Monday, November 10, 2003
Mistranslation of Miranda Warning Rendered Statements Inadmissible—Ninth Circuit
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit
Court of Appeals has ordered a new trial for an illegal immigrant from
Judge Marsha Berzon said the confession by Jose Alfredo Perez-Lopez, who was deported after his conviction, should have been suppressed because the defendant was misled by an erroneous translation of the standard Miranda warning.
Police in Woodburn, Ore., 35 miles south of Portland, were alerted after a motel employee went in to clean the defendant’s room and noticed a printer, typewriter, blank identification cards, and other items that might have been used to produce false identification documents.
Bill Torres, the Spanish-speaking officer who accompanied investigators to the room, recited the warnings from a Spanish language Miranda card that read, in part, “En caso de que no tenga dinero, Ud. tiene el derecho de solicitar de la corte un abogado.” The officer testified that this would translate into English as “In case you don’t have enough money or funds, you have the right to solicit the Court for an attorney.”
Senior U.S. District Judge Owen Panner of the District of Oregon denied the motion to suppress the statement, saying the translation was substantially accurate. He also denied Perez’s motion to suppress all evidence obtained in the search, finding that Perez consented.
Perez then entered a conditional guilty plea.
Berzon, writing for the appellate panel, acknowledged case law holding that an “imperfect” translation does not negate the effect of a Miranda warning. But the version that was read to Perez, she said, was not merely imperfect, it was substantially misleading.
What Perez was told, in effect, was that if he wanted an attorney, one would not automatically be appointed, but he would have to go to court and ask for one, Berzon explained.
The judge also noted that Perez has only a third-grade education. In the past, she said, the Ninth Circuit has “underscored that thoroughness and clarity are especially important when communicating with uneducated defendants.”
The jurist, citing a 1981 U.S. Supreme Court decision, elaborated:
“In this case Perez-Lopez’s warning was constitutionally infirm because it did not convey to him the government’s obligation to appoint an attorney for indigent accused. To be required to ‘solicit’ the court, in the words of Torres’s warning, implies the possibility of rejection. While ‘Miranda itself indicated that no talismanic incantation was required to satisfy its strictures’... Miranda does not permit such an affirmatively misleading advisory.”
The court also held that on remand, the district judge must reassess the voluntariness of the consent to search.
Panner was correct, Berzon explained, in taking into consideration the facts that the officers told Perez they were seeking evidence of a crime and did not draw their guns. But the district judge erred, she said, in citing the fact that Perez received Miranda warnings.
The relationship of Miranda warnings to the voluntariness of consent to search is tenuous, the judge said, although the presence or absence of such warnings remain a factor to be considered under Ninth Circuit precedent. But no weight should have been given to that factor in Perez’s case, Berzon said, because he gave the purported consent before the Miranda warnings were given.
“When a Miranda warning follows rather than precedes the purported consent, it cannot support the voluntariness of the consent,” the judge wrote.
The opinion was joined by Senior Judges Alfred T. Goodwin and Procter Hug Jr.
The case is United States v. Perez-Lopez, 02-30358.
Copyright 2003, Metropolitan News Company