For the Defense - Vol. 5, Issue 2 - 42

I remember the first time I looked at MD's file.
It was the thickest one, and on the top was a
letter from my predecessor to MD telling him the
case was not very good. I put the file to the side
to wait for pdf versions of the transcripts (I only
work with OCR'd pdf versions of transcripts. They
are word searchable, easily indexed, and can be
carried in my laptop and iPad or accessed from
the cloud whenever I have time or inclination to
work on them) and went after the thinner ones.
A month or two later I picked up the file again.
I cannot remember everything I did in those few
minutes, but I know that one of the first things
was to read the transcript. Starting on line 3 of
the first page, the following jolted me out of the
usual torpor I slide into reading these things:

representation that one was needed. A judge has
a right to be annoyed at a last-minute request
from a lawyer who was retained eight months
earlier, but that annoyance should not, and never
did, result in the proceedings going forward
without a defendant understanding them.
The trial itself was unremarkable except for
the prejudicial and unchallenged hearsay that
was admitted. MD was charged with raping his
paramour's 14-year-old daughter several times
over the preceding four years. The victim's
mother faced identical charges for forcing her
daughter to submit by hitting her or forcing her
to drink before the rapes occurred. Every witness
who had heard the victim's story was permitted

THE COURT: I am just told there is now a request for an interpreter; is that correct?
DEFENSE COUNSEL: That is correct, Your Honor.
THE COURT: Do you speak Spanish?
DEFENSE COUNSEL: I do not, Your Honor.
THE COURT: Have you been speaking with your client?
DEFENSE COUNSEL: I met Mr. Diaz this morning. I've been designated as trial counsel.
My partner, Mr. Noonan, has been speaking to Mr. Diaz, but Mr. Diaz informed me this
morning that he would request an interpreter, as he is not totally comfortable in the English
language. English is a second language to him, sir.
At first, I was excited- I had a winner! Trial
counsel did not meet with Defendant until the
first day of trial and made no arrangements for
an interpreter because he did not know his client
needed one. I then looked to the dockets to see
what this dereliction had cost MD-a twenty
to forty-year sentence. I returned to review the
first day of trial. The judge (long since retired)
convinced counsel to proceed through pre-trial
motions (the Commonwealth's-he had filed
none), jury selection, and opening arguments
without an interpreter. Trial counsel, falsely it
was later proved, told the court that MD agreed.
The judge promised no testimony would be
heard until an interpreter appeared, yet, without
objection the first day of trial ended with the
uninterpreted English language testimony of
the victim. Had trial counsel insisted on an
interpreter, trial would not have proceeded, with
no unpleasant result but the trial judge's anger
at trial counsel's late request. The trial judge's
actions surprised me. I have practiced in Bucks
County over forty years and cannot recall a single
instance where a judge refused, or questioned,
the request for an interpreter upon counsel's
42

For The Defense l Vol. 5, Issue 2

to relate her tale without defense objection and
repeated it when cross-examined. Conversely,
about forty instances of crucial favorable hearsay
were not admitted. Immediately before the
first trial listing, the victim told authorities she
would not testify against her mother, and all
charges were unconditionally dropped. At the
trial though, the daughter related statements
her mother made in furtherance of the alleged
conspiracy to rape her. The discovery contained
over forty statements-some on recorded
telephone conversations-from the mother
denying that any of the rapes occurred. The
jury never learned of them. Other evidence
that might have helped MD's total, unqualified
denial of guilt was lost. MD was the only defense
witness, testifying without any preparation. MD
was convicted on the second day of the two-day
trial.
Sentencing occurred three months later.
Neither of the two retained attorneys secured an
interpreter for the pre-sentence investigation,
which consequently contained misstatements that
enraged the sentencing judge. Neither attorney

For the Defense - Vol. 5, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 2