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Pennsylvania Supreme Court: Cronic’s Presumption of Prejudice Triggered by Counsel Failing to Secure Interpreter for First Day of Trial

by Douglas Ankney

The Supreme Court of Pennsylvania ruled that the defendant was denied the effective assistance of counsel where a Spanish-language interpreter was not secured for the first day of trial and that counsel’s failure to do so triggered the application of the presumption of prejudice articulated by the U.S. Supreme Court in United States v. Cronic, 466 U.S. 648 (1984).

Miguel Diaz was charged with committing several sexual offenses against the daughter of his live-in girlfriend. Attorney John Walfish met Diaz for the first time at the courthouse on the first day of trial. During their first meeting, Diaz asked Walfish to request a Spanish-language interpreter because Diaz had been unable to understand the earlier proceedings at the preliminary hearing. Walfish made the request to the trial court. The judge advised that no interpreter was available, and he did not want to postpone the trial again as the case had already been postponed several times.

Walfish then changed the request, informing the court that Diaz had explained to him that an interpreter would be needed only when Diaz testified. The trial court then allowed the proceedings to begin without an interpreter because Diaz wouldn’t be testifying that day.

The first day of trial included argument on pretrial motions, jury selection, opening statements, and both the direct and cross-examination of the victim. The following day, Walfish told the trial judge that Diaz had been “uncomfortable with his understanding how the proceedings were transpiring,” and the court provided Diaz with an interpreter for the remainder of the proceedings. The jury convicted Diaz of all charges, and his judgment was affirmed on appeal.

Diaz, via counsel, subsequently filed a petition under Pennsylvania’s Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”) alleging 10 claims of ineffective assistance of counsel, including that counsel was ineffective for failing to secure an interpreter on the first day of trial.

The PCRA court heard evidence that Diaz was able to communicate in English with his adult daughters, work supervisor, and others. However, Diaz denied telling Walfish that he needed an interpreter only during his testimony. Further, Spanish/English language interpreter Raymond J. McConnie, testifying as an expert, stated that while Diaz was “conversant in English on matters of everyday life,” Diaz would not have understood the proceedings on the first day of trial without an interpreter due to the stress factors and subject matter of a trial.

The PCRA court found that “there is undoubtedly merit in [the] contention that trial counsel was ineffective for failing to secure an interpreter, if, for no other reason, than trial counsel was unaware of the need for an interpreter until the day of trial.”

The PCRA court found Diaz’s testimony credible, but the testimony of Walfish was “nothing but justification, and for the most part poor justification, lacking credibility.” The PCRA court concluded that Diaz wasn’t entitled to relief based solely on the failure to secure an interpreter, but the failure was “part and parcel of the overarching argument that trial counsel’s multiple failings demonstrate his unacceptable lack of preparedness for trial.” The PCRA court found that Diaz was denied effective assistance of counsel under the standard announced in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Pennsylvania in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

The Commonwealth appealed to the Superior Court, arguing that the PCRA court failed to find that Diaz had suffered prejudice. The Superior Court affirmed, reviewing under the Cronic standard and observing that Diaz’s inability to understand English combined with the absence of an interpreter meant Diaz could not participate in his defense, and he was “constructively absent” from trial which constituted per se prejudice. The Supreme Court of Pennsylvania granted the Commonwealth further review.

The Court observed that the PCRA court’s factual findings and credibility determinations were supported by the record and were, therefore, binding upon the Court. Commonwealth v. Montalvo, 205 A.3d 274 (Pa. 2019). But the PCRA court’s application of Strickland, and not Cronic, was a legal conclusion and not binding on the Court. Id.

Criminal defendants have a right to effective assistance of counsel, and to prevail on a claim that this right was denied, the defendant must ordinarily demonstrate that (1) counsel performed deficiently and (2) the deficient performance prejudiced the defense. Strickland. However, there are limited circumstances where prejudice may be presumed because they undermine confidence that a fair trial occurred. Cronic. These limited circumstances include the actual or constructive denial of counsel at a critical stage of the proceedings. Id. The denial of a defendant’s right to confer with his attorney about his case constitutes the actual or constructive denial of counsel and triggers the application of Cronic’s presumption of prejudice. Id. (citing Geders v. United States, 425 U.S. 80 (1976)). In Moore v. Purkett, 275 F.3d 685 (8th Cir. 2001), a defendant with limited writing abilities was ordered not to speak quietly with his attorney during trial. The court held that this constituted a constructive denial of his right to counsel.

In the instant case, the PCRA court found that in the absence of an interpreter, Diaz couldn’t understand anything that occurred during voir dire, during opening statements, or during most of the testimony of the complaining witness. The finding was supported by the record. This rendered Diaz unable to have communications with his attorney about his case during trial, depriving him of his right to effective assistance of counsel under Cronic.

Accordingly, the Court affirmed the judgment of the Superior Court. See: Commonwealth v. Diaz, 2020 Pa. LEXIS 1708 (2020).

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