TO: Friends

FR: Jim Boulet, Jr., Executive Director, English First (703) 321-8818

DT: October 31, 2005

Democrats are already unfolding their arguments: hostile to immigrants (based on a dispute over bilingual jurors), against civil rights and liberties and hostile to reproductive rights (emphasis added).

-- "Why Bush Picked Alito," Time, October 31, 2005 (online edition) http://www.time.com/time/nation/article/0,8599,1124426,00.html

People For the American Way's report of Judge Alito's record (The Record of Samuel Alito: A Preliminary Review, October 31, 2005, page 9) includes the following description of his opinion in Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994):

The federal district court ... found that the striking of [five] Spanish-speaking jurors represented an unconstitutional exclusion of jurors based on race or national origin. ... On appeal, in an opinion written by Alito, the Third Circuit reversed the decision of the district court. ... Alito also found persuasive the prosecution's stated concerns about juror' ability to consider only the court-sanctioned translations in coming to their decision in the case.

Contrary to PFAW's suspicion about "troubling issues about how Alito would treat language minority jurors," Alito was merely following the Supreme Court's own precedent in Hernandez v. New York (89-7645), 500 U.S. 352 (1991).

In Hernandez, the Supreme Court found that preemptory challenges that removed Spanish speakers from a jury pool were not necessarily forbidden discrimination. Quoting from Hernandez:

After petitioner raised his Batson objection, the prosecutor did not wait for a ruling on whether petitioner had established a prima facie case of racial discrimination. Instead, the prosecutor volunteered his reasons for striking the jurors in question. He explained:

"Your honor, my reason for rejecting the - - these two jurors - - I'm not certain as to whether they're Hispanics. I didn't notice how many Hispanics had been called to the panel, but my reason for rejecting these two is I feel very uncertain that they would be able to listen and follow the interpreter."

After an interruption by defense counsel, the prosecutor continued:

"We talked to them for a long time; the Court talked to them, I talked to them. I believe that in their heart they will try to follow it, but I felt there was a great deal of uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, especially where there were going to be Spanish-speaking witnesses, and I didn't feel, when I asked them whether or not they could accept the interpreter's translation of it, I didn't feel that they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter, and I feel that in a case where the interpreter will be for the main witnesses, they would have an undue impact upon the jury."

The trial court, moreover, could rely on the fact that only three challenged jurors can with confidence be identified as Latinos, and that the prosecutor had a verifiable and legitimate explanation for two of those challenges.

[A] policy of striking all who speak a given language, without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination. But that case is not before us.

Are Bilingual Jurors a Potential Problem? The Ninth Circuit Agreed

Alito's opinion was matched the following year by the Ninth Circuit Court of Appeals, hardly a den of hard-right jurisprudence, in U.S. v. Fuentes-Montijo 68 F. 3rd 352 (Ninth Cir.1995). Quoting from the decision:

When, as here, a district court is faced with a jury that includes one or more bilingual jurors and the taped conversations are in a language other than English, restrictions on the jurors who are conversant with the foreign tongue is not only appropriate, it [sic] may in fact be essential. ... The rules of evidence and the expert testimony would prove of little use if a self-styled expert in the deliberations were free to give his or her opinion on this crucial issue, unknown to the parties.

The Hernandez opinion contains an illustrative footnote on the potential problem of argumentative bilingual jurors:

Respondent cites United States v. Perez, 658 F. 2d 654 (CA9 1981), which illustrates the sort of problems that may arise where a juror fails to accept the official translation of foreign-language testimony. In Perez, the following interchange occurred:

"DOROTHY KIM: I understand the word La Vado [sic] -- I thought it meant "restroom." She translates it as "bar."

"MS. IANZITI: In the first place, the jurors are not to listen to the Spanish but to the English. I am a certified court interpreter.

"DOROTHY KIM: You're an idiot."