Say what? South Dakota's unsettling indifference to linguistic minorities in the courtroom.

• Author: McKeown, Cassandra L.

1. INTRODUCTION

   Nobody answered the door on July 26, 2005, when law enforcement officers appeared in response to a 911 hang-up call originating from room 215 of a Sioux Falls, South Dakota motel. (1) The officers retrieved a key from the front desk and returned to the room. (2) The second time they knocked, they were greeted by Isabel Garcia Vallejo (Vallejo). (3) The officers advised Vallejo that they were responding to the 911 call and needed to enter the room to "check on her welfare." (4) Once inside, officers found a glass water bong. (5) The bong field-tested positive for methamphetamine. (6) The officers arrested Vallejo, and she consented to a search of the room. (7) Officers discovered drug paraphernalia, evidence of drug distribution, and luggage containing a man's clothing. (8) An officer retrieved a photocopy of the identification used to rent the room and issued a "be on the lookout" advisory for the missing male suspect and his vehicle. (9) The man was eventually discovered in the bathroom of a local restaurant. (10) He identified himself as Juan Martinez, but law enforcement's already heightened suspicions were further aroused when the suspect was unable to spell his name. (11) Further investigation revealed that the suspect's actual name was Kevin Ballesillo Selalla (Selalla). (12)

   Based on the evidence collected in the hotel search and from Vallejo's interrogation, Selalla was arrested and indicted on charges of possession of a controlled substance with intent to distribute, (13) possession of a controlled substance, (14) and false impersonation with intent to deceive law enforcement. (15) Selalla requested and received the assistance of a court-appointed attorney and proceeded to trial. (16)

   The trial record discloses little about Selalla's English-speaking abilities because it was undisputed at trial that Selalla was not fluent in English and required the assistance of a court interpreter. (17) Thus, the Minnehaha County Court Administration Office hired a Spanish/English interpreter for Selalla's trial. (18) Defense counsel appeared at trial with an additional interpreter who was retained and paid for by the Minnehaha County Public Defender's Office. (19) When the trial court realized there were two interpreters present, it opined that Selalla was the only person present who required an interpreter and proposed to dismiss one of the interpreters. (20) Defense counsel objected and informed the court that it was his practice to retain an interpreter for trials so that the interpreter could facilitate attorney-client communication. (21) An off the record discussion ensued. (22) When the court came back on the record, it dismissed the court's interpreter, stating "the point of paying for two interpreters flies by me." (23) The court made no further record in support of its decision and no record was ever made regarding Selalla's linguistic abilities. (24) The interpreter retained by the Public Defender's office interpreted the proceedings by herself. (25) Addressing counsel's desire to communicate with Selalla during trial, the court stated that it would allow recesses for Selalla and counsel upon request. (26) Defense counsel did not object and did not request any recesses to meet with his client. (27)

   Shortly after trial commenced, the trial court read a set of preliminary instructions to the jury. (28) The court chose not to have the preliminary instructions translated or interpreted for Selalla. Instead, the court stated the instructions could be read to Selalla "later." (29) Defense counsel did not object and the record does not reflect whether those instructions were ever translated or interpreted for Selalla. (30)

   Selalla was convicted on all counts. (31) On appeal, Selalla argued that the trial court abused its discretion by dismissing the court's interpreter and using his defense interpreter as a proceedings interpreter, and committed plain error by not providing a contemporaneous Spanish translation or interpretation of the preliminary jury instructions. (32) Selalla asserted that these actions violated his due process right to a fair trial, his right to counsel, his right to be present at trial and his right to confront witnesses. (33)

   The questions explicitly and implicitly raised by Selalla are of significant importance to the South Dakota Unified Judicial System (UJS). (34) The case makes clear that South Dakota has a dearth of legislation, rules and case law regarding courtroom interpretation. It is past time for South Dakota's UJS and legislature to clearly delineate the rights of and procedures for non-English speakers who come into contact with our state courts. The South Dakota Supreme Court and the South Dakota State Legislature have only scratched the surface of this complex issue, leaving South Dakota as one of only a handful of states that has declined to take proactive measures to protect non-English or limited-English speakers in the justice system. Unfortunately, because the plurality neglected to discuss any of the issues inherent in adequate courtroom interpretation, and did very little to guide judicial discretion, Selalla raised more questions than it answered.

   The practical, legal and constitutional issues surrounding courtroom interpretation cannot be adequately addressed without a clear understanding of the role and function of the courtroom interpreter. The Selalla plurality came to a holding that was untethered by state law and lacked a solid underpinning in communication or linguistic theory because it relied primarily on the federal Court Interpreters Act (35) and its federal court progeny. The court bypassed the opportunity to create an institutional understanding of the complexities of courtroom interpretation. Such an understanding would ensure that the UJS provides equal access to justice and creates a reliable roster of professional and competent court interpreters.

   Referencing the various writings in Selalla, this article will begin with a discussion about the fundamentals of courtroom interpreting. Next, the article will review federal and state law regarding courtroom interpreters and briefly address potential state statutory and constitutional underpinnings for the right to courtroom interpretation in South Dakota. Finally, the article will argue that the UJS and legislature ought to take immediate steps to rectify South Dakota's failure to adequately protect non-English and limited-English speakers in the state courts.

2. THE GROWING NEED FOR COURTROOM INTERPRETER TRAINING IN SOUTH DAKOTA

   Despite the burgeoning national interest in courtroom interpretation, there has been limited public research or discussion of the issue in the South Dakota legal community. (36) Perhaps this is because South Dakota appears to have a relatively low frequency of non-English or limited-English speaking litigants and witnesses.

   A 2006 survey done by the Second and Third Circuit Court Administrators explored the use of courtroom interpreters in eastern South Dakota. (37) In the Second Judicial Circuit, interpreters were used an average of four times per day. (38) There was a fairly sharp drop in usage in less populated areas. (39) For example, Moody County responded that it used courtroom interpreters approximately once per week, and a number of counties responded they had very rarely or never used courtroom interpreters. (40)

   One might be inclined to believe that these numbers indicate that South Dakota has no immediate need for legislation or judicial rules regarding courtroom interpreters. But Minnehaha and Lincoln counties, which together comprise the Second Judicial Circuit, have seen a steady increase in spending on interpreters, with expenditures nearly doubling from 1999 to 2006. (41) The Second Circuit handles nearly thirty percent of all court cases in South Dakota (42) so the circuit's consistently escalating usage of interpreters is significant. Furthermore, court administrators are not alone as they sound the alarm about the state of courtroom language interpretation. The South Dakota Equal Justice Commission's 2006 Final Report and Recommendations found that "South Dakota has become a very linguistically diverse state," that the "need for language interpreters is great" and that the UJS lacks an adequate number of interpreters to provide needed services for defendants, witnesses and victims. (43) The Commission recommended that the South Dakota Supreme Court "explore creating comprehensive guidelines" governing compensation, certification and training of courtroom interpreters. (44) The Commission also recommended that the Supreme Court adopt a policy for having judicial forms and documents translated. (45) Finally, the Commission recommended that the Court adopt policies and programs to "orient and sensitize all court personnel ... with regard to the importance and complexities of communicating with people of diverse linguistic and cultural backgrounds" including techniques for working with court interpreters. (46) Unfortunately, two years after the Commission made its recommendations, the problems persist and the recommended solutions have not been adopted or pursued.

3. THE ROLE OF THE INTERPRETER IN THE CRIMINAL JUSTICE SYSTEM

   The current scholarly discussion regarding the role of a courtroom interpreter is complex and multi-faceted. In order for courts to make informed decisions about courtroom interpretation policy and practice, it is important for them to understand both the practical and the theoretical assumptions among professionals in the interpreting field. This article will therefore look at both the daily operations and duties of a typical courtroom interpreter and the theoretical underpinnings of the interpreting profession. A brief discussion of current prevailing theories of communication and linguistics will shed a brighter light on the intricacies of courtroom interpretation.

   A. THE BASICS OF COURTROOM INTERPRETING

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