What was expected to be a two-day trial for attempted rape turned into a weeklong debate over rights of Montgomery County immigrants -- and raised even broader questions about the treatment of non-English speaking suspects in a melting pot metropolitan area.
Jose Fernando Lopez, a 20-year-old immigrant from El Salvador who friends say speaks almost no English, was convicted by a circuit court jury last Monday partly on the basis of a detailed "confession" dictated in English to Silver Spring detectives.
Despite the availability of Spanish-speaking interpreters, Lopez was interrogated and read his rights only in English -- and that more than four hours after his arrest.
"The issue is whether he actually agreed to waive his rights [to an attorney], whether he knew he was waiving them, or whether he even knew he had the right," said Paul DeWolfe, one of two public defenders assigned to Lopez.
"That's not the issue," scoffed Assistant State's Attorney John McCarthy, who prosecuted the case. "It's just a red flag. There was plenty of evidence . . . . The jury didn't have any trouble with it."
According to testimony, a fingerprint matching one of Lopez's was found on the victim's second-story balcony, and he was eventually, though not initially, identified by the victim. Nevertheless, some minority advocates say the Lopez case has aroused old fears, especially in the Hispanic community, of police harassment and hasty process.
"It concerns me," said Ileana Herrell, the county's chief of minority affairs. "You'd think after all these years we'd be more sensitive. The courts hire certified translators, but by then it's too late."
In a county with an estimated 30,000 Hispanic immigrants -- plus as many as 10,000 more illegal aliens -- government and law enforcement agencies face increasing numbers of such cases. In 1980, 3 percent of persons arrested in Montgomery County were described as Hispanic; last year 4.5 percent were.
For several years, the Montgomery County Police Department has had printed copies of a Spanish translation of the Miranda warning available in all stations. But Officer Karen McNally, the police department's liaison to the Hispanic community, says the Spanish version should be used only by bilingual officers. "It's a lofty translation," McNally said. "You have to know what you're doing."
There is no specific policy concerning the use of the Spanish version. "If the suspect is obviously acknowledging the conversation, not just nodding," McNally said, "much is left up to the discretion of the officer."
"Why take chances with your case?" said a police officer who has been involved in similar cases.
"I'm sure none of the officers involved thought it was a problem," said a high-ranking police official.
Even more disturbing, said McNally, is that "what we have for Hispanics we're not even offering other minorities." Montgomery County has made no attempt to translate health or legal advisories into any language other than Spanish. Some jurisdictions in the Washington area have done so, obtaining Miranda warnings in as many as five other languages, but none has a ready translation in Japanese, Chinese or Korean -- a language spoken by as many as 60,000 area residents.
In the Montgomery County case, Lopez, who is due in court today for a second rape trial, was accused of trying to rape and rob a Silver Spring woman in her second-floor balcony apartment July 23.
The rape attempt was the fifth attack on older women that had occurred in the Silver Spring neighborhood, and a profile that had been drawn up included the information that the suspect was Hispanic. Lopez has been charged with the five attacks.
Shortly before 2 a.m. on July 23, about an hour after the attempted rape was reported, Lopez was arrested in front of his apartment, which is two blocks from where the crime occurred, by plainclothes officers on special assignment -- none of whom spoke Spanish.
After being taken to the Silver Spring police station, Lopez was turned over to detectives Fred DiMisa and Donald Freitag -- neither of whom speaks Spanish.
Although at least one of the half-dozen Spanish-speaking employes of the station was available, an interpreter was not provided for Lopez until after 9 a.m., when Officer Miguel A. Marquez was called to help obtain scrapings under his fingernails, hair and other samples for a "rape kit."
According to DiMisa's testimony, he and Freitag took custody of Lopez between 3 and 4 a.m. DiMisa testified that he read Lopez his Miranda rights at 6:20 a.m., that he spent three minutes explaining the rights, and that by 7:30 a.m. Lopez had dictated a three-page confession in complete English sentences, using participles, past tenses and prepositions.
"He spoke to you in a narrative form, and you were acting as if you were a secretary or a . . . stenographer and you were taking down what he was saying, verbatim?" DiMisa was asked by DeWolfe.
"As best I could. That's correct," DiMisa answered.
"He used those verbs and those nouns in that order, is that right?" asked DeWolfe.
"That's correct," DiMisa reiterated.
When asked about using Marquez to collect samples for the rape kit, DiMisa said he called on him "because we felt that possibly in trying to describe to the defendant exactly what we wanted . . . it might make it easier to have an interpreter there."
"After he had signed his consent-to-search forms, after he had signed his constitutional rights forms, and after he had signed several pages of statements that you had written, you decided that it was necessary to get a Spanish interpreter there so you could execute a rape kit, is that right?" DeWolfe asked DiMisa.
"That is correct," he answered.
DiMisa testified that he chose not to tape record the interview, and that he had never used one to take a statement. The Montgomery County Police Department's Aug. 15, 1983, directive on interviews says that "the department recognizes that no two cases are exactly alike . . . and therefore the department does not require the use of one specific method of recording statements." Writing down the statement "verbatim" is the first method listed; recording or videotaping the interview is fifth.
"In a perfect world," said Montgomery County Police Chief Bernard Crooke, "we'd videotape every suspect and have beaucoup witnesses. But some suspects clam up with a recorder in the room."
DiMisa testified that he and Freitag believed that Lopez had "absolutely no difficulty in speaking or understanding the English language." Elsa Larenas, a police department clerk who served as interpreter at Lopez's midafternoon appearance before a court commissioner, agreed with the detectives, saying that several times Lopez attempted to respond to the commissioner before she had finished translating the question.
But two dozen character witnesses, English and Spanish-speaking, testified that in his 2 1/2 years in Maryland, Lopez had learned only the barest English -- greetings, pleasantries -- and never spoke English in complete sentences or the past tense.
Ronald Schwartz, a language competency expert from the University of Maryland-Baltimore County, testified that on a scale from one to five, Lopez's proficiency was "1 plus."
"His name, his address, his Social Security number -- those are survival questions," DeWolfe argued to the jury. "Those are the first things an immigrant learns to say." Those were the same questions, Lopez's friends contend, that he was asked by law enforcement officials on July 23, and they were the answers that led them to assume he spoke English.
When translators are needed, government and law enforcement agencies in the Washington area have a fallback, the language bank at Andrews Air Force Base. Courts routinely hire free-lance interpreters from local schools; Montgomery County courts spend $80,000 a year for translators.
But most of the people McNally has to rely on are volunteers. She has been pushing the county's multilingual task force, the four-month-old Language Minorities Coordinating Network, to hire interpreters on a full-time basis. And Lisa Mandel of the county executive's staff says the county will contract for a study on multilingual staff within the next few weeks.
Meanwhile, other police departments in the area are increasing their efforts at the initial arrest stage. The Arlington County Police Department has had Spanish and Vietnamese versions of Miranda warnings at the stations for several years, according to department spokesman Tom Bell, because "we had a problem from time to time with suspects understanding their rights."
In Fairfax County, there are general explanatory brochures in Vietnamese, Korean and Spanish, and a number of Fairfax officers have been assigned to take intensive Spanish courses.
And inside Montgomery County, the autonomous Rockville City Police Department has available five translations for suspects, including four Southeast Asian versions (in both phonetics and ideographs) originally prepared by the San Diego Police Department. Instead of the Spanish Miranda translation prepared by Herrell for the county police, Rockville uses a shorter version written by McNally, one that includes phonetic guides for non-Spanish speaking officers.
In his argument to the jury last week, DeWolfe concluded: "I said during my opening statement that one of the strongest things about our judicial system is trial by a jury of our peers. But it occurred to me today that maybe none of us -- not me, not you, not the judge -- are Jose Lopez's peers. How can we possibly understand what it's like to be in a country where we don't speak the language?"