The story of one mistranslated word

When I posted and linked to a New York Times op, “Why Mistranslation Matters,” I was thinking about an incident involving a criminal case which caused me a lot of angst.

Coincidentally, the judge in that case — who angered me on a daily basis — had an ego similar to that of T.S. Ellis III, the judge in the Paul Manafort trial: he displayed a remarkably injudicial need to be the star of the show, and openly resented the defense lawyer for whom I worked — who was genuinely a star.

It was nuts. Jealousy, I figured. And how many times did I find myself asking, “How can he do this?” and “Can he do this?” and learning that, well, yes, he could.

Still, this is a story about one mistranslated word.

In 1995, I had been working for Peter Neufeld for a few years, when Peter took on, pro bono, a criminal case against Pedro Gil, a young Dominican man who lived in Washington Heights.

There had been a long-simmering Heights problem between police and young Dominican men. On the day of the incident, the police were towing double and triple parked cars, breaking up a group of young neighborhood men, pushing them around.

A general melee developed. In bringing the street to order, the police had cleared an unusually wide sidewalk, 25 feet wide, in front of the seven-story corner apartment building.

Pedro, 22 years old, hadn’t been involved in the conflict but was a friend of the guys shoved around by the cops. Not a fighter and without any criminal record – he worked long days in his hard-working family’s neighborhood restaurant – Pedro ran up to the roof for a better view.

On the roof he saw a plastic bucket left by repairmen. The bucket was about a quarter full of dried spackling compound. Pedro wanted to show his support for his friends in some way, wanted to make a statement. He picked up the bucket, slightly under 30 pounds in weight, looked over the roof’s edge, saw that the sidewalk had been cleared of people, and threw the bucket over the edge of the roof.

All of that happened in seconds and Pedro had expected the bucket to land on the wide empty sidewalk. I’d have expected the same thing. But I hadn’t yet become fascinated by Galileo whose seminal experiments in physics taught me a little about the laws of trajectory. The bucket arced 35 feet out into the street, where it hit and killed a policeman.

Pedro was horrified. He ran downstairs to his family’s apartment and told a family member what had happened. Then he fled to the Dominican Republic, to his father. His father persuaded him to return to New York and face the consequences. Pedro flew back to New York, was arrested at the airport, confessed without talking to a lawyer, was charged and imprisoned without bail.

Pedro was charged with murder 2, “depraved indifference” homicide, the gravest charge New York State could then bring.

Peter had gathered enough facts to be certain that Pedro had not intended to kill anyone; the correct charge should have been criminally negligent homicide or, at worst, manslaughter. Peter would represent Pedro, who’d confessed to pushing the bucket over the edge, simply because he’d been unreasonably charged and if convicted would thus be unreasonably sentenced.

Peter, a highly intelligent, wonderfully creative lawyer, decided that Pedro, an unusually sympathetic defendant, should testify in the grand jury. It’s always a risky move but Pedro’s unvarying story, his remorse, his character – particularly how obvious it seemed that he had not intended to kill anyone – might convince the jury to convict him not with murder 2 but with second degree manslaughter, the charge Peter thought was just.

You understand that Peter was not fighting for a not-guilty verdict; he was not aiming at “getting him off,” the condemnatory phrase people who know little about defense law fling around, as if they believe defense lawyers are Zeuses who have powers to transform themselves into lascivious bulls or showers of gold, the better to seduce and impregnate juries.

Pedro had confessed and despite language problems with the confession – he’d been interrogated in English, had signed a confession in English – had clearly sent that bucket off the roof. The issue had to do with one thing: what crime had he committed?

Here’s where we get into the subject of language within the process of law, how it can come down to a debate over the meaning of a single word. This drives a lot of people crazy. “It depends what you mean by ‘it.’”? Well, yeah. It does. And Pedro Gil’s grand jury experience explains why.

Pedro, part of one of New York’s many close-knit immigrant communities, was not comfortable speaking English. He testified before the grand jury in Spanish; an interpreter translated.

Although the grand jury procedure permits defense lawyers to attend while their clients testify, it does not permit them to talk, or interrupt the testimony or advise their clients during their testimony. Peter knew a little Spanish. But his co-counsel, Roberto Campos-Marquetti, was bi-lingual. And while Roberto listened to Pedro, he heard the interpreter translate a Spanish word meaning “push,” among other possibilities, into the English word “aim.”

At a break and outside the grand jury room, Roberto told Peter that when Dominicans use that particular word, it means “push.”

You’re saying, “Who cares?”

Here’s why you have to care: although the grand jurors, listening to the flow of testimony, were not necessarily picking up the distinction, they certainly were subliminally picking up an image of Pedro standing on that roof and – not pushing or tossing the bucket – “aiming” the bucket. Not only does “aim” convey harmful intent, it suggests that Pedro had a functional understanding of physics that most of us scientific numbskulls don’t have – and don’t even know we don’t have – to pitch that bucket exactly where it landed.

Peter fought to get some sort of clarification, some relief from that word. He went as far as he could. I have a dim memory of motions filed, of court hearings, of an appeal, but to no avail. “Aim” was the impression the grand jury was left with.

So why do lawyers fight over words? Because law is, simply, language – the meaning of words. In early November 1995, the grand jury indicted Pedro for murder 2.

At various points in New York State’s laws, the difference between “push” and “aim” could have meant the death penalty.

 

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