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Battle Over Preventing Juror Bias Heads To Mass. High Court

By Emma Cueto | December 2, 2018, 8:02 PM EST

The ability of criminal defendants who don't speak English to screen potential jurors for anti-immigrant bias will come before Massachusetts' top appeals court on Thursday, though procedural issues in the case may muddle what advocates see as a chance to bolster protections for those who need an interpreter in court.

The Massachusetts Supreme Judicial Court will hear arguments in the case of Arismendy Espinal, a Spanish-speaking naturalized citizen convicted in 2017 of indecent assault of a minor. Espinal contends that the trial court judge should have included a preliminary screening question, which his lawyer requested, asking potential jurors if they would be biased against Espinal based on the fact that he did not speak fluent English and used an interpreter.

The trial judge denied the request after noting that the victim, a 12-year-old girl, was also Hispanic, and the government has since said the screening issue is no reason to overturn Espinal's conviction. But immigrant advocacy organizations, including three that filed a joint amicus brief on his behalf, contend such Espinal's situation speaks to a legitimate problem.

"We've seen the type of bias that can arise, particularly in criminal cases, against immigrants and against people who don't speak English," said Oren Nimni, an attorney at the Lawyers' Committee for Civil Rights, one of the groups who filed the amicus brief.

Espinal was accused of giving the victim a glass of wine while his girlfriend, the girl's longtime babysitter, was in the bathroom. According to the girl, he then kissed her, and after she pushed away he asked to keep kissing her, which she refused to do.

Her father, who testified at trial using an interpreter, said that she also told him what happened immediately. Espinal has denied the allegations.

On appeal, Espinal argued that it was reasonable to require judges to include a question aimed at detecting bias against non-English speakers as one of the standard, initial questions all jurors must answer, as opposed to individual questioning that attorneys can conduct if they have reason to suspect a particular juror is biased.

Unlike one-on-one questioning, Espinal argued, adding a preliminary question was a relatively simple matter and did not require attorneys to prove there was a substantial risk of bias.

In response, prosecutors have argued that imposing such a requirement on judges would interfere with judicial discretion. Moreover, the district attorney's office has argued, Espinal's attorneys had not provided any evidence to the trial court judge suggesting that bias against immigrants or non-English speakers was a concern for the jury pool and, in fact, one of the witnesses for the prosecution also relied on an interpreter.

"The trial judge properly exercised his broad discretion to ensure a fair and impartial trial by declining to ask a question about possible bias arising from the use of a Spanish-language interpreter, where the question was not required under existing law," the prosecution said in a brief with the court.

The case also involves multiple other procedural questions, such as whether the judge erred while issuing instructions to the jury before deliberations, which will likely also require attention during oral arguments on Thursday.

Nimni said he believed that was part of the reason that the Supreme Judicial Court called for amicus briefs. It tends to do that when confronted with an important point of law or when the case it's hearing might not be the best vehicle to address the larger issue, Nimni said, adding that he thought both might be concerns here.

The criminal procedure questions, he said, might "muddy the waters." However, he added, "I hope that they will also ask questions about how this bias works in the courthouse and whether this is the type of bias that should be addressed by a required question. We obviously think that it should."

He argued that the court had a vested interest in ferreting out bias in jurors before seating them, pointing to the problems that can arise if bias is discovered later, as happened in Peña-Rodriguez v. Colorado, a case in which the U.S. Supreme Court eventually ruled that other jurors could testify about one juror's anti-Mexican statements during deliberations, despite the fact that such testimony is usually not allowed when challenging a verdict.

It would be easier for everyone if such bias were caught early, according to the Lawyers Committee and its allies, which have noted that other states including Delaware and Iowa have also flagged bias against non-English speakers as a potential trouble source that warrants screening.

"The issue has been getting a lot more play because of the current climate," Nimni said, "but also courts have been focusing on it a little be more over the course of the past decade."

Prosecutors and counsel for Espinal did not respond to a request for comment.

--Editing by Brian Baresch.

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