US v. Bailon-Santana

No. 04-50079 (12-6-05). This presents an interesting issue as to whether an attorney's representation that he translated a jury waiver form for his Spanish-speaking, non-English speaking, client obviates the need for an in-court waiver colloquy. The 9th (Kozinski) opine that such an in-court waiver is necessary, and that the defendant's conviction on a drug conspiracy charge was vacated and remanded. The 9th discusses the requirement that a court interpreter be certified, and what that means for fluency. Given the high standards Congress insisted on, and due process requirements, a certified court interpreter. Here, there was no translation of the jury waiver form,. and there was no colloquy in court as to a knowing and voluntary waiver. A colloquy is required apparently when the waiver is not read by a certified interpreter and discussed with counsel. This case is supported by Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997), which requires a colloquy although it didn't discuss what would happen if someone else translated it. The 9th took pains to stress that the lawyer stated he translated it, but there is no assurance as to the lawyer's fluency nor whether the defendant actually understood it. This opinion, going to jury waiver, may be applicable in other contexts, and counsel should be attentive. Rawlison dissented, arguing that the lawyer avowed he was fluent, and that the defendant, on the day of trial (two weeks later) confirmed that he waived the right to jury. There was no surprise or confusion. To the dissenter, the waiver was knowingly and voluntary under these circumstances.