For the Defense - Vol. 5, Issue 2 - 43

met with MD between verdict and sentencing,
nor did they gather evidence for mitigation. MD
received twenty to forty years.
After sentencing, counsel all but abandoned
MD, leaving him with an appeal with all issues
waived. Subsequent counsel, who were court
appointed to continue with the direct appeal,
did not know how to reinstate issues; but, even if
they had, there was little they could do given the
dearth of objections during the trial. Affirmance
inevitably ensued.
Sometime thereafter, MD filed his PCRA
petition with the aid of other inmates and, as
described above, it came to my hands. I filed an
amended petition raising the language issue
and the failure to properly perfect the appeal.
Given PCRA rules of the road, reinstatement of
the right to file post-sentence motions and a
direct appeal-which the Commonwealth did not
oppose-was the logical, though not necessarily
obvious, choice. Ineffective assistance could not
be raised on direct appeal, and I had no adverse
rulings to raise on appeal. Still, I believed that
if I could develop an issue, direct appeal was
the preferred route because, unlike the usual
ineffective assistance claim, I would not bear the
burden of showing that the error affected the
outcome of the trial. I also believed that the trial
judge's failure to secure an interpreter was an
issue that would allow me the rare post-sentence
opportunity to develop a record regarding the
conduct of a trial.3 The time spent pursuing that
appeal was not totally wasted, but in hindsight
would have been better spent advancing the
ineffectiveness claims.
In 2007, the Judiciary Code was amended
to include statutes requiring interpreters for
litigants and witnesses not fluent in English.
Though in effect at the time of MD's trial,
the regulations implementing procedures for
enforcing the law had yet to be enacted. My
job was to convince the Supreme Court, where
we were surely headed, that the statute, even
without the implementing regulations, required
that (1) a judge alerted to a criminal defendant's
language barrier must inquire into the need for
an interpreter, and (2) here, this inquiry would
have led to the trial's delay until one was found.
Until I won the reinstatement of post-sentence
rights, I gave no thought as to how to do that.
I had one hundred and fifty days (the time in

which post-verdict motions must be decided) to get
the job done.
MD had limited English fluency. The Commonwealth had several hours of phone calls of him with
his family-and one with his attorney who was too
careless to ensure he spoke on an unrecorded line.
Many, including the one with his attorney, were in
heavily accented English. When he spoke Spanish,
the dialog was quick and easy. When in English, it
was slower, deliberate, and the vocabulary limited.
The conversation with the attorney was the most
telling-the attorney's vocabulary, phrasing and
cadence were similar to those I use when trying to
explain the working of juvenile court to a youngster
facing criminal charges. I could not find any caselaw
about experts who testified about a litigant's English
comprehension. I called all the attorneys I knew who
were fluent in Spanish, and one of them, Ubel Velez,
well known in the criminal defense community,
recommended Raymond McConnie to me.
Everyone who represented indigent defendants
in federal court in the greater Philadelphia area
twenty years ago knows Ray McConnie. A Puerto
Rican native who came to court and prison
impeccably dressed and crowned with a fedora, he
was always my first choice, as clients always seemed
to better and more quickly understand what I
was saying to them when he was the interpreter.
I did not know, until I engaged him, how much
science, and music, is involved in interpreting. Ray
learned his trade after obtaining undergraduate
degrees in chemistry and biology in Madrid. Back
in the United States, while doing graduate work
in philosophy of language-psycholinguistics and
sociolinguistics, i.e. the meaning of words, syntax,
semantics, pragmatics, and how all of that enters
into the human experience as individuals who need
to communicate-one of his professors referred him
to the United Nations to train as an interpreter. The
training took several years. He eventually became
an interpreter certified in the federal courts.
Ray did not just transform words-he, and other
certified court interpreters, are not automatons
who only translate word for word. Instead, they
quickly gauge the fluency of the defendant and
adjust their "register." As Ray eventually testified,
"Register has to do with ... pragmatics. It's that
part of linguistics that basically is concerned with
bridging the explanatory gap between the meaning
of the sentence and the meaning of the speaker, so
pragmatics is about use, and register is just one of
those elements that we have to be cognizant of."
Vol. 5, Issue 2 l For The Defense

For the Defense - Vol. 5, Issue 2

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