CZARNECKI & TAYLOR successfully appealed our client’s wrongful convictions in the Michigan Court of Appeals and Supreme Court. The Courts overturned our client’s 4 convictions. Following a jury trial, our client had been convicted of four counts of third-degree criminal sexual conduct, MCL 750.520d(1)(a). The trial court sentenced the Defendant to 5 to 15 years’ imprisonment for each conviction.
The trial court erred when it failed to establish the defendant’s ability to speak English and appoint an interpreter when the parties were aware of the defendant’s difficulty. This error prevented the defendant from being present at his trial and interfered with his ability to assist in his defense, including the cross-examination of witnesses.
The defendant’s trial attorney claimed that the defendant did not want an interpreter. The trial attorney was also concerned that potential jurors would be biased against a non-English speaking defendant. The defense attorney never conducted a jury voir dire to either confirm or refute his assumption. The trial court allowed the case to proceed to trial without the interpreter. The defendant had no idea what occurred at his trial other than the fact that he had been convicted.
Our office appealed the client’s conviction and the trial court granted our motion for a new trial. After a hearing, the trial court agreed that it had made a mistake when the court did not have the defendant personally waive a simultaneous translation and instead relied on defense counsel’s claim that his client wanted to proceed without an interpreter. The Court of Appeals agreed with our arguments by affirming the trial court’s decision to overturn the wrongful convictions and grant a new trial.
On appeal, we argued the following:
(1) defense counsel was ineffective for failing to use an interpreter at trial and for failing to properly investigate the case, and
(2) the trial court violated the client’s constitutional right to due process and be “present” at trial by failing to provide him with an interpreter.
After filing our claim of appeal, we requested that the Court of Appeals remand the case back to the trial court for a Ginther hearing on our assertion of ineffective assistance of trial counsel. We argued that our client’s counsel was ineffective for waiving the client’s right to an interpreter, failing to question the jury on potential prejudice against Spanish speakers, failure to call potential exculpatory witnesses, and failure to inform the client of his right to testify at trial.
After the evidentiary hearing, the trial court granted our motion for a new trial when it overturned the client’s wrongful convictions. The trial court found the following: (1) it had erred by failing to require the defendant personally waive the simultaneous translation of the trial because the defendant did not speak English and, (2) trial counsel could not waive the client’s right to be present at trial.
Wrongful convictions overturned in Court of Appeals
The Michigan Court of Appeals upheld the trial court’s decision to grant a new trial based on the wrongful convictions. Court of Appeals opinion. In a published opinion, meaning it can be used as precedential authority in Michigan, the Court of Appeals ruled in our favor. The Michigan Court of Appeals held that the trial court did err when it failed to provide the defendant an interpreter and a simultaneous translation of the trial. Because our client did not speak English, he was “not present” at his trial. He could not understand anything that had been said against him.
The Court of Appeals held that the trial court failed to comply with MCL 775.19a. This statute requires a court to appoint a certified interpreter when it clearly appears to the judge that a defendant cannot adequately understand the proceedings because of a language or other barrier to effective communication. The Court of Appeals held that at the evidentiary hearing we presented sufficient evidence to show that the trial court knew that the defendant spoke little to no English. Accordingly, the trial court should have appointed an interpreter.
A trial court must appoint an interpreter when it appears from the record that the defendant cannot understand English and the absence of an interpreter would deprive the defendant of a fundamental right to be present at trial. In this case, the trial court, prosecution, and defense counsel were all aware that the defendant was incapable of understanding English at a level necessary to effectively participate in his defense without simultaneous translation. Therefore, because the trial court failed to ask the defendant personally if that is how he wanted to proceed, the client could not exercise a knowing and voluntary waiver of his right to simultaneous translation of the trial.
The lack of simultaneous translation implicated our client’s rights to due process of law guaranteed by the United States and Michigan Constitutions. Specifically, the Court held, that a defendant has a right to be present at a trial against him; a defendant’s lack of understanding of the proceedings against him renders him effectively absent. In addition, the Court held, a lack of simultaneous translation impairs a defendant’s right to confront witnesses against him as guaranteed by the Sixth Amendment. Without any understanding of English, the client could not participate in his own defense.
One of the most important parts of the court’s opinion has to do with the waiver of a person’s fundamental rights. The court held that the trial attorney could not waive the client’s right to be present at trial. This was a mistake as only the defendant can personally waive a fundamental right to be present at his trial. The defendant, who several people testified barely spoke any English, never made a statement agreeing to waive the use of an interpreter. The Court of Appeals held that trial counsel’s statements did not effectively waive the client’s right to be present. Therefore, the client’s due process rights were violated when the proceedings were not simultaneously translated into Spanish.
The Michigan Supreme Court rejected the prosecutor’s appeal. The Court of Appeals published the opinion to provide controlling case law on the issue of the right to be present at trial as it relates to a defendant’s lack of ability to communicate or understand the proceedings against him. The Court also held that a waiver of a fundamental right must be made by the client.
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This case shows that it is critically important to hire the right lawyer to represent you at trial or on appeal. If you, or someone you know has been wrongfully convicted, let CZARNECKI & TAYLOR bring their knowledge, expertise, and dedication to fight for you or someone you care about.
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JAMES E. CZARNECKI II (586) 718-2345
GENEVIEVE L. TAYLOR (586) 350-6044