run him a couple whom you fuzzy now into the course looking at me because i'm speaking in a foreign language and obviously if there's not a translator here to tell us what that a language from the south pacific the other make the analogy apt if judge kleinfeld understood what you were saying and corrected your interpretation of it it would be more like what we're talking about here  so i mean the substance of this case is in there's i think three overlapping issues and one is the the obviously the interpreter issue that relates i think because it's a specific foreign language to the years ago a lot of people speak it and all parts of the earth and so it seems like a trial judge has to make some sort of judgment in using interpreters to the trial is somewhat disruptive and delaying trial judge has to make some sort of judgment initially he gave the fellow an interpreter and then after a while after quite a lot of experience with a bang he thought this is funny it's obvious that fang does not need an interpreter he understands english what i'm wondering is what shows that the trial judge's determination was not one to which we have to defer under ok two things i think tells them that you don't refer to that number one i believe this happened this came up right after jury board here is as i understand it from the record so there was some obviously some times the judge was seeing whether or not the interpreter was talking to mr ban or not maybe brought up the issue but there's two points here one when this issue came up one counsel told the judge look have a nice long conversations with mr vang and so obviously you guys are communicating and that counsel responded no judge we're not the problem is we're having these long conversations because mr van cannot form sentences in english and we have we have to have this long drawn out thing to make him understand what's going on and a real problem with that is this if co counsel mr manning are having these long drawn out conversations in the midst of trial just so because they can't communicate how does mr bryant vang present at the trial there because trials don't stop while they're having this conversation witnesses are testifying evidence is coming and a judge is making rulings the other counsels making rulings but he's making that there came a point in time when the state trial judge removed that interview yes and there was an objection yes there was you know my understanding from reading the record is the judge said at that time and least one other time if this problem as the trial goes on i'll revisit the issue i'm not using the exact words right that was the substance of what he said correct well first what he said when we start we have a yes or no good strong is that what happened i believe that that was in the can you guess that leads me to offered we'll look at it later or if you want to pay for it yourself will allow you to have an interpreter but do i also understand correctly that at some points during the trial the defendant va spoke up an attempt to do correct the interpretation being made by an interpreter destruct what do we make of that well i think it was as i understand it he was disagreeing with whatever that or target or thought and i think on you know i read that and i see someone who is now claiming to us that he didn't understand what was going on who was sitting during the trial listening to an interpreter and  but i certainly would want to get on the stand testifying that one because having a lot of experience and translated cases and as we heard from the other case the whole thing is stressful and you have a tendency to revert to your natural language if you're having translate in your head you cannot effectively communicate especially when you're testifying your own defense when there's a lot of rabbit fire cross examination questions now well now it may i say one thing else joe johns it should have been revisited because mr van while he was on the stand asked for a translator may i have a translation may i have it or maybe i have a he didn't get the word right but he asked for it specifically the judge didn't say anything attorney didn't say anything in the prosecutor just went on asking these questions i mean to me it affects so many basic rights in our system for someone to have to go through a trial without understanding completely i mean i don't think fifty percent is enough i don't think twenty five percent i'm not in sure nine percent it's enough especially if you're trying to convince people that you didn't do something and the essence of the case is the against him i mean i don't see how you get around a due process violation aaron and i make the you know i make the analogy to competency and i think this is the exact analogy where we're talking about  unpaid knows cases you have to have the ability to queue you have to be competent enough and whether or not it's mentally or through language to communicate with your counsel not only during trouble before trial otherwise you can't possibly start the interpreter was speaking last among i mean he could ask him what's your problem with the translator why isn't he i mean that seems to me to be a logical question that the judge is going to say i'm removing something that's already been appointed th been determined that you need from this case and we cite a case in the brief that say that that's needed a judge nor counsel's right that's of the fence right to say whether or not he wants to waive the services o and maybe he might have said that well i'd rather have nothing than somebody to speak in a language i'm not that familiar with i mean it's a related language from the same area of the world but it's not the same language so how can you sit through that with and have stuff i don't understand that you're on but here here's to cross that problem he's sitting here on a witness stand looking at twelve people he's trying to speak english is not doing a very well and there are studies to show that people do hold that against you but the problem here is that a lot of his questions or his answers to questions were responses when he was even answers to his own counsel the prosecution used him of having memorized the don't understand exactly i don't know which it was an old sid caesar comedy routine with a lot of double talk and i'm often reminded of that are used to be in practice when people are on responsive well i'm not sure it's double talk i mean well i mean it is in a sense because he's saying english words that sound like english words but they don't have the meaning that needs to be conveyed and that's the whole thing about caesar was that you could he could sit there and make up these words th like german or french or whatever and it was all nonsense and i don't see the difference between us mr bangs up there trying to make english sounding words but they don't have the content that he's trying to convey to the jury and he cannot get a fair trial under our constitutional system without being able to do that i'll keep broady and the judge told him that you can bring inter but they brought in among interpreter he takes a stand and the judge says we're not going to need to get out here now again i mean there's there's there's two problems there either the judge interfered with his right to testify on his own behalf which we don't need still prejudice to get a reversal on or kelso was totally ineffective because he didn't understand that his client needed to do this to testify  there specific instances where the lack of understanding precise understanding of language in your view prejudiced your client there's well i cited one your honor and i haven't gone a credibility case whether or not mr vang is actually trying to hide something from them when in reality it's the the whole basis of it is his lack of understanding  person for the insurance and then another person to cover it up i got it oh help me on something unrelated but i don't want to run out of time that we have the time again under and put into further state court reason it's the last reasoned decision i just want to find it whatever it is well what they said was is that i mean at the highest court in this case in the hideous was is that we've looked at all these issues we find to be without merit and that's basically it deputy attorney general for the warden and the attorney general of the state of nevada you don't have to of worked out that page number while you're listing the document you're looking for is not in it you know are i remind the court that i filed a motion  strike the opening brief and dismissed the appeal based upon more help for you to create a file supplemental excerpts of record we did you aren't whatever i'm supposed to defer to the supplemental excerpts of record that i filed were i think twice as long twice the length of did not include the trial transcript in the supplement well that's because i'm supposed to read the decision of the highest court to make a reasoned decision on it and i'm supposed to defer to that under these various standards and it but that are greatly deferential so you're telling me neither so i gave it to me i don't i don't believe you have it in front of you know there's probably the best thing in your case and i don't have it i think the well the burden me a whole lot more freedom to say he was wrong and if you had given me the state decision that i'm supposed to defer to we didn't i can't say that we made an opinion on our side to keep anything from the court what we attempted to do was to supplement what the court had with the trial transcript and we just handle this this way can you provide is within a reasonable period of time with the state reasoned decision absolutely absolutely i supreme court because keep in mind this is the second time we're going to something about it but i'm sure you will look and find out i'm sorry now that you are more familiar with that i'm sure you will look and you will find out what perceiving my caution is that there may not be a ruling on the issue because the first time we were in front of the ninth circuit prior to that proceeding i had argued that a number of the claims were an exhausted judge pro had said in  was the state court trial judge that made the case and if that is the case just with within a reasonable time that's a good you know argument tell us that but if there is a court of appeals or nevada supreme court decision that addresses the issue that's what my brother absolutely and i absolutely think i point out that in in judge close order just by went to a lot of effort to examine the preliminary hearing in the trial i don't know if you know that but we review what the district judge did they no vang's ability to speak english and i think that the trial transcript vang's responses to answer is both to his own attorney and to the state's attorney in cross examination show a pretty good considerably some grammar translation his ability to speak english but it's english was pretty advanced and we spent a lot of time in our answering and our answer on his ability to speak english judge conan do a lot of a lot of time and effort in that correcting the lao translator because everything in that trial was translated in english for the benefit of the jury and the judge we still believe that one primary  jury selection through lengthy opening statements and through a couple of witnesses the first day when witnesses were testifying and what he said was going out translating you're not doing anything and i'd also point out that the interruption of the trial may have been an issue and i think it simply may have bothered him that there was a translator there who was sitting at table who was doing nothing and he was he was simply taking up space but we do know from the comments of the trial judge what he was not doing as he was not translating and we know that we also know that in addition to removing that that the translator allowed translator he simply didn't tell the guy you're removed what he said was he's willing to revisit this issue anytime there's a problem he was open to demonstrations that bank could not speak english when vang took the stand then demonstrated that he could speak english fluently again  well i would say fluently so there were a couple of issues with verb tenses is english was i think is accent came through but i do not think he had i don't think the trial transcript demonstrates that he had any problem understanding questions let me give you a specific example of something he did not request something he did not understand he didn't understand the term apartment complex somebody used the term apartment complex like the few other examples there might have been five or six examples in a hundred and sixty pages of testimony there might have been five or six examples where he said i don't understand your question but of course native english speakers do the same thing when you get into a convoluted question by an attorney happens all the time when somebody says i don't understand your question when the prosecutor explained that the term apartment complex meant your apartment building then he answered the question counsel referred to the one example when vang said i need something translated it was translated it was explained to him in english let me rephrase it was not translated it was explained to him in english and he went on and he answered the question a review  trial transcript seems to show and i think both that i think the trial judge was aware of this but i think judge poe went through this when he when he filed it when he entered his order in this case every time frank had a question and it was fewer than ten times than one hundred sixty pages those issues were explained to him in english and then moved on and so there didn't seem to be more of a problem that he was having than a native english speaker would have  we don't know whether those were three or four on important times are important lines but that that's all the translator does the rest of the time translators sitting there waiting if there is a problem with understanding what's going on  following on judge persons question what's what's the problem that what's the problem with maintaining the interpreter with keeping the person there is that a matter of economics i don't know that i can say there the concern on the part of the trial judge that maybe the defense is getting on do with damage i don't know i'd be speculating there's a possibility if you have a defendant who speaks english who is from a foreign country and you go through the effort of having translators in the courtroom maybe there's a feeling on the part of the attorney that that's really just window dressing to create sympathy for that defendant that's a and need for attorneys in evidence for hearing i was not but as judge poe found in his order that was filed denying this claim he said that the district court judge did something better than hold never an entry and he had what he called which pro called a real world  the but there was no evidence there was none so there was no opportunity to test in any kind of expert way things comprehension yes that's correct there was not i point out that your decision that cited and the public defender's brief at my ins decision from the ninth circuit overturned somewhat similar situation except in that situation apparently a district court judge dismissed in a trumpeter before the witness had ever and ever testified at all and basically just kept telling that the witness once you try it once you try to testify in english that see how it goes and dismissed him without any track record if you will on the ability of that defendant to speak english fact that there was no translation going on and it was apparent to him watching those proceedings for a day and a half in a pretty pretty complicated proceedings jury selection opening statements and some witness testifying that there was no translating going on what he said was your not doing any translating why are you here so this judge was actually able to follow what the ninth circuit said mine's was to observe the proceedings and also point out that when the  dismissal order came down lead the judge that i've been observing you for a day and a half and i haven't seen any interpret going on lead counsel said that well your honor i can't just spew your observations because i haven't been making the same observation that you have because i've been busy at counsel table listening to the testimony and so even counsel had to concede that the judge had the ability to see things and to observe the courtroom situation in a way that nobody a counsel table did experience such i think we have to assume that this judge and knew what he was doing he knew something about running a lot trial i don't think anybody disputes that and i think you know i think i don't think a decision that a court makes lightly and at this level we're just a little curious i think everybody would concede that the thing did not have a one hundred percent comprehension of english may have been ninety five may have been ninety may have been eighty may have been seventy but what do we know happens in the gap what's missed in the gap right that we just don't know that i think the issue in looking at judge throws order issue here is whether or not that the titian or in this case can show that there was real error and watched the district court did could there have been some some word perhaps a statement a question that might have been clarified to vang it's possibility but if you look at the totality of the circumstances vang's testimony the fact that there was no translating going on no interpreter going on pacifically said on the language issue was something better than an evidentiary hearing happened here and that was the district court's similar to the mayans decision judge pros real world ability to observe the lack of interpretation that was going on i think in the district the state i'm sorry you're right judge crowe reviewing the state trial record and that state trial judge being able to observe those proceedings also point out that it turns out in our view that what the trial judge did was correct in that vein as testimony both to his attorneys a lot of times which allowed him to launch into speeches that may or may not have been relevant to get points across what he wanted but also in response to the prosecutor's cross examination and things got pretty hot at different times during that cross examination period there was never a situation where vang was lost when he wanted a word or a question explained to him and it was explained to him it was explained he understood it he went on there was never a point in the trial proceedings when he was testifying that he got lost and could not follow those proceedings based on what was r d what was happening with his use of language i would suggest to you that he's got an accent at some point he's got some verb tense confusion but not recorded it probably was not recorded you know i did not know i did not thank you very much  and apparently they're still here and that was one of the reasons we didn't bother sending them up again because apparently just pro didn't get him back so he asked the state to produce another set of these for him but as far as i understand those are now here in storage and it is exhibit one hundred four attached to our original opinion on this interpreter issue yes or no you can't do a federal hate b s unless you we don't have an intermediate court of appeals so everything goes up to that and they look at it and they say it's without merit and the under their basic summary order so the highest think court is the state drops out in this instance yes and  order were they when they were shipped up all of our exhibits which were over a hundred and so on that task to our regional petition was shipped up in separately to the first appeal that we came up on the procedural