ATTORNEY PAUL A. KSICINSKI 414-530-5214
ATTORNEY PAUL A. KSICINSKI
TOP 100 WISCONSIN CRIMINAL DEFENSE LAWYER
​414-530-5214
  • Home
  • References
  • PEER ENDORSEMENTS
  • PAST CASES
  • Blog
  • Contact
  • KNOW YOUR RIGHTS
  • How to deal with police
  • Practice Areas
  • About
  • Criminal Law Links
  • News

Discussion of current legal issues

Henry Nellum case selected by USA Network as a compelling homicide trial to keep an eye on in 2018

Button Text

Is it the nature of the American judicial system that defendants be condemned not only in innocence but also in ignorance?

6/21/2019

0 Comments

 
Picture

The title of this article is of course a slight modification of a line contained in chapter 4, paragraph 1 of “The Trial” by Franz Kafka.  The picture comes from a leaked photo from a Texas courthouse shows 37 people accused of illegally entering the US being processed all at once.  This leaked photograph shows 37 defendants in orange prison jumpsuits shackled at the hands and feet to be processed en masse as part of the ongoing US clampdown on illegal immigration.  The image, leaked to the media, gives an unfamiliar glimpse into "Operation Streamline," a prosecution system in which up to 70 defendants in immigration cases can be charged and sentenced at once.
 
It is disgusting display in an American court.  Anyone who believes in justice should revolt against such a system that allows this procedure.
 
The initial issue arising from this procedure is whether someone who does not speak English (regardless of their primary language), or has English as a 2nd language, can make a knowing, voluntary and intelligent waiver of rights necessary to enter a guilty plea.
 
Unlike the Fourth Amendment, the Fifth Amendment applies to each "person." Accordingly, the Fifth Amendment applies to all persons within the United States, irrespective of their immigration status.  See Plyler v. Doe, 457 U.S. 202, 210 (1982); Wong Wing v. United States, 163 U.S. 228, 237 (1896).  The Supreme Court has recently reaffirmed that resident aliens in the United States "are entitled to the same protections under the [Self-Incrimination] Clause as citizens." United States v. Balsys, 524 U.S. 666, 671 (1998)  Similarly, Miranda protects aliens, lawfully present or otherwise, against the inherent pressures of custodial interrogation. See United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996); Barrera-Echavarria v. Rison, 44 F.3d 1441, 1449 (9th Cir. 1995); United States v. Henry, 604 F.2d 908, 914 (5th Cir. 1979).
 
This "concept" that has "become part of our national culture" is the notion that individuals enjoy a right to remain silent when questioned by police officials.  Dickerson v. United States, 530 U.S. 428, 443 (2000).  A clear statement of Miranda rights are critical to the integrity of the American legal system.  After all, if someone is not aware of his Fifth Amendment right against self-incrimination, then the right may as well not exist.  Miranda v. Arizona, 384 U.S. 436, 466 ( 1966).  Thus, Justice Scalia, a critic of Miranda, found it "implausible" that in "the modern age of frequently dramatized 'Miranda' warnings," a "person under investigation may be unaware of his right to remain silent[.]"  Brogan v. United States, 522 U.S. 398, 405 (1998).  Clearly, "right to remain silent sounds like a bedrock principle, and everyone knows about it."  Orin Kerr, Do You Have A Right to Remain Silent? Thoughts on the "Sleeper" Criminal Procedure Case of the Term, Salinas v. Texas, THE VOLOKH CONSPIRACY (June 17, 2013).
 
In the case of People v. Gutierrez, 137 Cal. App. 3d 542, 546, 187 Cal. Rptr. 130, 132 (Cal. Ct. App. 1983) it was found that where a trial court's does not allow defense counsel to ask a defendant's exact words in Spanish violated the Sixth Amendment.  This is important because of critical differences between the English language and the Spanish language.
 
For instance, there is the problem of false cognates in the Miranda warnings.  A cognate is an easy word to remember because it looks and means the same thing as a word you already know.  The Spanish verb "apuntar" looks like the English word "to appoint." "Apuntar," however, does not meant "to appoint"; it means "to point to." The proper Spanish verb for "to appoint" is "otorgar."  State v. Santiago,  206 Wis.2d 3, 18, 556 N.W.2d 687, 691  (1996) (discussing the "apuntar" false cognate), see also United States ex rel. Verdin v. O'Leary, 1990 WL 103653, * 7 (N.D. Ill. July 3, 1990) (noting the difference between the Spanish words for "to point to" and "to appoint"), rev'd, 972 F.2d 1467 (7th Cir. 1992).
 
Likewise, there can be a problem in translation if the target language may have two or more different words for two or more different meanings of an English word. In State v. Ramirez, the interpreter used the Spanish word for "the right hand side" ("derecha") instead of the Spanish word for "right" in the legal sense ("derecho"). See State v. Ramirez, 135 Ohio App. 89, 1999 WL 1313670, *4 (Ohio Ct. App. Dec. 27, 1999).Additionally, the interpreter told the suspect in Spanish that he had rights underneath ("bajo") the law in a physical sense rather than on the basis of ("de acuerdo con") the law. Id

Tell me than did this mass appearence in a court allow for free, voluntary and intelligent pleas?
0 Comments



Leave a Reply.

    Author

    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

    Archives

    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    February 2021
    January 2021
    November 2020
    October 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    October 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014

    Categories

    All

    RSS Feed

Powered by Create your own unique website with customizable templates.