Fox News interviewed me for the third time in less than three months. on August 24 on Justice With Jeanine, about having non-English speakers on criminal juries.

I came ready with many ideas, but, as is common for short interviews, the questions to me only covered some of my ideas. Here are the rest of them.

The court case giving rise to this interview segment is New Mexico v. Samora (Aug. 12, 2013), in which a unanimous New Mexico Supreme Court ruled that had Samora properly preserved the issue for appeal — which he did not — he could have won a reversal of his murder conviction due to the judge’s striking a non-English speaking potential juror when an interpreter could reasonably have been made available. Samora goes further by underlining a duty for lawyers and judges to protect non-English-speaking citizens’ state constitutional right to serve on juries.

I believe American society needs to be more tolerant and realistic than expecting people to learn English overnight, and to declare English the national language when expansionism brought American governmental control over huge land areas that had previously been predominantly non-English speaking, including Native American languages in the continental U.S., Hawaii and Alaska; and Spanish in California, the Southwest, Texas, and  Puerto Rico;

– Criminal defendants face too much of a risk to their liberty to be required to have jurors whose grasp of English will be harmful to the criminal defendant’s case. The choice in the matter should be the defendant’s, and not the prosecutor’s. Any rights of the potential juror must be trumped by the rights of criminal defendants.

– Civil litigants eligible for jury trials do not generally face as much risks to liberty and other rights as criminal defendants, so I would be less resistant to giving rights to deaf and non-English speaking potential jurors to serve against the litigants’ wishes.

– If state constitutions give non-English speakers rights to be jurors, then we must look at that against the federal Bill of Rights and the remainder of the particular state’s constitution. 

– Even the best interpreters are a far cry from not needing interpretation.

– Interpreters run the gamut from very capable, attentive and accurate to those who are not. Plenty of courts have tight budgets and are not making sufficient funds available for top-quality interpreters and for interpreters not to overly exhaust their vocal chords and attention. 

– Plenty of people who speak English as a first language may process testimony and other evidence less beneficially for litigants than plenty of non-English speakers aided by excellent interpreters. 

– This issue should not be allowed to feed into the xenophobic hands of the English-Only crowd. 

– Criminal defendants have the right against lily-white juries. Striking non-English speaking non-Caucasian potential jurors can offend Batson v. Kentucky, 476 U.S. 79 (1986). 

– When there will be non-English speaking testifying witnesses among those testifying, one or more litigants may want jurors who understand said foreign language. 

– Judges and jury commissioners must not automatically — without hearing from the litigants — strike non-English speakers from jury pools and a trial’s resulting jury panel. Interests being balanced are those of the litigants, the U.S. citizens with the right and duty to sit as jurors, the public’s interest, and judicial efficiency.

– When there are multiple litigants, not all litigants on the defense or plaintiff’s side will agree whether to strike non-English speaking potential jurors.

– Whether to strike/excuse non-English speaking potential jurors will arise at the jury commissioner’s office or with administrative judges (litigants should be entitled to know about and object in both instances ), when motions for strikes for cause are made, and during peremptory challenges.