Dallas County exoneration shows changes needed to deal fairly with the deaf, lawyers say

Dallas County exoneration shows changes needed to deal fairly with the
deaf, lawyers say

October 2, 2010

By JENNIFER EMILY / The Dallas Morning News
[email protected]

There’s no doubt Stephen Matthew Brodie’s deafness contributed to his
wrongful conviction nearly two decades ago for the sexual assault of a
5-year-old Richardson girl.

He was finally exonerated this week – becoming the nation’s first deaf
exoneree – after a judge heard about a plethora of missteps by Richardson
police and declared him innocent.

But in many ways not much has changed among police and prosecutors since
Brodie was falsely convicted. The Dallas County district attorney’s office,
which asked a judge to release Brodie, still has no policy to deal with deaf
defendants but acknowledged Friday that Brodie’s case has made authorities
realize they need one.

And not all police departments follow what are considered best practices
while interrogating deaf defendants.

For example, prosecutors don’t routinely check whether a deaf defendant had
a certified interpreter during police questioning, or whether the
defendant’s written words would have a different meaning in American Sign

Defense attorneys Amber D.F. Elliott and Tim Menchu, who both know ASL, say
many of the problems in Brodie’s case would not have happened with a hearing
suspect. And, as egregious as those problems were, they say the situation
could easily happen again.

“There are still problems,” said Elliott, an Austin defense attorney who
worked with Brodie’s attorneys to review the 18 hours of interrogation he
went through over eight days.

Evidence at Brodie’s exoneration hearing this week showed that sign language
interpreters were not always present during the interrogation.

And when Richardson police asked Brodie in writing why he abducted and
sexually assaulted the girl, he wrote, “I don’t know WHY?” Those words were
taken as a confession until the district attorney’s office began
reinvestigating the case.

Lost in translation

But Elliott said that in ASL the question is often repeated back in the
answer to questions that ask who, what, where, why, when or how. She said
Brodie was saying he didn’t know “why” police kept asking him questions.

Menchu, who defends many deaf Dallas County defendants, and Elliot both said
police should not have relied on written questions because English is a
second language to someone who uses ASL.

“The hearing public generally thinks a deaf person speaks English. But it is
American Sign Language, which is a different language,” said Menchu, who
learned to sign because his sister is deaf. “Even if you understand what is
literally said, you may not understand the idea behind it.”

Terri Moore, first assistant to Dallas County District Attorney Craig
Watkins, acknowledged Friday that her office needs to adopt a standard to
deal with the deaf. The number of deaf defendants is small, but Moore said
that doesn’t mean the criminal justice system shouldn’t be prepared.

“This whole case was a learning experience,” said Moore, who worked on
reinvestigating the Brodie case but has never prosecuted or defended a deaf
defendant. “I think this was an eye-opening case, and there’s going to be a
lot of conversation about best practices.”

Moore said the district attorney’s office plans to reach out to Elliott to
determine a procedure for dealing with the deaf.

Elliott and Menchu said the Dallas police policy of using an officer as an
interpreter is not the best practice. They said police should use a
certified interpreter who is trained to sign legal words like those that
come up in Miranda warnings when officers ask suspects to waive their
rights. Elliott said the ideas of waiving your rights to remain silent and
to have an attorney don’t automatically translate in deaf culture.

“I find that hugely problematic,” Elliott said of the Dallas police policy.
“Knowing basic signing and finger spelling is not the same as getting a
certified interpreter who knows how to interpret legal words.”

Craig Miller, deputy chief over the Dallas police crimes against persons
unit, said the department uses officers who sign just as it would use an
officer who speaks French or Laotian to interpret. Miller, who has been with
the department nearly 29 years, said he has never personally worked on a
case with a deaf suspect.

“A lot of what we do happens after 5 p.m.,” Miller said, saying time is
often of the essence. “To find a certified, official deaf interpreter at 2
in the morning would be difficult.”

But after he was told that using a police officer who signs isn’t considered
the best practice, Miller said he would talk with the district attorney’s
office about the policy.

In Irving, the Police Department spokesman, Officer John Argumaniz, said
investigators use certified ASL interpreters once someone becomes a suspect
because they don’t want a possible confession thrown out of court.

Richardson police, whose investigation led to Brodie’s conviction, did not
respond to inquiries about whether their policies have changed since his
interrogation. The department has not admitted conducting any part of the
case improperly, despite state District Judge Lena Levario’s ruling Monday
that mistakes were made.

‘Clown’ voice vs. ‘low’ voice
For 20 years, authorities have said that the 5-year-old victim told them her
attacker spoke with a “clown” voice. Police and prosecutors have said the
girl was describing how a deaf person speaks. But a recording of the
interview shows the girl actually told police the man had a “low voice.”

In addition to communication problems, after Brodie’s plea, Richardson
police matched a fingerprint found on a window to someone who had pleaded
guilty to a similar crime and is suspected of being a serial rapist. But
Richardson police maintained that Brodie was guilty, according to testimony
at Brodie’s exoneration hearing.

When another Richardson case led to an exoneration in 2008, partly because
of faulty eyewitness testimony, the department quickly changed how it
conducts photo lineups. But the police chief who made those changes has
since retired.

Brodie became a suspect in the 1990 sex case after he lost his hearing aid
at a Richardson pool while stealing quarters from a drink machine. Police
asking him about the theft also asked him about the child’s abduction and
sexual assault. He eventually pleaded guilty to the crime in 1993 and was
sentenced to five years in prison.

Brodie, 39, said this week that his reason for falsely admitting guilt back
then was simple.

“I just got tired,” Brodie signed through an interpreter. “It was too much



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