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The Court of Appeals considered Tuesday whether a Montgomery County judge was right to dismiss child sex abuse charges against an immigrant when the circuit court had trouble finding an interpreter.
Circuit Court Judge Katherine D. Savage drew furious criticism last July when she dismissed charges against Mahamu F. Kanneh, finding a violation of his right to a speedy trial. Almost three years passed between Kanneh’s arrest and the dismissal, with much of the delay due to the court having trouble finding someone who could speak and translate the proceedings in Kanneh’s native language, a Liberian dialect called Vai.
Hearing the state’s appeal of the dismissal, retired Judge Dale R. Cathell seemed frustrated with the idea of waiting indefinitely for a translator, but also with the idea of an alleged criminal going free.
“What happens when it’s impossible, period, to find an interpreter for some vague dialect in the middle of the Amazon jungle?” Cathell said. “What happens, the case stays in limbo until someone else emigrates from that part of Brazil?”
“If you happen to be from that particular tribe in the middle of the Amazon jungle you commit a crime and you can never be tried for it because they can’t get an interpreter for you?” said Cathell, who was on the bench by special assignment until his successor is named.
Kanneh, who was accused of repeatedly sexually assaulting a 7- year-old girl, has been ordered to be deported to Liberia, but that country has not yet agreed to take him back, Assistant Attorney General Kathryn Grill Graeff said. He is in the custody of U.S. Immigration and Customs Enforcement.
Applying Barker
Graeff argued that Savage misapplied the Supreme Court’s test for determining whether a defendant’s Sixth Amendment right to a speedy trial has been violated. That test, established in 1972’s Barker v. Wingo, requires a judge to consider the length of the delay, the reason for the delay, whether the defendant asserted his right to a speedy trial and any prejudice to the defendant.
Graeff argued that the reasons for the delay, including the interpreter issue and the need to obtain DNA testing, should not count against the state. First of all, she argued, it is the court’s responsibility, not the prosecutor’s, to find an interpreter. Secondly, everyone involved in the case made serious efforts to find someone who could translate, she said.
“I’d point out that as hard as it is to find a Vai interpreter and all the extensive effort, this isn’t an issue where, a case where there’s three years without an interpreter,” Graeff said.
The first Vai interpreter found the subject matter of the case disturbing and ran out of the courtroom; she also was unable to do simultaneous interpretation. The second interpreter had just undergone surgery, was in pain and did not know if she could sit through the trial. A third interpreter was present when Savage dismissed the charges.
Many of the appellate judges seemed skeptical that Kanneh really needed an interpreter in the first place, given that he has lived in the United States for years and attended high school here. Graeff, however, said that Kanneh’s attorney argued at the circuit court level that Kanneh could understand basic English but did not know enough to help with his own defense; the prosecutor wanted to protect Kanneh’s rights and so made every attempt to accommodate his request, Graeff said.
Though Savage stated when she granted Kanneh’s motion to dismiss the charges that the efforts to get an interpreter had been “Herculean,” Assistant Public Defender Amy E. Brennan disagreed.
“I would suggest to the court that what we have in terms of the court’s efforts, the timing of the efforts, the record does not support that there was a diligent pursuit of a translator or an interpreter from the get-go…” Brennan said.
The court knew from Kanneh’s first appearance with counsel that he needed an interpreter but did not take all the steps it should have to find one, she said.
Finding prejudice
Judge Joseph F. Murphy Jr. suggested that Kanneh’s lawyer could have proceeded without an interpreter.
“There’s one way to deal with it,” Murphy said. “Defense counsel could have said, ‘I object; we want to be tried. I object to the fact that he’s being tried without an interpreter and if he gets convicted I’m going to raise this issue with the appellate court and seek a new trial on his behalf. But we really want this case tried so we’re going to go forward.’”
“I can’t imagine wanting to go forward that desperately when your client doesn’t understand a thing that’s going on,” Brennan argued.
Graeff said there was also a delay caused by the state’s decision to consolidate Kanneh’s case with that of his father, accused of abusing the same child, and a second delay caused by the court severing the cases again. But, she said, those delays were only a matter of weeks.
Also, Kanneh waived his right to a trial within 180 days early in the case, only reasserting his right to a speedy trial a few months before the case was dismissed, Graeff pointed out. She also said Kanneh’s defense lawyer did not argue any actual prejudice to Kanneh’s defense because of the delay, just that Kanneh suffered anxiety and had to move out of his home because he was no longer allowed to be around children.
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