By Kevin O’Hanlon, The Associated Press
LINCOLN, Neb. (AP) - As Nebraska’s Hispanic population steadily increases, the state Supreme Court is wrestling with the accuracy of Mirada rights that are translated and read to defendants in Spanish.
The court will hear arguments next Thursday in the case of Victor Hernandez, who was sentenced to life in prison for his part in the 2002 killing of Omaha restaurant manager Mindy Schrieber.
Defense lawyer Christopher Lathrop argues that a form that police use to read Hispanics their Miranda warnings does not adequately translate into Spanish.
The Miranda warning, named for a 1966 U.S. Supreme Court decision, requires police to warn suspects that they have the right to remain silent, to have an attorney present when answering questions and to have a lawyer appointed for them if they cannot afford one.
In Hernandez’s case, police read from a form that uses a conjugation of the Spanish verb “poder” - which means “can” or “to be able” - in regards to a lawyer being appointed.
Lathrop argues that the translation inferred that the court had the option of appointing a lawyer, but was not required to.
“There is a huge constitutional difference between `The court might appoint a lawyer for you’ versus `the court will appoint a lawyer for you,’ ” Lathrop said.
It is not the first time the high court has dealt with the translation issue.
In July, the court ruled in the case of Hernandez’s partner, Luis Fernando-Granados, also known as Luis Vargas, who was convicted of first-degree murder in Schrieber’s death.
Fernando-Granados was advised of his Miranda rights, in Spanish, from a form utilized by the Douglas County Sheriff’s Office.
He indicated in Spanish that he understood the warnings, agreed to speak to the officers and later admitted that he had killed Schrieber.
But Fermin Garcia, a professor of Spanish and literature at the University of Nebraska at Omaha, testified that the warning read to Fernando-Granados cast doubt about whether he was entitled to a court-appointed lawyer.
“It implies that it might not happen,” Garcia testified. “It’s not said clearly that he or she will get one somebody to represent the person.”
In upholding the use of the statement given by Fernando-Granados, the high court cited a U.S. Supreme Court ruling that the warnings only need to “reasonably convey to a suspect his rights as required by Miranda.
“The challenged warning, while not a verbatim Spanish translation of the language used in Miranda, was sufficient to accomplish what the U.S. Supreme Court stated as its purpose, namely, to prevent a misunderstanding that the right to consult a lawyer is conditioned upon having the funds to obtain one,” the court said.
The issue has arisen on other states.
In 1997, police in Fort Wayne, Ind., redid their form explaining Miranda rights to Spanish-speaking suspects after a judge ruled that instructions given to a rape suspect were unclear.
In that case, a translator said that parts of the form “bordered on gibberish.”
Jim Mowbray, of the Nebraska Commission on Public Advocacy, said agencies should work to ensure the Miranda warnings they are using comport with the requirements of law.
“They should make sure there are no ambiguities,” he said.
According to U.S. Census statistics, Hispanics now make up the largest minority population Nebraska.