by Dr. Erik Camayd-Freixas
From: The Translation Journal
On June 13, 2008 I finished an essay, Interpreting after the Largest ICE Raid in US History, and circulated it among my fellow interpreters who worked on the court cases in Waterloo, Iowa from May 12-22, 2008.
I did not speak for the migrants. I spoke for democracy, due process, constitutional rights, and the dignity of the federal court, as is my obligation to do. |
Within two weeks, through the online grapevine, the essay, which was no longer mine if it ever was, had reached Congress and the media.
Aside from my Waterloo colleagues, I initially sent the essay to the American Translators Association to be considered for publication by its trade journal, The ATA Chronicle. I did not foresee that the essay would spread like wildfire over the internet. Numerous friends and colleagues, as well perfect strangers, urged me to permit its distribution far and wide. That is when I decided to send the essay to The New York Times.
My intention, when I sent it to my colleagues and the Chronicle, was only to debrief emotionally with those who were there, after the trauma of Postville, and to publish in a trade journal. It was an educational case study in interpreter ethics for my fellow linguists, nothing more. Hence the title and focus of the essay, addressed to the professional readership of the ATA.
When I sent the essay to the Times, my intention was for them to conduct an investigative report on some of the problems mentioned therein. Instead, the Times journalist decided--which is her prerogative--to write an article about my speaking out, more than about the contents of my message. As such, the Times article raised a question that needed to be asked and answered before one could discuss the real issues documented in the essay. That question regarded the propriety of my decision to speak out despite the confidentiality clause in the interpreters' code of ethics.
By so doing, the Times article adopted a polemical strategy designed to spark a general readership's interest, but not specifically addressed to the professional. As a result, it answered only partially the question it raised, and lacked the rigor that an interpreter readership would require.
No article, in any case, can release me from owing a direct explanation to my colleagues and students, about a decision which reflects on the entire profession and its public image. Therefore, once the Times of July 11 elevated the matter from private e-mails to a very public focus on the interpreter's role in the judiciary, I did not want to delay this explanation. My intention now, in writing this ethical analysis of my decision, is to call on NAJIT to review the case. My justifications follow.
I have been a court interpreter since 1981, was federally certified in 1985, and have practiced in eight states and hundreds of cases. Never before have I made any public comment about a case. The Postville case was an extreme situation, with exceptional attendant circumstances of force majeure.
I do not advocate any intervention by other interpreters in a case, except as a last resort in extremely extenuating circumstances--and then, only if no one else can assume that burden. Moreover, before intervening, the interpreter must know exactly in what manner and how far to intervene, and must previously discharge the obligation of consulting with colleagues.
My decision met all of these requirements and more.
In this case, as I explain in my essay, only an interpreter was in the unique position both to be impartial and to participate in all aspects of the proceedings. There was no one else. I could not look for any of the other interpreters to assume this burden, which evidently entails a significant professional risk. I, on the other hand, was in a better position than most to do so.
Being a professor of interpreter ethics, director of a major T&I university program, and an internationally recognized authority in the field, I knew exactly what I was doing, as well as how and why. I could not expect others to take the lead, nor was I about to let diffusion of responsibility result in no action being taken where action was due. It was clear to me that this was my unavoidable responsibility, and that my colleagues would unequivocally support me.
Still, the first thing I did was extensive research on the legal issues and problems at the core of what appeared to be an inescapable ethical conflict. The second thing I did after writing the essay was to share it privately with a U.S. District Court judge and with my Waterloo interpreter colleagues before releasing it to any non-court personnel.
Only when I saw that the judge did not admonish me, and that I had strong consensus and support from my colleagues, did I approve distribution and eventual publication of my personal account to the general public.
However, the Times article's suggestion that I "broke" the confidentiality code in order to speak up for migrants is both technically and factually inaccurate. First, I did not speak for the migrants. I spoke for democracy, due process, constitutional rights, and the dignity of the federal court, as is my obligation to do. Everything else in my essay is qualitative and quantitative documentation, description, and analysis in support of my expert testimony.
The interpreter code of ethics, in particular the clause of confidentiality, has as its meaning and rationale that the interpreter must not influence the outcome of the case. The Postville case had been closed, and its 10-day deadline for appeal had expired before I even began the essay. I do not mention any names and aside from anecdotal information of a general nature, all the facts mentioned are either in the public record or freely available on the internet. So I was careful not to break the code of confidentiality.
Moreover, confidentiality is not absolute. There are other ethical requirements which override confidentiality. For example, a medical interpreter, in whom a patient confides that he has an epidemic disease, has the obligation to report it because it is in the public interest to do so. Similarly, in the Postville case, there were higher imperatives arising not only out of public interest but also out of the legal role of the court interpreter.
The court interpreter is defined in the federal rules of procedure as both the court's expert witness as well as an officer of the court. Rule 604 of the Federal Criminal Code and Rules (1989) states: "An interpreter is subject to the provisions of these rules relating to qualifications as an expert." Rule 702 states that an expert witness "may testify thereto in the form of an opinion or otherwise." In regard to the role of officer of the court, the interpreter is bound by the same duties as other such officers: "One responsibility officers have is that they must reveal anything that could affect their fairness and impartiality. Above all, the court officer is sworn to uphold the truth and never to perpetrate a fraud upon the court. Officers must also be candid with the court at all times" (Dueñas, Vásquez, and Mikkelson, 1991, p. 160).
Dueñas et al. (1991) state that "Rule 604 is not clear as to whether the interpreter is an expert witness at the start of proceedings, or only if there is a challenge to an interpretation." However, this is not actually the case. In the absence of specifically limiting language, the interpreter is always both an officer of the court and an expert witness (e.g., the interpretation can be impeached at any time). I believe the Postville case sheds clear light on this issue. As an expert officer of the court, the interpreter has a constant obligation to bring to the attention of the court any source of miscommunication, error, or misunderstanding, which may compromise the integrity of the record or the administration of justice, regardless of whether an interpretation is challenged. That is, the interpreter never ceases to be the court's expert witness, and never ceases to be an officer of the court.
Further, the rule of impartiality dictates that the interpreter may never be an expert witness for either the defense or the prosecution, but only for the judge.
In the case at hand, magistrates, judges, and other officers of the court participated in only one aspect of the judicial process and were unaware of the unfolding consequences. For instance, the magistrates never knew that the denial of bail would contribute down the line to a coerced guilty plea. Only the interpreter was present throughout the entire process, from beginning to end, to be able to follow the chain of cause and effect.
Both as an officer of the court and as the court's expert, I had the obligation to be candid with and inform the court of my expert observations and opinions. That is exactly what I did, acting in the best interest of the court. I talked to a judge then and there, but at that point I was only able to give sketchy information, and I understood that the judge had no discretion to stop the judicial freight train that had been set in motion. There were many complicated issues. So I had to wait until the case was closed, conduct extensive research, and finally write a fuller account of my expert observations and opinions. Then I sent it to the judge and to the other interpreters who could corroborate the different aspects of my observations and personal account. At that point the case was closed and there was nothing that the court could do, so my account became a matter for public and, ultimately, congressional inquiry.
As the Clerk of Court would often say, "This is a learning experience for all of us." For ICE and the DOJ, of course, it was a resounding success. But this was not the court's crusade. For the court, all that mattered is that we get the job done in a fair manner and with due process of law. It was indeed a learning experience for all of us, but the judges were unable to judge the results of that experience, because they were not there at every step of the way. That is why, as a court expert with specific relevant knowledge of the case, I had an obligation to inform the court so that it could evaluate the outcome of this new and ambitious "fast-tracking" enterprise.
My expert opinion, however, was that, as it turned out, this was an experiment gone awry. What was most peculiar about the Postville case is that, on paper, everything seemed to be following the law, but in actual practice there were shortcomings in due process at every step of the way (see my Statement to Congress of July 24, 2008). Each shortcoming, taken by itself (which was how other officers of the court would see it) did not appear so monumental, but put together (as the interpreters saw it), led to the most unjust results. If following the law step by step leads to such absurd consequences, then the scope of the law needs to be changed, making this a matter for Congress.
But whatever my duties as an interpreter, I had an overriding responsibility as a citizen. Having served in federal and state courts as an expert witness in forensic linguistics, my essay presents authoritative evidence regarding grave matters of public policy in areas that are currently of vital national interest; namely, immigration enforcement and immigration reform. The public good outweighed any personal or professional consideration.
Respectfully submitted,
Dr. Erik Camayd-FreixasJuly 16, 2008
Appendix: Some Questions and Answers
Q: Will this lead to interpreters telling on attorneys if they believe that attorneys are not doing their job?
A: I never spoke against any individual or group, only against a broken system and lack of due process. On the contrary, I have publicly defended attorneys, judges, ICE agents, and prosecutors, stating that all were doing their duty, in the absence of immigration reform.
Q: Why did you not withdraw, but rather continued on the case, when you realized that you might have a possible conflict?
A: As I explain in the essay, I did not have enough evidence to determine if a conflict of interest existed. I did, however, determine that my impartiality would not be affected, and it was not affected. All my determinations and findings were arrived at from an impartial perspective (judges and juries do not cease to be impartial once they make their findings and judgments). Finally, I expected that the entire systemic problem with fast-tracking could be corrected at sentencing. So it was not until I saw that judges had no sentencing discretion that the conflict situation appeared in full view. By then I was only a day or two from finishing the two-week assignment.
Furthermore, it was the court's conflict, not my own. In accepting to conduct its continuity of operations exercise at ICE's expense, the court unwittingly acquired a conflict of interest. The overt manifestation of this conflict came when the court worked double shift to meet habeas corpus and accommodate ICE prosecution, raising the question of whether it was quid pro quo and a patron-client relationship had been established. Also, the court was co-opted into an ICE-led operation, failing to maintain physical and operational independence from ICE prosecution. This resulted in a failure to maintain the appearance of impartiality. This created instead the appearance that the court was an extension of ICE, which led some clients to distrust even their own defense attorneys, thinking that they were part of the same system.
Q: Did I break attorney/client privilege in discussing individual cases or even by speaking of the case in general, since people might be able to identify who the judge and defendant were?
A: There were 306 defendants in this case. I mentioned no names. The cases were already closed and the appeal period expired. I did not compromise the defense's case in any way; quite the contrary. And I knew from the outset that my actions were not detrimental to any individual on either side. Whether people can identify the judge is immaterial: the judge's previous rulings referenced in the essay are a matter of public record.
Q: Why did I not report to the judicial council?
A: I reported to the presiding judicial officer. In so doing, I fully discharged my obligation. Reporting to the judicial council is the prerogative of judges and attorneys, not of the interpreter. The interpreter only reports to the judge. In this case, the judge had no discretion to amend the proceedings, much less after the cases were closed. This made it all the more evident that the criminalization of migrants was not a legal decision, but rather a public policy decision made without congressional approval, which lay outside the purview of the judicial branch and within that of the legislature. The public interest aspect of the Postville case was reinforced by the fact that it had clear, direct, and serious implications for immigration reform, which is urgently in the national interest. In short, public interest in this case far outweighed individual and professional considerations, and this interest extended well beyond the judiciary.
Q: The essay indicated that individuals were not guilty, which is an opinion that an interpreter cannot give.
A: It is not an opinion; it is a conclusion of fact. The interpreter is the court's expert witness, and Rule 702 states that an expert witness "may testify thereto in the form of an opinion or otherwise." The elements of the crime described in the plea agreement included the elements of "knowingly" and "with intent to deceive." In my expert opinion, five out of nine defendants we interviewed in depth did not know the meaning of a Social Security number. This finding rendered their guilt a logical impossibility. Given that this result was obtained from a random sampling of defendants, it can be stated with a high degree of statistical confidence that some of the 300 defendants were not guilty. How many, we will never know, because they were forced to plead guilty anyway, without describing the individual circumstances of each case. Finally, my opinion is legally irrelevant because their innocence need not be proven: the burden of proof lies with the prosecution.
Q: Prosecutors always overcharge to obtain a plea. What was different about this case?
A: Any criminal defendant has a 6th Amendment right to reasonable bail. These common workers were denied bail hearings because of their underlying immigration detainer. The combination of no bail, no speedy trial, overcharging, and holding their children's survival ransom equals coercion and subornation of plea.
Q: Defendants are frequently shackled. What made this worthy of special attention?
A: Defendants are shackled in court only when they pose a danger, either because they are presumed to be violent criminals, or because they are brought to court in groups. In this case, they were brought to court in groups, but they were individual cases. Their right of severance was violated. Single, non-violent defendants are also allowed to come to court in business suits, even if they are in detention. In this case, the shackles were unwarranted for safety, and only served to label the defendants as criminal aliens. The words "presumption of innocence" were utterly meaningless when spoken to defendants in shackles, without bail, and fast-tracked without consideration of individual circumstances. They understood correctly that they were presumed guilty because of the fact that they were illegal workers. One of the prisoners interviewed was working with a consular ID from the Guatemalan consulate, not with false US resident papers. As the men were charged, they were bused to different county jails. The last three groups they brought in were females. By then, all or most of the men had already left the compound. These women posed no threat, but they were shackled just the same, even though some of them were under severe emotional distress.
Q: LEP individuals and/or non-LEP do not always understand what is going on in our judicial system. Interpreters encounter these issues all the time. Attorneys also encounter similar problems with their English-speaking clients. What was different about this case?
A: There were 306 defendants, 17 cases per attorney, being fast-tracked from arrest to sentencing in 4 to 10 days. There was little time or privacy for attorneys to meet with clients individually. Normally, defendants are few, they have an opportunity to present their circumstances at least via the probation report or presentence investigation, and they have plenty of time to consult with their attorneys about anything they do not understand. That was far from the case here. Many of these people were illiterate newcomers, who needed much more time and individualized legal counsel than was provided.
Q: What about Canon 6: Restriction of Public Comment - "Interpreters shall not publicly discuss, report, or offer an opinion concerning a matter in which they are or have been engaged, even when that information is not privileged or required by law to be confidential"?
A: Again, canon 6 refers to public comment that may conceivably affect the outcome of an ongoing case. For example, the interpreter has participated in a previous, related case and gives statements to the press, which may find their way back into court and affect the outcome of the ongoing case. That was not the case here: the cases were closed, and I was not involved in any new, related case. Furthermore, canon 6 conflicts with other responsibilities of the interpreter as expert officer of the court, as outlined above, and also conflicts with canon 9: Duty to Report Ethical Violations. Finally, canon 6 does not survive the final disposition of a case. It is a limited restriction, not an absolute prohibition, and therefore cannot be construed as requiring perpetual or indefinite secrecy on the part of the interpreter about every case in which she or he has been engaged. After the case is closed and the interpreter contract ends, canon 6 becomes subordinate to every citizen's first amendment right to free speech.
[See Standards for Performance and Professional Responsibility for Contract Court Interpreters in the Federal Court (http://www.uscourts.gov/interpretprog/interp_prog.html).]
I would of course be happy to answer any other questions from translation or interpreting professionals in writing.
In closing, I want to emphasize that my report offers strictly impartial expert and eye witness evidence of violations of due process, constitutional rights, democratic principles, and human rights, without espousing any social or political agenda, and regardless of the nature or status of the parties involved.
Editor's P.S.: At the 49th Conference of the American Translators Association, held in Orlando, FL November 5-8, Dr. Camayd-Freixas held a session dedicated to the controversy surrounding his report on the Postville raid. Dr. Camayd-Freixas's presentation was followed by a questions-and-answers session and a lively discussion.
P.P.S.: The members of the Inttranet™ (http://www.inttra.net/linguists_of_the_year/, the global network of professional interpreters and translators, have nominated Dr. Erik Camayd-Freixas as their "Linguist of the Year" for 2008. The honorary Inttranet Linguists of the Year Awards recognize the struggle—and sometimes the personal sacrifice—of linguists both alive and dead who have been the focus for media attention during the past year, and have increased public awareness of the importance of linguists and languages as a result.
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