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Originally Posted by excon

Hello again:

The bottom line is the onus is on the prosecutor. He failed. The defendant was denied his rights. It's not up to the judge to make sure the prosecutor is doing his job.

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And as I said, the prosecutor didn't fail to do his job. The court records prove that. The judge made an arbitrary decision based on "facts" that were untrue.

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I don't know why you've got it in for judges. The fact is, since you (right wingers) passed mandatory sentencing laws, you took all the power out of the judges hands and gave it to the prosecutor. He's the guy that actually runs the show. He has all the power. If some case was dismissed under his watch, you can bet it was his fault.

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Gee, it has nothing to do with judges who make up laws by themselves with no regard for the actual facts. It's all the prosecutors fault.

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I don't know why you don't stick with the old talking points - that this was a technicality. That IS what you think the Constitution is, isn't it - a technicality? You are the people who think Gitmo is a fine idea, are you not?

Excon

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Probably it has something to do with the fact that even the technicality that the judge used to kick the case wasn't even present. That's why I'm not bringing that little facet into it.

And stop creating a strawman agument. We are talking about THIS judge in this case, kicking the charges because of not having a translator, when her own court records show that there was a translator present. This is more than just a case being kicked because of a technicality. This was an arbitrary decision by the judge with no factual or legal basis.

Elliot

The courts don't do things on a whim there are emanations from penumbras to parse through preconceived notions and international laws to consider .

I'm not really sure what international laws come into play on a rape charge in Maryland. :confused: But I generally avoid anything having to do with international law, so there may be.

Regardless, we have a defendant who speaks fluent English, has lived in English-speaking countries for years, and wants an interpreter fluent in Kai?

If I ever commit a crime, I'm going to demand an interpreter who speaks Wagiman. :rolleyes:

Hey Mario3 , como esta? You do not live in the U.S... do you? That's twice now you've demonstrated complete ignorance. Just to clear up your latest mistake: the "First Nation" people are known as, "Native Americans." They have their own designated land, speak the language of their respected tribes for the most part, can type with better English than yourself, and don't have to worry about new immigrants because they set policy in their jurisdiction. Help yourself to an education. You're welcome!


Bobby:)

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Originally Posted by GoldieMae

I'm not really sure what international laws come into play on a rape charge in Maryland. :confused: But I generally avoid anything having to do with international law, so there may be.

Regardless, we have a defendant who speaks fluent English, has lived in English-speaking countries for years, and wants an interpreter fluent in Kai?

If I ever commit a crime, I'm going to demand an interpreter who speaks Wagiman. :rolleyes:

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Amendments to the United States constitution guarantee a criminal defendant the right to be linguistically present in court hearings and to participate in his or her defense.

So your test for determining language proficiency is that, that someone lived in a country and therefore is proficient in its most common language. Never-mind that the Judge who was to try the case did not?

I find it strange that some people are so willing to give-up the rights of others.

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Originally Posted by Dark_crow

I find it strange that some people are so willing to give-up the rights of others.

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What if the defendant gave up the rights himself? What if he waived his right to a speedy trial? That was the case here.

And again, even if his rights have been violated in some way, why does that mean that the charges get dropped? Let the guy sue the state for infringing on his rights, and let him seek restitution from the state in the form of monetary damages. But what does that have to do with the judge dropping the charges against him? The charges are real. He should still be tried for those charges. How does an injustice to the victims of the accused make up for any injustice done to the rights of the accused?

Elliot

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Originally Posted by ETWolverine

What if the defendant gave up the rights himself? What if he waived his right to a speedy trial? That was the case here.

And again, even if his rights have been violated in some way, why does that mean that the charges get dropped? Let the guy sue the state for infringing on his rights, and let him seek restitution from the state in the form of monetary damages. But what does that have to do with the judge dropping the charges against him? The charges are real. He should still be tried for those charges. How does an injustice to the victims of the accused make up for any injustice done to the rights of the accused?

Elliot

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“He later waived his right to a speedy trial -- in Maryland, defendants have a right to be tried within 180 days following an indictment -- because the defense wanted time to conduct its own analysis of DNA evidence. That waiver was effective only until the next trial date, Chernosky argued in court.
“The trial date was extended repeatedly as the state and the defense argued over whether Kanneh needed an interpreter and whether he understood the legal proceedings. The state noted that Kanneh attended high school and community college in Montgomery and spoke to detectives in English. The defense insisted that he needed an interpreter to fully understand the proceedings.”

“Knight said the county spent nearly $1 million on interpreters last year, 10 times the amount it spent in 2000. "It's a constant struggle, and it is extremely expensive," she said.”


Particularly since some reporters said that they had found several in 1 day, I'm inclined to believe there is more to the matter than meets the eye.


Md. Judge Dismisses Sex-Abuse Charges - washingtonpost.com

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Originally Posted by ETWolverine

What if the defendant gave up the rights himself? What if he waived his right to a speedy trial? That was the case here.

And again, even if his rights have been violated in some way, why does that mean that the charges get dropped? Let the guy sue the state for infringing on his rights, and let him seek restitution from the state in the form of monetary damages. But what does that have to do with the judge dropping the charges against him? The charges are real. He should still be tried for those charges. How does an injustice to the victims of the accused make up for any injustice done to the rights of the accused?

Elliot

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“And again, even if his rights have been violated in some way, why does that mean that the charges get dropped?”

I find that comment very disturbing.
:(

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Originally Posted by Dark_crow

Amendments to the United States constitution guarantee a criminal defendant the right to be linguistically present in court hearings and to participate in his or her defense.

So your test for determining language proficiency is that, that someone lived in a country and therefore is proficient in its most common language. Never-mind that the Judge who was to try the case did not?

I find it strange that some people are so willing to give-up the rights of others.

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Dark_crow, it's not my test. I wasn't given an opportunity to have any input on the Supreme Court's interpretation of the Constitution. Oh, and the US Supreme Court has never found a right to an interpreter. Some state courts have, though.

By the way, the US constitution does not state that a defendant has a right to be "linguistically present" as you term it . The right to an interpreter is state-by-state, generally based on case law interpretation of usually state constitutions and/or the 6th Amendment right to counsel in the US Constitution. And it is based on judicial discretion. However there is not one single state that has created the right to an interpreter to a fluent English speaking criminal defendant. The guy never would have thrived in Gaithersburg as the only Vai speaking guy around. He'd be stuck talking to himself! There is no absolute right to an interpreter. Sorry to burst your bubble there.

This defendant is a fluent English speaker, graduate high school in Montgomery County, and was a community college student there. The judge, however, is not proficient in her understanding of the law and showed a demonstrable lack of common sense.

Oh, and her dismissal was based on the right to a speedy trial, not the interpreter, who was sitting in the courtroom at the time of the dismissal, if you read the transcript. He waived his right to a speedy trial, but the court bought the argument that the right is renewed every new court docket. A good bit of the delay was caused by the defense trying to get independent DNA analysis (his right), lengthy hearings on his need for an interpreter, and TWO Vai speaking interpreters not staying on the job - one who quit because she couldn't emotionally handle the severity of the crime and the other because his Vai was not perfect. This was the third Vai interpreter that the prosecutor located, but that's just nit-picking.

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Originally Posted by ETWolverine

This is insanity.

1) The accused rapist speaks English and spoke clearly to the prosecutors and the judge. He lived in an English speaking country for years before coming to the USA.
2) The accused rapist had adequate representation and language assistance in case he missed something in English. An interpreter was made available.
3) The accused rapist waived his right to a speedy trial. Why a judge would use a right that was specifically waived by the defendant as an excuse to dismiss the case is beyond me.
4) Since when does "speedy trial" have an exact time limitation? I was under the impression that "speedy trial" was interpreted as "as soon as reasonably possible".

So now we have immigrants refusing to learn the language, committing crimes, and their attorneys using their lack of understanding of the language as a loophole to get off. How long before this becomes a standard defense tactic of defence attorneys?

THIS is part of the reason that I believe that all immigrants must learn English, and the government should have no requirement to provide language services for immigrants. If the defendant wishes to have an interpreter present, then let him or his defense attorney find and pay for it. It is NOT the job of the prosecutor or the court to do so... or at least it should not be.

And why is the judge making this ruling when it is clear that the defendant speaks English, there was an interpreter available, and the defendant waived his right to a speedy trial? What point is she trying to make? Why is the rights of the defendant MORE IMPORTANT to the judge than to the defendant who waived those rights? The judge seems to be a 'criminal rights" activist. This is nothing less than social engineering through judicial fiat.

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Why do you say that this person's difficulty with English constitutes a refusal to learn it?
Also, why do you assume him guilty? Isn't a person supposed to be considered innocent until proven guilty? As for crimes committed by foreigners who don't know too much English, what is going to stop them from committing these crimes during the time that they are being forced to learn English?


BTW

Bundy spoke English like a college professor.

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Originally Posted by Dark_crow

Particularly since some reporters said that they had found several in 1 day, I'm inclined to believe there is more to the matter than meets the eye.

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Nah... it's exactly what it looks like: a criminal-rights ativist judge who released an accused criminal based on a flimsy excuse based on facts about criminal rights violations that were not in evidence at the time she made her decision.

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Originally Posted by Starman

Why do you say that this person's difficulty with English constitutes a refusal to learn it?

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I never said it was. What I said was that A) he understood the language, B) even if he didn't, why is it the government's/prosecutor's job to provide the interpreter and C) the guy waived his rights to a speedy trial, so there was no violation of his rights taking place.

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Also, why do you assume him guilty? Isn't a person supposed to be considered innocent until proven guilty?

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Absolutely. In a court of law, he enjoys the presumption of innocence. So let's get on with the trial and either prove or disprove his innocence or guilt. But don't drop the charges based on a flimsy excuse.

Also, I am not a member of the court or the jury. I can have any opinion I wish about the guilt or innocence of the accused. Please don't confuse the COURT'S responsibility of a presumption of innocence with a requirement of individuals to make such a presumption.

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As for crimes committed by foreigners who don't know too much English, what is going to stop them from committing these crimes during the time that they are being forced to learn English?

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Absolutely nothing. But when they are brought to trial, the onnus of providing an interpreter should be on THE DEFENDANT, not the prosecution or the government.

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BTW

Bundy spoke English like a college professor.

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Yes, and the court didn't have to spend money on a translator for him, and couldn't use his lack of English language skills as an excuse to drop the charges. Sounds good to me.

I think you have misinterperted my original post. I was not saying that non-English-speakers are more prone to crime. I was making the point that we shouldn't be using their lack of English as a reason to drop the charges against them, nor should the onus of providing them a translator be on the prosecutor. They have the right to understand the charges against them, but if they refuse to get themselves an interpreter, then they have effectively waived that right.

Plus, in this particular case, Starman, the defendant spoke English anyway, there was an interpreter available to him in case he needed it, and he had waived his right to a speedy trial. Ergo, the judges contention that the defendant's rights were violated is absurd. It was just an excuse for a judge to be a criminal rights activist.

Elliot

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Originally Posted by GoldieMae

Dark_crow, it's not my test. I wasn't given an opportunity to have any input on the Supreme Court's interpretation of the Constitution. Oh, and the US Supreme Court has never found a right to an interpreter. Some state courts have, though.

By the way, the US constitution does not state that a defendant has a right to be "linguistically present" as you term it . The right to an interpreter is state-by-state, generally based on case law interpretation of usually state constitutions and/or the 6th Amendment right to counsel in the US Constitution. And it is based on judicial discretion. However there is not one single state that has created the right to an interpreter to a fluent English speaking criminal defendant. The guy never would have thrived in Gaithersburg as the only Vai speaking guy around. He'd be stuck talking to himself! There is no absolute right to an interpreter. Sorry to burst your bubble there.

This defendant is a fluent English speaker, graduate high school in Montgomery County, and was a community college student there. The judge, however, is not proficient in her understanding of the law and showed a demonstrable lack of common sense.

Oh, and her dismissal was based on the right to a speedy trial, not the interpreter, who was sitting in the courtroom at the time of the dismissal, if you read the transcript. He waived his right to a speedy trial, but the court bought the argument that the right is renewed every new court docket. A good bit of the delay was caused by the defense trying to get independent DNA analysis (his right), lengthy hearings on his need for an interpreter, and TWO Vai speaking interpreters not staying on the job - one who quit because she couldn't emotionally handle the severity of the crime and the other because his Vai was not perfect. This was the third Vai interpreter that the prosecutor located, but that's just nit-picking.

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With-out any reference your windy reply is that, just wind.

The United States Supreme Court has never directly addressed the right to an interpreter in criminal or civil cases; it’s never been challenged as a constitutional Right.

Failure to appoint an interpreter has been one the most common grounds for appeals, especially during the 1970’s and early 1980’s.

Have you considered that that may have influenced the Judges decision?


All Rights, including non-English speaking litigants, are in constitutional amendments, particularly the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution.

“Fifth Amendment guarantees that an individual cannot be deprived of life, liberty, or property without due process, fundamental fairness, and equal protection under the law. The Sixth Amendment asserts that a defendant has the right to be meaningfully present at his or her own legal proceeding. Presence implies not only physical presence, but also access to direct knowledge about the proceedings, in order to a) assist in one’s own defense by active participation; b) receive effective assistance of counsel and provide counsel with informed and intelligent input; c) confront the government’s witnesses and cross-examine them; and d) waive these constitutional rights knowingly, intelligently, and voluntarily. The Fourteenth Amendment extends the application of these rights to resident citizens of any and all states. Case law frequently invokes these amendments and attorneys regularly cite them in their appellate briefs.”


Interpreter Issues on Appeal

Again, DC, I don't question the defendant's right to an interpretor. What I question is why it is the GOVERNMENT'S responsibility to provide it, and why if the government has not provided it, it is grounds to drop all charges. If the defendant wishes to have an interpretor present, he can hire one (or his counsel can), and he can pay them himself, and the court cannot prohibit the interpretor from being present.

Elliot

DC, I TOTALLY question this particular defendant's right to an interpreter. He's fluent in English. He's fluent in English. Oh, did I mention he's fluent in English?

And as to the judge, I have questioned what may have influenced her, and can hope that it was not a first year law clerk with only enough knowledge to comb his hair. But alas, that's generally what it boils down to.

And this is a posting site. If I were required to brief this issue to a Court, then yeah, I'd take the three or so days to cite my sources. But here, I will make my statements and move on.:cool:

And I, too read the article you quote verbatim. I live and practice in the area of the country with the big domey buildings, pointy obelisks and Montgomery County judges.

Hello again Goldie:

Big domey building don't make the opinions expressed from inside them any better than anyone else's. As a matter of fact, in my view, that taints them even more.

We've been arguing semantics, and don't have the facts. I don't either. I don't need them. I don't know whether he spoke perfect English or not. I don't care. What I know is that there is a perception that he needs an interpreter. As long as the court acknowledged that that was so, the onus is then on the court (the prosecutor) to make sure that one was available. Yes, the defense should do it, but if the prosecutor can't win without one, then it's up to him to supply one. No?

We're also arguing whether an interpreter was supplied or not. You say yes, I say no. Or rather, I say, I don't know. Again, I don't care.

In the final analysis, I trust that the judge understood the situation, and acted appropriately.

In the final analysis, it's the judge who you come down upon because those are the Republican talking points. It really has nothing to do with justice. If it did, you would understand that in our country, the onus is on the prosecutor. If he doesn't perform, the defendant wins, and that's how it should be.

excon

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Big domey building don't make the opinions expressed from inside them any better than anyone else’s. As a matter of fact, in my view, that taints them even more.

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HEY! :mad: Don't go knockin' us because we're closer to the action than you... Not everyone in the DC metro area is an elephant!

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We've been arguing semantics, and don't have the facts. I don't either. I don't need them. I don't know whether he spoke perfect English or not. I don't care. What I know is that there is a perception that he needs an interpreter. As long as the court acknowledged that that was so, the onus is then on the court (the prosecutor) to make sure that one was available. Yes, the defense should do it, but if the prosecutor can't win without one, then it's up to him to supply one. No?

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For what it's worth, I just saw an interview on my local news with the guy's neighbor. They asked on a scale of 1 to 10, what is his (the defendant's) competency of the English language. The guy said " Seven or eight". Yes, this is a neighbor, maybe he's biased, whatever, but still. It makes me wonder WHY the court decided he needed an interpreter, and we have not been given an answer to that yet.

The news segment I saw also mentioned how it's been discovered the guy's mom tried to coerce the kids into changing their testimony; apparently she "threatened them with voodoo". Yes, voodoo.

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We're also arguing whether an interpreter was supplied or not. You say yes, I say no. Or rather, I say, I don't know. Again, I don't care.

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Maybe you don't care, but there was one provided. It's apparently in the court documents, and my news station interviewed the guy. Not the guy who was the interpreter and quit, but the guy who was the interpreter and then the case was dismissed. Again, maybe you don't care, but he exists. He was there.

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I trust that the judge understood the situation, and acted appropriately.

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You have too much faith in our justice system! :)

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excon agrees: Of the three branches, this one still works - kind of

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I agree it's probably the highest functioning, but you're assuming this particular judge "acted appropriately", yet you admit the system only "kinda" works. Isn't it possible this judge is a complete dumba$$, screwed up and let a child molester loose on the streets? And since the charges were dismissed, he can't be tried again; so that makes it worse. I'll give you that it's possible we aren't hearing the whole story, but based on what is being put out there, it looks like this judge really, really screwed up. I mean, I know you're a liberal and all, but come on, can't you concede this time that MAYBE there was a flaw in the system? :) Maybe?

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Originally Posted by jillianleab

but based on what is being put out there, it looks like this judge really, really screwed up. I mean, I know you're a liberal and all, but come on, can't you concede this time that MAYBE there was a flaw in the system? :) Maybe?

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Hello again, jillian:

I don't know. DC and I were able to find other stuff out there. Given when I've found, it isn't the judge who screwed up. And why do you think a liberal supports a judge over a prosecutor anyway? Because conservatives think prosecutors do no wrong? (Except when they go after rich white Duke students.)

I do concede the flaw in the system. It's built in. That's why we (ideally) have two well armed lawyers with completely opposite views of what the law is, fighting it out in a court of law.

This battle was fought. The prosecutor lost. Why make excuses for him? I certainly don't think there's a bias against prosecutors by judges. Prosecutors win in state court about 80% of the time. They win in federal court about 97% of the time.

Indeed, the bulk of the judges in this country, both federal and state, are chosen from the ranks of prosecutors rather than defense lawyers. If there's a bias, it's against defense lawyers.

excon

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Originally Posted by excon

We've been arguing semantics, and don't have the facts. I don't either. I don't need them. I don't know whether he spoke perfect English or not. I don't care. What I know is that there is a perception that he needs an interpreter. As long as the court acknowledged that that was so, the onus is then on the court (the prosecutor) to make sure that one was available.

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So what you are saying is that perception is more important than fact in the leghal system. Do you really believe that? There was a PERCEPTION that the women of Salem were witches, and were put on trial and eventually burned at the stake. The facts of the case were a bit different than the perception, of course, but since perception trumps fact, hey, tough luck to those women.

Here's another case that might hit a little closer to home for you. There is a PERCEPTION that the government needs to fight a war on drugs. You have supplied some facts, some of which I agree with, that show that the drug war is a waste of time, detrimental to the cause of stopping drug abuse, and overly harsh to the casual user. Do you think that perception should trump facts?

The fact that there was a perception that this guy needed an interpreter doesn't matter... or at least it shouldn't... if the true facts are that he did not. In law, FACT must trump OPINION and PERCEPTION, or else it isn't law, it's arbitrary decision making.

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Yes, the defense should do it, but if the prosecutor can't win without one, then it's up to him to supply one. No?

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No, it's not. If you are agreeing with me that the onus is really on the defense, then it is not on the prosecutor, and the prosecution and the VICTIMS should not be penalized because the defense failed to do its job.

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We're also arguing whether an interpreter was supplied or not. You say yes, I say no. Or rather, I say, I don't know. Again, I don't care.

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So again, you are saying that the FACTS don't matter, only the perception. But I wonder if you would feel the same way if the perception were one that was against the defendant instead of in his favor. If, for instance, an unqualified interpreter were provided, and the perception was that the defendant HAD an interpreter, but in FACT he did not have a qualified interpreter, would PERCEPTION win out in that case?

And you are saying that you don't know the facts of the case. But those facts have been laid out from numerous sources, including interviews with the translator in question. You have the facts, you just don't accept them.

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In the final analysis, I trust that the judge understood the situation, and acted appropriately.

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Why? On what do you bae that trust? Why are you of the opinion that men and women in black robes are infallible... especially when the facts of the case prove otherwise.

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In the final analysis, it's the judge who you come down upon because those are the Republican talking points.

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No, it is the judge I come down upon because she ignored the facts in the case and made an arbitrary decision based on PERCEPTION rather than fact... just as you said.

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It really has nothing to do with justice. If it did, you would understand that in our country, the onus is on the prosecutor. If he doesn't perform, the defendant wins, and that's how it should be.

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The onus is on the prosecutor to lay out the case and prove guilt beyond a reasonable doubt to a jury. It is not the prosecutor's responsibility to provide services that the defendant's counsel is supposed to provide, including interpreters. Nor is it the prosecutor's job to make sure that the judge doesn't make decisions contrary to the facts of the case. That is the judge's job... and eventually the job of the appelate courts.

Elliot