Editor's Note: The case of a young woman wrongly accused of murdering her newborn child could have been avoided if laws allowing her an interpreter in her native indigenous Mayan dialect would have been honored. Hilary Abramson, a contributing editor for New America Media, researched language access on a grant from The Fund for Investigative Journalism.
SAN FRANCISCO -- Somebody should ask Attorney General Alberto Gonzales (or whoever takes his job) about Petrona Tomas.
At age 11, the little girl was sold by her father to a man in their native Guatemala. Fearing for her life, three years later she was smuggled out to live with her brother in Lake Worth, Florida, where she was sold out by law enforcement authorities.
Speaking English and Spanish – both incomprehensible to Petrona Tomas -- officers allowed her father to waive her Miranda rights. She was charged as an adult with the first-degree murder of the 2.8-pound premature infant she delivered on the bathroom floor. And they imprisoned her for one-and-a-half years in a jail for adults while she awaited trial.
The only facts that were clear from the start in 2002, until the case was well underway was that Petrona Tomas received neither medical nor legal communication in a language she spoke or understood. And that federal law defines this as discrimination and that the U.S. Department of Justice is supposed to oversee and enforce that law—Title VI of The Civil Rights Act of 1964.
The teenager, who was illiterate and understood little more than a Mayan dialect, was headed for possible life in prison. A month after Petrona’s arrest, a group of women from her remote mountain village wrote a letter to the U.S. government pleading for justice for the child. They had it translated into English and delivered to an American lawyer vacationing in the area. Once home, the tourist passed it to Isabel Framer, a recognized consultant on court interpreting. The following month, Framer filed a discrimination complaint with the Civil Rights Division of the Department of Justice against the Lake Worth police and sheriff’s departments and the Palm Beach [County] Circuit Court.
Ask the attorney general of the United States why it took three years to forge an agreement with Lake Worth police to develop a language plan that should have already been in place. A small city in Palm Beach County, Lake Worth has a large Latino population and enough Mayan languages to be considered a Mayan village. Guaranteeing accurate communication for a population of significant size in a community is the heart of Title VI.
Ask Gonzales why the agreement last month was signed three days before Wan J. Kim, assistant attorney general of his Civil Rights Division, addressed the division’s first national conference on language access. Kim called the agreement an example of “doing the right thing.”
Ask the attorney general why the investigation is described as “ongoing” by his department spokesmen.
Presumably, this is because agreements with the sheriff’s department and court have yet to be reached. In the view of Bruce Adelson, a civil rights attorney who left Justice last year, the Petrona Tomas case was “so egregious,” it should have been taken care of “quickly and firmly, to send a message to law enforcement everywhere.”
The lesson came too late for Lake Worth police, who evicted eight Guatemalan families from their building one night last year, allegedly using a ruse of code violations and giving them 30 minutes to clear out. The Florida Equal Justice Project has filed a discrimination lawsuit in the U.S. District Court of the Southern District of Florida against the city of Lake Worth, claiming selective code enforcement under the Fair Housing Act. A trial is set for next August.
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Petrona, who had run away because the man she lived with in Guatemala beat her, thought Lake Worth police were going to hit her during their interrogation. So when they nodded their heads, she nodded hers. This and other behavior added up to a confession to police. To them, it meant that she had delivered a premature daughter in a breach birth, stuffed a wad of toilet paper down her throat, another wad in her ear, and put her in a plastic bag in the bathroom garbage can. Petrona’s brother’s wife and the wife’s mother had found the teen unconscious in a pool of blood and called 911. They were never deposed for court, and the older woman reportedly returned to Guatemala.
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Ask Alberto Gonzales where civil rights under Title VI rank with the leadership of the Department of Justice. Title VI is perhaps the least known and most powerful section of the Civil Rights Act. A person with limited or no ability to speak or understand English is guaranteed free, “meaningful” access to language assistance wherever medical outlets and law enforcement receive federal funding.
Timely response to complaints with aggressive enforcement are absent in most cases at both Justice and at the Office of Civil Rights of the U.S. Department of Health and Human Services, which investigates medical interpreting issues. Health’s regional office in North Carolina is among the few known for living up to its promise. Only recently, an investigator at the Health Department’s regional office in Dallas reported that new information has been requested in a seven-year, “active investigation” into lack of medical interpreting at the University of New Mexico Hospital in Albuquerque.
“I could care less at this point – seven years later – what the feds do,” says Gail Evans, senior attorney at the New Mexico Center on Law and Poverty. Its attorneys filed the complaint on behalf of a group of non-profits that represent limited-English-proficient patients. “We’ve never had a response from the feds to our calls and letters. We finally moved forward through the courts ourselves, and then the hospital wanted to work it out. We now have a community committee of hospital administration and advocates that meets every week. They’ve been taking huge steps in solving the problem and are doing some really good stuff.”
In this world of policy, “good stuff” requires understanding that interpreting is a profession that demands study and has standards. It involves educating medical and legal professionals how to comply with Title VI, such as using trained interpreters instead of family members who don’t know medical terminology and are too close to the patient. The bulk of Justice and Health civil rights work today involves conducting such workshops. But administrators of top law enforcement and medical facilities should have known what they are expected to do about language access since 2000. That year, then-President Clinton signed an executive order putting Justice in charge of written federal guidelines to spell out Title VI compliance standards.
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It is Mayan custom to prepare a body for burial by putting cloth in orifices. Later—much later—Petrona Tomas communicated that she did not stuff tissue down her newborn’s throat, which the autopsy ruled killed her. Petrona said that she did not even know she was pregnant until she delivered. She said that during the month’s dangerous travel from Guatemala to Lake Worth with a group led by smugglers, she was raped by the “coyote,” chief smuggler, and assumed the baby was his.
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In the lingo of Gonzales’ Civil Rights Division, enforcement is complaint-driven, as in the case of Petrona Tomas, and the statutes demand that investigators seek “voluntary compliance.” The agency has the authority to insert itself into any Title VI investigation, but chooses to avoid stepping on the toes of other agencies, especially the Health Department. In 2003, that department’s civil rights department watered down its Title VI guidelines by changing words like “must”--called for in Justice’s guidance--to “may.” Justice was silent. Because it has authority over Title VI, the Justice Department could have forced the issue and by doing nothing, confused many program leaders around the country about the agencies’ mixed compliance messages.
For nearly the last decade, limited-English-speaking patients at the Maine Medical Center could have used aggressive oversight of Title VI by the Department of Justice. Center administrators signed an agreement in 1991 to provide medical interpreting in two languages and to add more languages as time went by.
In 1997, an activist filed a complaint with the Department of Health under Title VI. For the next nine years, local advocates reported in vain to investigators that the agreement had fallen apart. Last year, the Maine Department of Health and Human Services signed a new agreement pledging to provide trained interpreters to people who receive Medicaid, child welfare and other social services.
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More than 23 million people residing in the United States have little or no English skills. The Joint Commission on Accreditation of Healthcare Organizations, which accredits about 80 percent of U.S. hospitals, spent the past three years studying 60 [unidentified] hospitals across the country through the lens of language access. Considering that half of the hospitals are the most experienced at serving diverse communities, some of the study’s conclusions were a letdown even to the authors. Besides offering mostly telephonic interpreting services that some hospital staff report difficult to use, the majority of the hospitals still rely on bilingual staff as interpreters. They may be adept at colloquial speech, but untrained in the profession of accurate medical interpreting, which can make the difference between life and death.
The Joint Commission released another study within the past month about the differences in negative medical outcomes (from moderate physical harm to death) between English-speaking and limited-English-speaking patients. According to that study conducted over seven months in 2005 in six hospitals, 49 percent of patients with limited English skills had negative experiences. Some involved physical harm. Only 29.5 percent of English-speaking patients had experiences resulting in physical harm. Communication errors were responsible for more than half the negative experiences for patients without English skills. They were tracked at 36 percent of the reasons for English speakers’ bad medical experiences.
In his beltway speech to more than 300 interpreters, advocates and government workers on Title VI issues from across the country, Assistant Attorney General Kim proudly announced the upcoming 50th anniversary of the Civil Rights Division. He invoked the memory of John Doar, the fourth U.S. Assistant Attorney General for civil rights. It was Doar who literally lived with James Meredith in 1962 to ensure his safety as the first African-American student to enroll at the University Mississippi. It was Doar who led the investigation and prosecution of the murder of three civil rights workers in Philadelphia, Mississippi.
It’s too late to rewrite the Johnny-Come-Lately role of DOJ in the case of Petrona Tomas. To earn its anniversary celebration of the legacy of the Civil Rights Division, the Department of Justice must enforce Title VI with the integrity and zeal of John Doar.
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There is a movie in the works on the life of Petrona Tomas. Due to relentless advocacy for Petrona by immigration attorney Aileen Josephs and Sister Rachel Sena, director of the Maya Ministry for the Palm Beach Diocese, local newspapers published stories about Framer’s complaint to Justice.
Only after Lake Worth realized the Department of Justice was involved was Petrona released from jail into the safekeeping of Linda and John Taft, a retired Vermont couple who winter in Palm Springs County. They legally adopted Petrona last year.
Active in Catholic social service work in Lake Worth, the couple spent their careers working with delinquent and dependent children and social policy. John Taft spent five years as director of the Vermont Law Enforcement Training Council. Although they came into Petrona’s life late in her legal struggle, they wonder why it took the Department of Justice three years to take a judicial stick to Lake Worth. John Taft says his biggest regret is recommending that Petrona accept the plea offer to juvenile child endangerment that included probation. He was afraid that Petrona would fail to receive justice in a Lake Worth trial. Petrona’s probation ended on Dec. 14, 2004, with the judge saying that Petrona had done “everything the judicial system can expect of her.”
For the Tafts, the question now is what Petrona failed to get from the justice system.
“I told Petrona when police signed the agreement with the Justice Department that maybe it will make things better for other people in the future,” says Linda Taft. “She doesn’t feel as badly as I do. No one came to my daughter and said, ‘We didn’t give you what you needed.’ I am very disappointed and angry.’”
At 19, Petrona visits the grave of the newborn she named Angela. She graduated in the top third of her high school class and speaks Spanish and English. Besides studying, she works with mothers, infants and toddlers at the Maya Ministry Center. In the summer, the Tafts love to watch her run like a child through the peaceful, Vermont landscape.