speak or understand the english language it is undisputed that the only way he could have been present at his own trial where his liberty was at stake is if he had access to a spanish and english language interpreter it's also undisputed that he was not provided one because its attorney elected not to have one indeed it's undisputed that his attorney did not even recognize the implication away being an interpreter and that would deprive his clients of underlying and fundamental right it's also undisputed that the trial judge took no action to ascertain whether or not mr garcia recognize that by from going in interpreter he would about what is the appropriate harm analysis she granted the c e o way as your honour's understand on two distinct but intertwined claims and this intertwined nature of the fact somewhat conflated it is our job to separate these two claims and recognize the two distinct duties they arise under and the distinct analyses that are required the st cla arises from the trial court's duty the cryo who're had a duty to ascertain whether or not this crucial waiver had been effected freely knowingly and intelligently n that there was no such an inquiry therefore it should have been an automatic reversal because the harm is structural error i'm curious what you think what is the supreme court say the procedure needs be you're a trial judge you've got a defendant who you're not sure if they can proceed in english if you're right that you need to get a waiver from the defendant himself instead of the lawyer i mean how do you do you do what language do you do that and i'm just confused about what procedure you're saying the supreme court and the constitution requires your honor st it's important to clarify that we're not as the state has contended insisting that there was a particular procedure that had to be followed and that's where the violation comes from but this is considered such a no brainer the both texas state law and federal statutory law  procedure because it's giving people who do not speak the language an interpreter is now considered a non issue and so it's a chance you didn't state and state in federal issue but how do you determine if they if they meet at an interpreter and i understand they get an interpreter if they meet on your honor here at least the faxes guesses very early on it was clear there were representations on the record that mr garcia did not speak a word of english and an interpreter had been provided for him in some pretrial proceedings including during the motion to suppress his confession i guess more specifically really my question is do you so i understand you think there's reason to believe here that  really might need an interpreter so if you need to get the waiver but the attorney the defense attorney saying no we don't need an interpreter it's ok it's ok and your position is well you need to get that from the client do you ask the client in  english or in his native language whether he wants an attorney your honor certainly if he's going to understand the question he would need to be interrogated through an interpreter and in this particular instance that would have   so just to get the waiver you're saying a court would need to find an interpreter who speaks the defendant's native language to get that waiver yes your honor and we have to separate these two inquiries if the court has no knowledge that the defendant does not understand english that would be a separate issue and probably create problems in terms of the right to raise it for the st time on appeal but if and there are cases on this including one from st circuit it's about the application of the federal statute but it does make clear this is not an attorney's right to weigh it's personal to the client and so once the the trial court becomes aware there is a language barrier it is up to the court to employ whatever means necessary to be able to communicate directly with that defendant in a language he can understand and ascertain is this a really knowingly intelligently affected waiver and that might involve a modicum of delay of say the language that the defendant speaks is something highly unusual and not represented by people in that particular area but we're talking about the fundamental right to be present in trial this right is so fundamental it's presupposed by the six the men the th amendment does not mention the right to be present just like it does not mention the right to self representation but the supreme court going back to the one thousand nine hundred century has been very clear about the right to be present as being one of the most fundamental rights protected by the six the men and when you have one of these fundamental rights of this aerated without there being the most basic inquiry you know why are you do you understand that you have a right to confront the witnesses against you you understand you have a right to participate in your defense these questions about what you would need to do and would not be able to do if you didn't understand the language being spoken in court i mean it wouldn't be you know i agree his situation seems like it would come up a fair amount were a nation of immigrants after all by the director on behalf of the state of texas there is no in specific the supreme court case on the issue of the interpreter and again i would argue because it's presupposed in this day and age for over a one hundred years that you need himself has to worry yes your honor there's one from this circuit u s versus tapia this court again it was interpreted in the statute but it makes clear this is a personal right that the client possesses follow and it would be fundamentally unfair is the language as court you suggest is analogous to you know you don't have in the constitution a right to an interpreter and you don't have supreme court cases on that specific fact patterns just like you don't have in the constitution that the states that are provided somebody with a wheelchair if they are in jail and he can't walk and they need to get over the courthouse i mean it would be such a self evident proposition if you can't physically walk into the courtroom some means needs to be provided to enable you to be present we don't have the right to have the hearing enhanced meant in the constitution we don't have that in a supreme court case but the c c a the court that denied mr garcia believe in the same year held that it would be a denial of presence at the proceeding to not allow a hearing impaired individual to have interpretation in the courtroom in the c c s or your wheelchair example i mean when if a court someone has a disability physical disability and the court asked the lawyer or does your client need a wheelchair or some other d assistance and the lawyer no he's you said he's going to be ok he's going to be ok if you can walk into the courtroom d on his own would that be unconstitutional except the lawyers were for your honor i think the more apt analogy would be if the the judge said i notice your client isn't here today is there an issue and a lawyer said yeah i thought the wheelchair would be distracting to the jury so he's not going to be here today and the judge said fine moved along that would be the same thing that happened here you need to ask the defendant does he not want to be there because being president is so fundamental you cannot exercise those other enumerated rights in the th amendment if you don't have a wheelchair and so this is an instance where the lawyer is the fiction that the lawyer is the same as the client breaks down and this is something that the court discussed the supreme court discussed recently in macaulay versus louisiana there are certain instances and there are fundamental about the right to still be your own person with autonomy rights when it is your life at stake even if you're making stupid choices it is your right the lawyer does not get to insist on your innocence the waiver of the right to counsel you need some kind of elocution know what form that takes we're not saying there is a specific formula and this court failed to follow some checklist there isn't a checklist because again this is such an anomaly that this person wasn't deprived of the interpreter without somebody checking there's nothing on the record about any conversation with mr garcia about this and we're talking about a mexican national or no your honor because the lawyer himself it made it that he never told mr garcia the programming interpreter an interpreter meant for going your right to be present in the courtroom to confront witnesses to participate in an there's no way mr garcia could have intuited that he comes from a different country a different tradition you've never been to trial before so the lawyer saying i don't want it you can have an interpreter but i don't recommend it because it's going to distract and there is conflicting evidence about whether the lawyers said it would distract the jury which makes no sense because there was an interpreter there for the spanish language witness as interpreted for the jury and also  well it is not a freely knowingly intelligently affected waiver and that is what clearly established constitutional law requires not just that you give something up people give things up all the time the question is do you let go of these fundamental rights with the appropriate knowledge and freedom and i would say he had neither knowledge nor freedom he wasn't free to make this choice because the lawyer conditioned it on something that sounded really bad oh if i have this interpreter my lawyer is going to be distracted that's what mr garcia said and in other testimony the lawyer claimed he thought the jury might be distracted and the prosecutor testified that the lawyer said i don't really want my client to know what's going on now a lawyer can say i find it distracting to have my client in the courtroom because i'd rather just concentrate on the witnesses well that the lawyer didn't get to make that decision part of representing someone in a criminal procedure you take on the responsibility that you were there on behalf of the person and they still have rights to participate in the proceeding so this was a waiver in the sense that it was something given up but it was not a freely given waiver nor was it knowing because he didn't know what those underlying rights were before he said to his attorney ok whatever you want and this again is undisputed there is nothing in the records and no one has attested there they're being in on record or off record allocution of any time where you could probe why are you doing this mr garcia your attorneys that you don't want one but why do you understand then you won't know what's going on you won't be able to confront the witnesses and your other i found it extremely helpful in terms of the that the prejudiced situation to look at weaver versus massachusetts two thousand and seventeen  case not because this is the war room final time but he means a great tutorial on the distinction between structural error and error that arises from a trial process requiring personal waiver by a defendant on the record is not clearly established by any supreme court hold and to recognize such a right on collateral is impermissible as that would be a new rule of constitutional to make certain things clear on the record to affirm that the defendant x understands exactly what's going on when he pleads guilty and waves multiple constitutional rights the un and trial but there is no such procedure or no such general require an event that has been established for waiver of the right to an interpreter is the project i take it given the way you started the jury or at least agreeing with miss sweeney's factual premise that only the attorney waived the the translator was right i mean the trial court found that mr i think that mr garcia himself did in this off the record hearing the texas court of criminal appeal says garcia affectively made an expressway were what's what's your view of the facts do you agree with her that only the attorney waived or do you think or or is there back saying r c m so who are understand there's a different issue about whether garcia agreed behind the scenes with his attorney but i'm saying what happened in the courtroom right so i think i agree with to the extent that the record shows that it was mr garcia's attorney who informed the court no judge we don't want an interpreter and there is no no contradictory evidence to just so undermined that i'd i would say though that i think in court mr garcia did confer with his attorney you said you have a right to an interpreter but i would recommend that we don't yet juan you know for several reasons that appear in the record distract sciri distract me he was specifically certain that mr garcia might ask questions of the interpreter so so i think there's no question that's correct i think that's the that's how i interpret that statement and it's consistent with the record and that's why the court of criminal appeals decision here was was it reasonable  that says the record must show or there must be an allegation and evidence which must be shipped and it was the right to counsel there but but i think applying the  reasonable to conclude that mr garcia through his attorney affected a valid waiver within a clearly established law i think the the district court i think made a mistake here and i i understand that mr garcia's argument is d that no look it has to be that the defendant himself who says to the court i don't want this i wa this right i think if we look at the cases on guilty pleas i think they undermine that argument suppose the supreme court's been very clear in oregon versus alabama for example that you know it you'll  held that the defendant's lawyer can represent to the court that the defendant understands the right he's giving up by pleading guilty and wishes to waive his right to stand trial and so as long as that representation is made and not objective to the client or a guilty plea that is still a valid waiver and so i think that should remove any doubt that the attorney is ment i don't think we most of that here at most mr garcia in a stablish will people who disagree whether this is a valid way for the director to be clear thinks it absolutely is a government law but i think there is a right to be present is clearly established in your c is arguing that this is just incumbent within the right to be present if you don't understand what's being said you're not really present so how do you respond to that yes i think that's fair and i think my response to that is that it really doesn't change the analysis any because there is no there just as there is no clearly establish law that requires a personal statement by the defendant on the record to waive a right to an interpreter the same goes for the right to confront witnesses and the right to be president trial and so trial can't a lawyer waive that is there a law on that question i am not aware of any supreme court case that says the lawyer cannot do that what i am aware of is that we cite this in our brief but this goes to the to an interpreter arises out of the white's patient presence it can be waived there is no specific procedure or specific you know person who must effect that waiver and even if in this case mr garcia could establish that his right the been violated he would still have to show that the does denial of that right prejudiced and he can't make that showing here because he hasn't really tried it he basically realized what speculation something might have jogged my memory and i might have remembered something but he doesn't identify what that something might be or how it is reasonable you would have you know expected to lead to a different result of trial and so i just to close the loop on on the interpreter or waiver claim as i understand mr garcia argument i think it his his concern is that if you don't require a statement by the defendant on the record then the problem is that the defendant doesn't really understand what he's giving up but again i think that runs into the same problem there is no clearly established law that says you must express a comprehensive or a piece compton legal understanding what i understand  that well he knew he had a right to an interpreter he didn't understand what that what it meant that's not what the supreme court has required i'm aware of no cases and that if the titian or doesn't cite any a defendant must understand the constitutional basis of the white but good example of that i think is the miranda or the miranda warning says among other things you have the right to remain silent it doesn't say the th amendment prohibition on involuntary self incrimination provides you with the right not to make an open or a state so here there's no question mr garcia understood the right you have the right to an interpreter he admits that it's the bible that his lawyer told him and i don't think we can we can't presume that he didn't know what that whited tale you know is with that right entails it means that nobody's going to translate language test and so i think he he very well understood what he was giving and he can't show harm even if you could show a violation because as i mentioned he doesn't really identify anything but also it's worth it's worth recognizing here that writable testimony on the contested issue of his state of mind was largely through spanish if the court could reach the merits however the claim would say even to no review because he or mr garcia cannot overcome the strong presumption that his counsel provided prostitution will be adequate representation it's very it's clear on the record that mr garcia's lawyer has some concerns about how having an interpreter would affect the trial now mr garcia is free to disagree with those concerns interpreter present he was translating for mr garcia and mr messiest this lawyer had no problem with that so that supports his his understanding that having but an interpreter with the jury would create some issues that he thought would affect his ability to effectively represent mr garcia and so that is well within the role of trial strategy he thought he would do a better job  and we can't forget the fact that he is bilingual and so he was at least able you know if if there were inconsistent testimony or you know one of the english speaking witnesses for the state deviated from a pretrial statement or he can catch that and he can relay that to mr garcia secondly even if he could establish constitutional deficient or clear that with out particular client consent you can waive rights that amount to tactical decisions and in that case it was whether or not to proceed with more dire in front of a as opposed to an article three judge and the court made clear that is the kind of thing a lawyer can make it and you thought they know the magistrate judge they know the district court judge they can make a strategic decision about what might be the better for you when you're talking about a fundamental personal right to do it on a me in your criminal trial that is not something that can ever be some bla mated to the lawyers will also it is very difficult to accept the c c s finding that there was a an adequate raver this is where the district court was correct in saying this was an unreasonable fact finding an expresswa as judge clement was referring to that there was an admission on the record that yes the attorney told me he didn't want this so i said whatever you want that is an expressway over but it is not a constitutionally valid waiver and the fact that the implicating th amendment rights and due process rights so to cite case law without applying it without making any inquiry about whether this was a freeway or a knowing and intelligent way her is not to comply with clearly established federal law the other and the reason why the director won just shift the discussion to strickland even though i would maintain this is clearly deficient performance just because you think something is distracting does not make it a strategic decision as the magistrate judge said  findings and a recommendation to the district court but the treaty part is the prejudice inquiry and that is a more nuanced inquiry but we don't ever get to an effective assistance which was preserved it was raising the motion for a new trial as was the fundamental trial court failure of ascertaining whether or not there was a free knowing intelligent way or so the st claim that a arising from the trial courts duty with me look who we versus massachusetts i started to say there's this great tutorial about what's the difference between structural error and run of the mill trial process errors and justice kennedy explained that there are three broad rationales for finding structural error one is when you have a right that is really separate from the right to be free from conviction such as the right to represent yourself which actually can make it easier for you to convict or there's also the right to choose the right the choice of counsel which is always versus lopez that's also a structural error you get because it's displayed a said it's just too hard to go back and reconstruct the alternative reality that would show prejudice and finally there's structural error when it the proceeding fundamentally unfair and that's giving as an example i would represent to this court that all three of those broad well the rationales for finding structural error are implicated in this case you have an intrusion upon the th amendment tanami right you have a situation where going back and trying to articulate that alternative route of reality had mr garcia known what was going on is almost impossible to do and it's just fundamentally unfair the idea of someone sitting through a murder trial not knowing eighty percent of what's going on choosing from the state's chief witness is about the nature of versus massachusetts which says the inquiry has to be case specific strickland versus washington itself talks about the need for a flexible inquiry based on the nature of the allegation now the eighty d p a as interpreted by the supreme court in williams versus taylor does not require that you point to a supreme court case with the exact same facts you can take a general principle and say it was unreasonable to apply to the facts of that specific case and that's what we have here you all right thank you for your words but oh so when you are court appointed and the this panel as well as that court as a whole is always very gracious of the work that you do and others who take on these cases to provide breathing in oil argument on behalf of your client so we thank you for your service in this case the briefing i'm hearing oral argument and the other services