Jack Fairbanks v. Henry E. Cowan, Superintendent, Kentucky State Penitentiary
551 F.2d 97
6th Cir.
1977
Check Treatment

*1 FAIRBANKS, Petitioner-Appellant, Jack COWAN, Superintendent,

Henry E. Penitentiary,

Kentucky State

Respondent-Appellee.

No. 76-1154. Appeals, Court of

United States Circuit.

Sixth

Argued Dec. 1976. March 1977.

Decided

Rehearing Rehearing En Banc April

Denied 1977. II, Aprile,

J. Vincent Asst. Public Defend- er, Frankfort, Ky., petitioner-appellant. for Hancock, Atty. W. Gen. of Ken- Edward Frankfort, Larson, Ky., tucky, Raymond respondent-appellee. PECK, WEICK, EDWARDS and

Before Judges. Circuit WEICK, Judge. Circuit to this appealed Court Fairbanks has denying District from an order of the corpus. a writ of habeas application had been convicted He County, Ken- of McCracken Circuit Court sodomy (Ky.Rev. tucky of the offense 436.050) with Charles Crittendon. § Stat. imprison- to two He was sentenced by counsel from ment. He was defended appealed office. He the Public Defenders Kentucky (now Appeals of to the Court of Court), his conviction was Supreme Per Curiam in a Memorandum affirmed opinion. *2 Fondaught get the men to out the sodomy, told recipient or victim

The got out first and Crittendon, friendly year wagon. Fairbanks was a station Charles mentality pulled six- his the Fairbanks who had second. adult Charles old had in- he out of the station up got contracted after child. Charles clothes year-old he was six old. officer what he was paralysis wagon. when He asked the fantile with; throat and paralyzed charge his him the officer re- going disease had to severely his impaired speech, sodomy. It plied palate. gutteral sounds. His he uttered and father, Crittendon, J. W. At the trial the quite to it was difficult testified that father interpret to and was sworn to tell the truth one who was not speech his understand speech son’s testimony because the his son’s parents him. His were with acquainted to the court and unintelligible was to The father also him. to understand able jury. judge asked counsel The trial people 70% those that about testified ques- to desired ask Fairbanks whether he the victim acquainted not with were who interpreter on cross-examina- tions of the to him. not be able understand would tion, that he would rath- stated but counsel committed day completely. the offense was He until he finished On er wait accompanied parents his to had never did cross-examine the Charles Paducah, Kentucky. was in He their store through his father as Charles standing outside of the store. Sometime that Fair- identified Fairbanks and testified was noticed that Charles parents later (Charles) made pants took off his and banks immediately notified the missing they and prose- get in the back seat. When the him search ensued. police. A did to him af- cutor asked what Fairbanks Fondaught pulled pants, Donald Padu- Officer off his ter Fairbanks Department responded to call Police cry. cah to father commenced junk there was a yard went to where and Dillard Offi- prosecutor then call and junk old owned Johnson cars number Fondaught who testified as hereinbe- cer Salvage met Dillard at the Co. He Noel They fore stated. were each cross-exam- to yard they started examine the and both ined counsel for Fairbanks. cars an effort to find Charles. old recalled Charles and prosecutor then prosecution as a witness Dillard testified penis his put whether Fairbanks asked that he observed two men in the at the trial up his head his Charles nodded rectum. wagon of a which was end station back manner, and and in an affirmative down moving, being jarred. He sense of as, “Yes.” interpreter gave his answer lying next to the door and saw Charles immediately that The father also testified was nude the waist down. Charles happened it to him reported his son after it was also nude and was behind Fairbanks questioned Both him and to his mother. Charles, Charles, making against motions explained to them in detail the inci- and he actually Fair- bumping him. He did not see dent. entering Dil- penis Charles’ anus. banks’ day father further testified that Fondaught Officer had to tell lard and they was found took him to after Charles wagon come out of the station Charles Hospital emergency room Baptist Western up get pull pants and him to and they body about his found bruises where his shirt. button to the rectum. but no lacerations he Fondaught that when Officer testified took the stand and denied that Fairbanks wagon he ob- to the station walked over sodomy with Charles. He did committed he against that Fairbanks’ stomach served wagon he was in the station were admit that clothes down back. Their Charles’ wagon got in the station knees, they said that Charles complete- were their below along beside him while he waist and sat down the area from the down. nude in ly drinking can of beer. (Fairbanks) was any observe movement of their He did not pants that his were down. Fairbanks denied bodies.

QQ was for the to decide whether U.S. It S.Ct. L.Ed.2d reh. denied, of the two believe U.S. S.Ct. Annot., (1972) (wife); witnesses Dillard and Officer Fon- L.Ed.2d 591 ed daught, story or the incredible A.L.R. 941-47 Fair- banks. Beto, Fairbanks relied on *3 (5th 1970) F.2d 875 is in the Cir. which we think

Fairbanks contended District Court of inapposite. It a before us for the involved the selection by and counsel Public husband interpret against to the wife's ra- judge Defenders office that the trial abused pist. case, present Unlike the appointed discretion the crime when he the father by was not wit- supported eye disinterested interpreter; as that the father became emo- nesses who at involved; testified trial. tionally he (Fairbanks) that deprived right of the of confrontation and opportunity Fairbanks full to con- law; process of due of and that his convic- front his accusers who were Fon- Officer fundamentally tion was unfair. daught and Noel and Dillard to cross-exam- ine them length. They at were be

It should noted that at the trial Fair- ed witnesses to through revolting banks this occurrence his counsel made objec- no everything and testified except to the actual appointment tion of the father as penetration interpreter. by which was testified He was given opportunity Charles and by further established circum- interpreter to cross-examine the as to his stantial cases 81 qualifications, evidence. See collected in but declined to do so. He Sodomy (1961). C.J.S. objection no 5§ made to the testimony of Charles and did not even cross-examine him conformity was in conviction or his father. with Kentucky by law as evidence the af firmance of highest its court. Habeas cor

Kentucky provides law for the ap pus is available for review of violations pointment of interpreter an to assist a wit Rulings the federal constitution. on who ness has difficulty communicating. appointment of an qualifications and inter Ky.Rev.Stat. and 28.652 28.654. §§ preter do not propor reach constitutional appointment interpreter of an by the trial Furthermore, tions. preserve in order to an court is discretionary. Duroff v. Common issue for appellate required review it is that wealth, 34, 31, 192 Ky. 47, 232 S.W. objection exception or made taken at (1921). qualifications an trial. are determined trial judge, and his

determination will not be overturned in the As well the Kentucky stated of an absence abuse of discretion. Nioum Appeals Commonwealth, v. supra, Nioum Commonwealth, Ky. v. 694-95, Ky. 108 S.W. 948: S.W. complete argument to the answer [A] it friendly interpreter]

In Nioum was and hostile contended that the inter- [about preter say crucial is to mistranslated a matter that the record also fails to show appellant objection exception was hostile to that an was made or because he was a case, by appellant’s friend of the victim. that taken this In as in counsel as to bar, time, appellant assigned case at matter at the nor was it as objection made no appointment grounds as error in the for a interpret- the friend motion er, appellate Consequently pre- new this and the court trial. court is held that this on precluded considering review. vented . . . it appeal. The trial court its broad discretion Hays, supra See also Renick v. and Duroff can select a close relative of a witness to Commonwealth, v. supra. as an interpreter serve at trial. Renick Hays, Ky. (1923) v. 256 S.W. 26 may attack re Collateral not be (daughter); Addonizio, United op States 451 sorted to defendant where the had full (3rd 1971), denied, F.2d Cir. cert. portunity litigate to raise and to the issue capacity about his to do so. It is sometimes court, neglected to do so state but in the transcript to ascertain from the court difficult with state comply neglected to reply is his or his son’s. the father’s whether of an taking In procedure. was sworn as wit- Although the father proce- the trial court used best imbecile ness, does not make clear wheth- the record available in difficult situation. dures sworn as an er he was also Judge gave careful consider- The District prob- procedural and above these Over his memo- to all of the issues raised in ation course, objec- lems, specific there is viola- and found no constitutional randum is which that the appeal in this made tion agree. We tion. as his alleged victim’s father of the use District Court is judgment unfair- fundamental interpreter constituted affirmed. ness, process due clause in violation of the Addition- Fourteenth Amendment. *4 EDWARDS, dissenting. Judge, Circuit to ascertain was made ally, no effort appeal peti- from the denial of a This is person emotionally involved a less whether corpus. writ of habeas The District tion for interpret be found to father could than the hearing apparently but Judge no conducted understanding the capable of also who was record before him. state court witness. repulsive a set of The case involves from above, appeal this is an As noted ap- a in offers difficult facts—and addition writ of petition for a of a the dismissal Fairbanks, Appellant, was problem. pellate upon relies corpus. Appellant habeas years being after convict- to two sentenced 1970), Beto, (5th F.2d 875 Cir. 426 a trial before a Ken- sodomy in ed of writ. The authority granting for as tucky court. state at- a habeas action case dealt with Prince sodomy was alleged breaking victim tacking conviction a state Crittendon, who, though 32 rape. Charles with intent commit entering old, severely as of infan- mute, alleged is retarded a result a who was of deaf husband that he paralysis. victim, The record indicates tile as the was chosen prospective be the six-year-old and capacity mental of a has a said: The Fifth Circuit interpreter. responses could not that his voice and with the complete agreement in We are by people. most There was understood court. district testimony police a prosecution from officer of a husband to inter- the choice While another who arrested Fairbanks be, at normally would pret a wife scene, which constituted person near the most, discre- of the trial court’s an abuse except crime as to complete proof of the tion,3 Billy Ray's appointment under fact, This last essential under penetration. passes “the line instant case of the facts law, Kentucky by only was established into imperfection and of tolerable fall[s] testimony, as inter- Charles Crittendon’s unfairness.”4 field of fundamental by appellant, preted father. The attempt extortion Disregarding the state, vagrant Northern testi- black from a court, prose- unknown to the which was flatly attempting or fied and denied either during Prince's counsel defense cution or charged. committing the crime trial, the action approve we cannot the hus- permitting in following appear deficiencies state trial court in the in interpret for his wife the crim- handling band to testimony crucial Charles assailant. One alleged of her Although inal trial Crittendon. defendant imagine few there obviously by retarded and said his father to can situations in which potential for bias mentality six-year-old, greater of a have the no would be appoint- trial court’s attempt qualify made to him as a an was ever injected intensely par- interested Nothing in the record indicates ment an witness. emotion-packed ty that he was ever asked to swear or into the center of an affirm questioned interpret or trial that he would tell the truth criminal

101 agree fully I Since with the alleged holding witness to the offense. above, Further- the Prince out respectfully This conduct is intolerable. case set I more, majority opinion dissent from the potential the tremendous for bias our present appeal. Even prejudice proper objec- inherent an without ap- such tions, the facts pointment substantially 20-page is revealed enhanced transcript of the state attempt. court trial show re- the extortion peated mandatory omissions 3 procedural States, See Hardin v. United F.2d 324 553 (5th 1963); Sosa, Cir. United States v. 379 protections of fact-finding process (7th also, 1967): Peoples F.2d 525 Cir. See together which appear represent to me to National Bank of Greenville v. Manos Bros. such fundamental unfairness as to violate Inc., 257, 857, 84 226 S.C. S.E.2d 868-869 process. (1954). federal due Delaware, 707, (3d v. Curran 259 F.2d writ, I would reverse for issuance of the 1958). 133, Murchison, Cir. See In re U.S. process absent new trial under due stan- 623, (1955); Turney 75 S.Ct. 99 L.Ed. 942 v. dards. Ohio, 510, 437, 273 U.S. S.Ct. L.Ed. 749 Beto, (1927); (5th Luna v. 395 F.2d 35 Cir. also, 1968). Texas, Pointer See v. 380 U.S. 1065, (1965); S.Ct. L.Ed.2d 923 Teets, Chessman U.S. S.Ct. (1957); Mooney 1 L.Ed.2d 1253 v. Holo han, 294 U.S. 55 S.Ct. 79 L.Ed. 791 *5 defending In appoint- the state court’s ment, appellant cites several cases McKNABB, John Edward qualifications which discuss the of inter- Petitioner-Appellant, preters. Each factually of these is distin-

guishable from the instant case. The de- bearing cision the closest factual resem- America, UNITED STATES of blance to the present case is Almon v. Respondent-Appellee. State,5 where a permitted mother was No. 76-2309. interpreter tongue-tied

serve as for her Appeals, United States daughter, the victim of an alleged rape. Circuit. Sixth Appeals The Alabama Court of held that appointment of the mother not consti-' did. Dec. 1976. Submitted tute error because the victim “could not 3, 1977. March Decided by any understood one not familiar Thus, with her.”6 the nature of the vic-

tim’s speech impediment prevented the obtaining wholly

court from person. following

ed comments of support

the court our decision in the in- case; course, stant “Of the law contem- fair,

plates impartial, that a and correct

interpretation had, shall be and to this

end, a interpreter disinterested should be possible

provided if to be secured.”7 It clearly possible to secure a disinter-

ested the instant case. requires

Fundamental fairness no less. Ala.App. 109 So. 371 6 Id. So. at 372. 7 Id. 109 So. at 372. Beto, supra at 876—77.