The PA Superior Court recently decided the case of Commonwealth v. Diaz, No. 1811 EDA 2016 (March 23, 2018), holding that Diaz was entitled to a new trial because his trial counsel failed to insist that he have a translator present during the entire court proceeding so he could understand the proceedings and assist in his own defense. 

Diaz was accused by his fourteen-year-old step-daughter of sexually abusing her for a period of four years. He was arrested. He retained the services of two lawyers from the same firm who, sadly, failed him miserably for the reasons set forth below. He was ultimately convicted of Rape of a Child, Rape of a Person Less than 13 years of Age, Statutory Sexual Assault, Corruption of Minors, Endangering the Welfare of a Child, and Conspiracy to commit each of those offenses. He was thereafter sentenced to twenty to forty years’ incarceration in a state correctional facility.

During the course of their eight-month representation of Diaz, his lawyers met with him for less than one hour. Additionally, they failed to consult with one another at any point prior to trial and, each assumed that the other would be responsible for critical components of proper trial preparation. Oh … they also failed to assure that Diaz had a Spanish-English translator during the entire court proceeding, even though they were aware that he needed one in order to understand the trial proceedings. Although the trial court provided an interpreter during some portions of the trial, an interpreter was not present during the most significant testimony, that of the complaining witness.

After his conviction and direct appeals, Diaz filed a Post Conviction Relief Act (“PCRA”) Petition, alleging numerous claims of ineffective assistance of counsel. Among the many errors supporting Diaz’s ineffectiveness allegations, he asserted that his trial counsel failed to represent him adequately by failing to secure a Spanish-English interpreter and failing to object to the court’s decision to hear testimony on the first day of trial despite the trial court’s pledge not to do so.

The PCRA court concluded that Diaz “did not understand what was occurring during the pre-trial motion proceedings, jury selection or opening arguments and did not understand about half of the complainant’s testimony.” The PCRA court therefore granted Diaz’s PCRA Petition and ordered a new trial.

The Commonwealth appealed. ¿quien necesita entender lo que está pasando?

On appeal, the Superior Court made it a point to expound upon the degree of “ineffectiveness” in this case. Specifically, it noted the PCRA Court’s description of the lawyers’ representation as “shockingly substandard” and “incompetent” and its conclusion that “only sloth, mismanagement and incompetence” could explain their many failings. The PCRA court also found that trial counsel failed to complete important tasks, such as filing timely discovery motions, obtaining important evidence that could exonerate their client, securing testimony from family members who could establish Diaz’s innocence, and informing Diaz of when his trial was scheduled to occur. The attorneys also missed important court dates, including Diaz’s arraignment hearing. And, when they did show up, they failed to meet basic responsibilities, such as recording testimony or taking notes during the preliminary hearing. The extent of the ineffectiveness led the PCRA Court to conclude that, “In 33 years of practice before the Bar, and 6 years of experience as a Judge, I have never seen a case as rife with ineffective assistance of counsel as this one.”

Accordingly, the Superior Court “extend[ed] the concept of ineffectiveness per se to situations like this one in which counsel fails to ascertain the defendant’s need for a translator and, as a result, incorrectly informs the court about the need for a translator.” The Superior Court thus concluded that this ineffective assistance of counsel, i.e. – by not objecting to the trial court’s proceeding without a translator, resulted in Diaz not comprehending the criminal proceedings. In essence, it rendered Diaz “absent” from trial.

The Confrontation Clause of the Sixth Amendment requires that a defendant be given the opportunity to be physically present at trial; that the defendant be competent to assist in his own defense; and, that the defendant understand the language of the forum. Accordingly the Superior Court concluded that,”if one’s Sixth Amendment rights are to have any meaning, [Diaz] must be granted a new trial.”


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