corollary" that, once access is found to be appropriate, access ought to be "immediate and contemporaneous." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791 (1976)
The right of access to the court extends not only to a trial itself but to pretrial proceedings. Waller v. Georgia, 467 U.S. 39, 44, 45, 47 (1984); Ayala v. Speckard, 131 F.3d 62, 68-69 (2nd Cir. 1997). This right of access includes access to court proceedings as well as the record and documents. Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994); see also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819 (1984); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306 (1978).
THE AMERICAN WITH DISABILITIES ACT TREATS DEAF DEFENDANS AS A DISCRETE AND INSULAR MINORITY REQUIRING EQUAL PARTICIPATION IN COURT PROCEEDINGS
The Americans with Disabilities Act 2 ("ADA") 42 U.S.C. §§ 12101-12213 seeks to secure the acceptance of persons with disabilities into most of the daily activities by requiring accommodations be made for their disabilities. The ADA states that individuals with disabilities are a "discrete and insular minority." This language is taken directly from United States v. Carolene Prod. Co., 304 U.S. 144, 152 n.4 (1938) (Justice Stone's formulation to determine whether a discriminatory classification should be given "more exacting judicial inquiry" or whether such classification requires only a rational basis to be upheld). By using the "discrete and insular minority" language, Congress defines people with disabilities as a minority group with the power to deflect challenges to the ADA unless those declining to accommodate disabilities can demonstrate a 'compelling state interest" for the discriminatory treatment. Therefore, any violation of the ADA must be viewed as a violation of the Equal Protection Clause. People with disabilities constitute a broad constituency which has traditionally been denied equal, active participation in the courts. Perlin, On "Sanism", 46 SMU L. REv. 373 (1992).
Congress found that individuals with disabilities are a discrete and insular minority who face restrictions and limitations resulting from stereotypic assumptions not truly indicative of their abilities to participate in and contribute to society. 42 U.S.C. § 12101 (a)(7). Thus, classifications that segregate persons with disabilities are to be given the same level of constitutional scrutiny under the ADA that classifications based upon race are given under the Fourteenth Amendment and the federal civil rights laws. Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 TEMP. L. REv. 393, 397, 433-39 nn.280-235 (1991).
In order to qualify for statutory protection under the ADA, a person must be a "qualified individual with a disability." 42 U.S.C. § 12111(8) (1992); 28 C.F.R. § 35.104. Qualified individuals with disabilities are those who: (a) have a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) have a record of such an impairment; or (c) are regarded as having such an impairment. 42 U.S.C. § 12102(2) (1992). This definition is drawn from § 504 of the Rehabilitation Act, 29 US.C. § 706(8). Disabilities are listed at 45 C.F.R. 84.3(j)(2)(i) and 28 C.F.R. § 35.104. The act covers physical impairments including any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting any one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory (including speech organs); cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. Mental impairments include mental or psychological disorders such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. U.S. Dept. of Justice, Americans With Disabilities Act, Technical Assistance Manual Title II, No. 1 BUSINESS MANAGEMENT GUIDE (CCH, March 5, 1992). The legislative history makes clear that the term includes such conditions, diseases, and infections as: orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, asymptomatic and symptomatic HV, mental retardation, emotional illness, specific learning disabilities, and past drug addiction. 28 C.F.R. § 35.104. See also S. REP. No. 116, 101st Cong., 1st Sess. 22 (1989). PTSD is a covered disorder under the ADA. Paul F. Mickey, Jr. & Maryelena Pardo, Dealing with Mental Disabilities Under the ADA, 9 LAB. LAW. 531, 535 n.17 (1993). Importantly, under the ADA, protection is also extended to individuals with a record of impairment, but who may not now be impaired. 42 U.S.C.§ 12102(2)(B); 28 C.F.R. § 35.104.
Part A of Title II and the Department of Justice (DOJ) regulations promulgated thereunder state that "no qualified individual with a disability shall, by reason of such disability be excluded from participation in or denied the benefits of the services, programs or activities of a public entity,” Public entity is defined as any state or local government, any department, agency, or instrumentality of a state of local government, the National Railroad Passenger Corporation, and certain rail commuter authorities. 42 U.S.C.§ 12131(1) (1990); 28 C.F.R. § 35.104. A Court is a public entity to which the ADA applies. The Wisconsin Judicial System has admitted as much. http://www.wicourts.gov/services/public/ada.htm
A trial court must therefore provide the following accommodations to a deaf defendant:
- Before proceeding with the competency hearing, the defendant’s IQ should be determined. This testing should be administered by an educational psychologist who can also determine at what educational level the defendant reads and writes. If the defendant has a low IQ, she may not have linguistic competence to stand trial. M. Vernon & L.J. Raifman, The Miranda Warnings and the Deaf Suspect, 14 BEHAV. SCI. L. 121-135 (1996). The defense has filed a brief explaining the meaning of the term “linguistic incompetence.” Having a low I.Q. also demonstrates the defendant’s vulnerability to being led astray, taken advantage of, and not being fully aware of the significance of the crime with which she is charged.
- During all court proceedings involving the defendant, a certified interpreter should be present. Because the defendant has poor English language skills as a result of being deaf, the defense would request a certified deaf interpreter (CDI). However, if the defendant prefers, the defense would accept closed captioning rather than a sign language interpreter if the defendant has the ability to read with understanding.
- During all court proceedings, a certified deaf interpreter should be made available to the defense so that the defendant and her attorney can interact with one another.
- The defense would respectfully request that all court proceedings be videotaped and audiotaped. This is the only way to obtain a complete record can be made of the court proceedings. Otherwise, there is no record of what was said in sign language while in court. In addition, the videotape makes it possible to assess the competence of the interpreter and exactly what the interpreter signed.
- At all court hearings, the interpreting be done consecutively, not simultaneously. This makes the interpreting far easier to do correctly.