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People v. Cardenas11/18/2002
tion during the guilty plea proceedings was uncertified as an interpreter, was a witness against Cardenas in another pending district court case, and is employed by the Victim's Assistance Coordinator for the Logan County Sheriff's Office. Undoubtedly, Torres could not be considered a neutral facilitator to aid Cardenas' understanding of his choices and their implications.
I would require the county court to exercise its discretion. The county court could determine whether Cardenas is indigent and whether to provide the services of an additional interpreter, in accordance with the Chief Justice Directive, for the purpose of permitting Cardenas to proceed with the assistance of pro bono counsel in deciding whether to move to withdraw his plea or proceed to sentencing. In the alternative, the county court could determine that Cardenas must apply to the public defender's office for representation if he wants out-of court interpreter assistance at state expense.
Contrary to the county court's assumption, section 21-1-103(3), 6 C.R.S. (2002), providing for the public defender to make a determination of indigency, does not preclude the court's discretion to proceed under the directive. Section 18-1-403, 6 C.R.S. (2002), and case precedent provide for the exercise of court discretion in providing state funded services to indigent defendants.
Section 18-1-403 states that all indigent persons charged with a crime are entitled to legal representation and supporting services at state expense. § 18-1-403, 6 C.R.S. (2002). If legal representation necessarily included all supporting services and no services outside the public defender's office are available, the General Assembly's inclusion of the word "and" is superfluous. When an indigent defendant is represented by the public defender's office, the court still has the authority and responsibility to withhold or grant supporting services. The right to supporting services, such as an expert, at the state's expense is not dependent on representation by the public defender.
In my view, the Majority too narrowly construes a court's authority to provide interpreter services to an indigent client represented by a pro bono counsel. A state must provide an indigent defendant with the basic tools to present an adequate defense. Rojem v. Gibson, 245 F.3d 1130, 1139 (10th Cir. 2001) (citing Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). Communication between the attorney and client is integral for effective assistance. Recently, the court of appeals in People v. Ochoa-Magana, 36 P.3d 141 (Colo. App. 2001), acknowledged that the lack of an interpreter to assist a non-English speaking defendant in attorney-client communication can impair the constitutional right to effective assistance of counsel. Id. at 143. Indeed, effective assistance of counsel is impossible unless the client can provide his or her lawyer with intelligent and informed input. United States v. Mosquera, 816 F. Supp. 168 (E.D.N.Y. 1993).
A three factor test applies to whether a specific service is necessary for an adequate defense including: 1) the effect on the private interest in the accuracy of the trial if the service is not provided, 2) the burden on the government's interest if the service is provided, and 3) the probable value of the additional service and risk of error in the proceeding if the service is not provided. Rojem, 245 F.3d at 1139. The focus of the test is on whether the indigent defendant will be able to present an adequate defense without the service, not whether the defendant has chosen to be represented by the public defender, proceed pro se, or retain private counsel on a pro bono basis.
A court's determination of whether supporti
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