HOUSTON, Texas–Judge Elsa Alcala issued a condemning rebuke to her fellow jurists this week for summarily disregarding the constitutional right of non-English defendants to have a translator in a criminal trial. The affable and scholarly jurist rebuked the majority in a dissent saying that “despite the great strides that Texas’s criminal-justice system has made in ensuring that all people will have fair trials, for every two steps forward there is one step back. The Court’s holding in this case represents that step back and affects not only the Hispanic population in Texas, but all Texans who expect that their State’s courts will consistently abide by the requirements of the United States Constitution.” The other jurists opined that Garcia had waived his right to a translator.
The judge rebuked the court for failing to address the only question that the defendant appealed to the court. Specifically, whether the court of appeals failed to correctly analyze whether Garcia made an intelligent, knowing, and voluntary waiver of his rights to confrontation, equal protection, and due process under the Constitution to knowingly present and hear in the Spanish language from a qualified interpreter. Garcia’s legal counsel told the trial court judge that his client waived his right to an interpreter.
The defendant, Irving Magana Garcia, was convicted in Hidalgo County of murder. He was sentenced to 20 years in prison for shooting a man almost 12 times at a shopping mall in McAllen, Texas. Garcia appealed to the highest criminal court in Texas, the Texas Court of Criminal Appeals. He lost on appeal at the Texas Court of Criminal Appeals, and he lost when he asked the Court to reconsider its decision.
Both decisions had 6 judges voting in the majority to affirm the conviction, and there were 3 dissenting jurists.
Garcia’s lawyer had declined an interpreter at trial. The court reporter was not taking notes when the lawyer told the judge that his client was waiving the right to a translator. Judge Alcala opined that if the judge had asked Garcia about his decision about an interpreter, he would have found that the decision was coerced by his lawyer. The lawyer claimed that a translator would be a distraction that would hinder his ability to give proper legal representation.
Garcia’s lawyers argued in the motion for rehearing that “it is undisputed that nobody (not the trial judge, not the prosecutors, not the interpreter, and not defense counsel) ever informed Appellant he had both federal and state constitutional rights which he would have to expressly waive.” They also argued that the record “certainly does not demonstrate that such waiver was a voluntary, knowing and intelligent waiver.”
Judge Alcala’s dissent on Garcia’s rehearing was joined by two fellow jurists on the court, Judge Cathy Cochran and Judge Cheryl Johnson. They noted that non-English speakers and those with a poor grasp of English, comprise approximately 2 million people in this state, about 9 percent of the population. Justice Alcala opined that if you make the assumption that the same proportion of non-English speakers will appear as criminal defendants, then tens of thousands of defendants who have limited or no English language skills are entirely dependent on courts to provide them translators.
Although the majority ruled against Garcia, it summarily opined that a litigant “is never deemed to have [waived his rights] unless he says so plainly, freely, intelligently, sometimes in writing and always on the record.” The dissent wrote that “‘the judge has an independent duty to ensure that the proceedings are interpreted for the defendant, absent the defendant’s knowing and intelligent waiver.'” Judge Alcala opined that the trial court judge did not determine whether the decision to waive a translator was made knowingly and voluntarily.
David Newell, a prosecutor from Harris County told Breitbart Texas that “[w]hile Judge Alcala agreed with the bulk of the majority’s legal analysis, she felt they reached the wrong result because the defendant was forced to choose between no interpreter and a distracted defense attorney. To Judge Alcala that was no choice at all.”
Newell is the Republican nominee for a position at the Texas Court of Criminal Appeals. Board certified in criminal law, Newell also noted that earlier in the term the Court held that the failure to request an interpreter amounted to ineffective assistance of counsel suggesting that the case would have gone differently had that been the issue. On appeal, Garcia did not argue that his trial counsel rendered ineffective assistance of counsel when defending him.
Judge Elsa Alcala was appointed by Republican Governor Perry to become the first Hispanic woman to serve as a judge on the Texas Court of Criminal Appeals. She is Board Certified in criminal law. She was a prosecutor in Harris County before she was appointed to a criminal trial court bench. Governor Perry appointed her to the First Court of Appeals, and later to the highest criminal court.
Lana Shadwick is from Harris County and served Harris County as a prosecutor and a family court associate judge.
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