When a Defendant Gets Lost in Translation

The English expression “like a deer in the headlights” has no real equivalent in Spanish. Instead of its literal translation, “como un ciervo en los faros,” which would be lost on many Spanish speakers, you might instead use the phrasal verb “quedarse pasmado” (“to stay stunned”), which still fails to capture the momentary paralysis that accompanies the subject’s bewilderment. That’s how Fidel Gutierrez-Garcia looked when defense attorney Robert Garcia spoke to him in Spanish about his case, Garcia would later testify: “like a deer in the headlights.”  

Gutierrez-Garcia, a pecan picker from a rural part of the Mexican state of Chihuahua, had been charged in Texas with possession with intent to distribute more than one hundred kilograms of marijuana—a felony, punishable by five to forty years in prison. On November 30, 2021, he and three other men were apprehended by U.S. Border Patrol officers while walking near Van Horn, 120 miles southeast of El Paso, carrying what the officers described as burlap sacks containing the drug. The agents transported the men and their bags to the Van Horn Border Patrol station for processing. 

The next day, two agents responsible for recovering the marijuana interviewed the men. Unable to speak Spanish, the officers called an interpretation company to facilitate their conversation over the phone. Interpreter Christian Saenz later testified, at a motions hearing in March 2022, that he could tell Gutierrez-Garcia was not a native Spanish speaker. The defendant, Saenz said, told him that he spoke a Mayan language. 

Gutierrez-Garcia’s mother tongue turned out to be Northern Tepehuan, spoken by some 10,000 Indigenous residents of northern Mexico. It belongs not to the Mayan family of languages but to the Uto-Aztecan family, which includes more than thirty languages spoken by Indigenous people as far north as Idaho and as far south as Nicaragua. Few linguists in the U.S. have made it their focus. One of them, Stefanie Ramos Bierge, occupies a postdoctoral position at the New York Botanical Garden, documenting ecological terms in the Uto-Aztecan language Wixárika. She described Northern Tepehuan as a fast-paced and melodic language that makes frequent use of palatalizations—when consonant sounds are softened by the tongue meeting the palate, as with the “s” in “measure.” Whereas typical English and Spanish sentences usually follow a subject-verb-object sequence, in Northern Tepehuan the object’s placement is not fixed, and often the speaker will leave out the subject entirely. 

On the witness stand in March 2022, Saenz said Gutierrez-Garcia responded to his questions in Spanish, albeit with short replies, though the interpreter could not glean his level of comprehension. But when he translated Gutierrez-Garcia’s Miranda rights into Spanish, Saenz recalled, Gutierrez-Garcia said he did not understand.

The language barrier became increasingly problematic as the case progressed. The Western District of Texas appointed Robert Garcia—who spoke fluent Spanish—as Gutierrez-Garcia’s counsel. Garcia met with Gutierrez-Garcia at the detention center in Sierra Blanca, 85 miles southeast of El Paso, to discuss his plea. “He said very little,” Garcia testified during the motions hearing. Having withdrawn from the case in March 2022 because of health issues, he now appeared as a witness for the defense. (Garcia died later that month.) “I would talk to him for a while, and he would . . . just sort of nod his head. And then I’d ask him, ‘Do you understand what I am saying?’ He would nod his head.” Garcia continued: “I frankly got the impression right away that . . . he was nodding his head just to be polite more than anything else.”

Given the proximity of the Western District of Texas to the border with Mexico, language interpreters are in high demand. Typically, the court will supply defendants with one—if it can find an interpreter who speaks the defendant’s mother tongue. Luis Navarro, a federally certified Spanish-language interpreter for the Western District of Texas’s Pecos and Alpine divisions, spoke with Gutierrez-Garcia to determine whether he could effectively translate for him in court and found that he could not. “He does speak some Spanish, in the sense of ‘hello,’ ‘goodbye,’ ‘[my] name,’ and that’s it,” Navarro testified at the motions hearing. Navarro informed the court that he was unable to communicate with the client and tried to help locate an interpreter who could. But he was unable to enlist one fluent in Northern Tepehuan who was willing to take the case.

After Garcia withdrew as counsel, he was replaced by Shane O’Neal, a criminal defense attorney based in Alpine, an hour north of Big Bend National Park. O’Neal, who is proficient in Spanish, said he could gather some basic information from Gutierrez-Garcia: he had a wife and child, he lived with his father-in-law, he picked pecans for work. But O’Neal believed that the language barrier would compromise the case. He filed a motion to dismiss it on the grounds that his client did not understand Spanish well enough to comprehend the proceedings against him.

“It’s a bedrock principle of our Constitution,” O’Neal told me, “that people aren’t supposed to sit through this Kafkaesque proceeding, where they are in a courtroom and a lot of things are being said but they don’t understand what’s going on, and they’re not playing a meaningful role in making really important decisions that affect both how their case unfolds and what happens to their liberty.”

Brandon Beck, a law professor at Texas Tech University, who worked for eight years as an appellate attorney at the public defender’s office in the Northern District of Texas, compared the issue of language barriers in court to the way the government protects people who are legally “incompetent” from standing trial. “They can’t participate in their own defense,” he said. 

Though the issues of competence and language proficiency are fundamentally different, the takeaway is the same: a defendant’s comprehension is essential to the due process of law. To demonstrate this point, O’Neal put Gutierrez-Garcia on the stand during the motions hearing. First demonstrating his client’s ability to understand and respond to basic Spanish, O’Neal asked him a series of simple questions—his name, his place of origin. Gutierrez-Garcia answered these in Spanish. When O’Neal then asked him questions about the crime he was accused of committing, Gutie-rrez-Garcia’s responses suggested that he understood his infraction. But as soon as O’Neal began asking questions related to the court proceedings, Gutierrez-Garcia’s comprehension seemed to hit a wall.

“Do you know what a witness is?” O’Neal asked.

“No,” Gutierrez-Garcia said.

“Do you know what a judge is?” O’Neal asked.

“Judge, yes,” Gutierrez-Garcia replied.

“What’s a judge?” O’Neal asked.

“Judge,” Gutierrez-Garcia said.

“Can you tell me who in the room is the judge?” O’Neal asked.

Gutierrez-Garcia replied, “No.”

During a recent press appearance in Eagle Pass, Donald Trump made one of his hallmark incendiary speeches, remarking on migrant traffic crossing the Texas-Mexico border. “We have languages coming into our country,” he said from the town 330 miles northwest of Brownsville. “We have nobody that even speaks those languages. They’re truly foreign languages. Nobody speaks them.” The remark drew plenty of criticism that noted the obvious: “It cannot be the case both that someone speaks a language and that no one speaks that language,” wrote a Washington Post columnist. 

But in the sense that some of the rare languages spoken by migrants are barely spoken in the United States, Trump’s not wrong.“There are people who come here and no one speaks their languages,” said O’Neal. 

For the few interpreters in the U.S. court system who are fluent in rare Indigenous languages, the task is a formidable one. For one, they must contend with the regular challenges of interpretation, making choices about what to prioritize—intonation, logic, sentence structure—within the overall transmission of meaning. They also face unique challenges in working with languages that lack cultural touchstones common to English and Spanish, said Dale Taylor, a Nebraska-based court-appointed interpreter of a Uto-Aztecan language called Tarahumara, spoken by some 70,000 in the state of Chihuahua. “They don’t understand a court system. They don’t understand a judicial system,” Taylor said of the Tarahumara people. “They don’t even have a word for a ‘law.’ ” 

Bierge noted that the same can be said for Northern Tepehuan. “Legal terms are not going to be in the language,” she said. The only interpreter Garcia and Navarro were able to find—a missionary who had interpreted for two previous cases—declined to take on Gutierrez-Garcia’s case, citing the difficulty of explaining legal concepts to Northern Tepehuan speakers.

The work of the interpreter within these Indigenous languages requires creativity and contextualization. Using the example of a “term of probation,” Taylor said of Tarahumara, “there’s no word for ‘probation.’ So you have to say, ‘You’re going to be watched. It’s kind of like you’re going to be watched for five years.’ ”

Emiliana Cruz is a Mexico City–based linguistic anthropologist and an interpreter of Chatino, spoken by about 45,000 people in the state of Oaxaca. She said communicating legalese to clients in U.S. courts can be an arduous process, often requiring lengthy explanations of abstract concepts. “I often find that the judges roll their eyes like, ‘Okay, when are you going to be done talking?’ ” Cruz said. Some judges will assume that her clients’ ignorance of legal matters equates to stupidity. 

Cruz’s two sisters, who’d also worked as interpreters, decided they didn’t want to continue; it was too emotionally taxing. “I do it because I feel that it is the only way someone can understand their rights in their own language,” Cruz said. “I think that is something fundamental for all of us, right?” 

Gutierrez-Garcia’s motion to dismiss the case was denied. U.S. district judge David Counts, of the Western District of Texas, concluded that Gutierrez-Garcia had “a sufficient understanding of the Spanish language to proceed to trial with a Spanish interpreter.” While Counts acknowledged the defendant’s right to an interpreter competent in his primary language, he wrote that the issue ultimately required a balance of the defendant’s rights against the “economical administration of criminal law.” 

Gutierrez-Garcia pleaded not guilty but sought to minimize his penalty by accepting responsibility for the crime in what is called a “stipulated bench trial.” There, the parties agreed that Gutierrez-Garcia had possessed marijuana with the intent to distribute it and that he reserved his right to an appeal, where he could challenge the district court’s finding that he was proficient in Spanish. He was sentenced to 24 months in prison. 

In August 2022, O’Neal filed an appeal with the U.S. Fifth Circuit Court of Appeals, which accounts for a high number of court hearings involving interpreters in the United States, and argued that the district court had abused its discretion. But a three-judge panel of the Fifth Circuit deferred to the district court’s decision. “True, there is evidence in the record that Gutierrez did sometimes struggle to understand legal concepts,” the opinion stated. It then framed Gutierrez-Garcia’s confusion as an issue not of language but of education. “The record indicates that Gutierrez never attended school.” 

The circuit judges concluded that because Gutierrez-Garcia was able to acknowledge having committed the crime, “any deviations from ideal communication” were minor enough that they would not be considered fundamentally unfair. In other words, as long as Gutierrez-Garcia was able to admit responsibility, his lack of comprehension of the proceedings or the arguments being made about his sentencing were considered
unimportant. 

Courts over the years have ruled that the right to an interpreter is necessitated by the Fifth and Sixth Amendments to the U.S. Constitution, which grant certain rights to those accused of crimes, including the right to know the charges and evidence against them. The Court Interpreters Act, enacted by Congress in 1978, turned those court decisions into statute law, stating that a court should use a certified interpreter provided that a defendant “speaks only or primarily a language other than the English language.” 

“If we all agreed he couldn’t speak Spanish, and we all agreed there wasn’t an interpreter there for his particular Indigenous language,” said Beck, “then there is no way to have any of these proceedings without violating the Sixth Amendment and probably the Fifth Amendment . . . and the Court Interpreters Act.” Nevertheless Beck was unsurprised by the ruling. “The Fifth Circuit has evolved over time [into] a court that has a lot of emphasis on law and order,” he said. “The Fifth Circuit today is often unsympathetic to the plight of the criminal defendant.” 

When Trump took office, in 2017, he had the opportunity to fill more than one hundred judicial vacancies, including seventeen across the U.S. Courts of Appeals. Six of the seventeen judges in the Fifth Circuit are Trump appointees. “Anytime one third of the court changes with one president—which should never happen—it’s going to shift the ideological perspective of the court,” Beck said. 

All three of the judges on O’Neal’s appeal were Trump appointees, including Texas judge Don Willett, whom Trump also considered as a potential Supreme Court nominee.

Gutierrez-Garcia’s case was not the first, nor the last, of its kind to appear before the Fifth Circuit. In United States v. Herrera-Quinones (2022), the Western District of Texas court provided a Tepehuan man with an interpreter fluent in his native language before determining that the defendant’s Spanish was sufficient. The defense argued that the Tepehuan
interpreter should not have been dismissed. Its request for reversal by the Fifth Circuit was also denied. 

In 2023 criminal defense attorney Matthew Kozik’s client Jose Manuel Ayala-Alas, a Tepehuan speaker who was provided with a Spanish interpreter, was sentenced to thirteen and a half years in prison for smuggling marijuana across the border, even after an expert testified that Ayala-Alas spoke Spanish at a second-grade level. “You have a federal court turning a blind eye to language issues,” said Kozik, who filed for an appeal and is awaiting a ruling. “This is not just some small-town Hudspeth County state court. This is a federal jurisdiction.” 

As his last resort, O’Neal petitioned the Supreme Court of the United States to hear Gutierrez-Garcia’s case, invoking the Court Interpreters Act, as well as the Fifth and Sixth Amendments. The odds were against him. Fewer than one percent of the cases heard by the high court involve indigent criminal defendants. “These are people who are poor, who can’t afford to pay, who are utterly helpless, who are pitted against the most powerful institution in the world—the United States of America,” Beck said. 

Gutierrez-Garcia served eighteen months in federal prison. His current whereabouts are unknown; O’Neal has been unable to contact him. In January the Supreme Court responded that O’Neal’s petition had been denied. He had expected the result but was disappointed. Still, he takes solace in the fact that it won’t change Gutierrez-Garcia’s fate significantly. By the time of the high court’s action, he had already served his time.  

This article originally appeared in the May 2024 issue of Texas Monthly with the headline “When a Defendant Gets Lost in Translation.” Subscribe today.