Oregon State Bar Bulletin — NOVEMBER 2010


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Oregon has long been a sanctuary for people fleeing persecution in their homelands, searching for stability after disasters — natural and manmade — decimated their own countries, or simply hoping to earn more money and make a better life for their families.

During the 1960s and ’70s, Oregon became a second home for thousands of people escaping war and refugee camps in Southeast Asia. They were followed by people from the former Soviet Union and Africa. And, over the last four decades, the state’s population of Hispanic residents has flourished.

Yet, it was only 15 years ago that Oregon passed a law requiring testing and certification of interpreters who work in the courts. The law was passed after Santiago Ventura Morales was wrongly convicted of murdering a 19-year-old migrant farmworker in 1986. Morales, who maintained his innocence throughout his trial and appeals process, was from Mexico and was provided a Spanish interpreter. However, Morales was of Mixteco heritage and Spanish was not his native language.

With Paul De Muniz as his primary defense attorney, Morales successfully appealed the conviction and was released from prison in 1991. De Muniz, now chief justice of the Oregon Supreme Court, says that despite more than a decade of experience as a criminal defense lawyer by that time, he realized he had much to learn during the Morales case.

“It became clear to me when I began to represent him that I really didn’t understand the way in which linguistics and cultural barriers could impact the fairness of criminal proceedings,” De Muniz says. “For me, it was a fairly steep learning curve, so I had great empathy for the lawyers who had come before me and had been thrust into cases like this but didn’t have the luxury of time to truly understand the magnitude of the issues.”

De Muniz humbly acknowledges that the Morales case was a catalyst for remarkable reform within Oregon’s legal system. He hastens to add that the goal was simply to level the playing field and ensure that the system is fundamentally fair.

As basic as it sounds, De Muniz says, one of the biggest outcomes of the Morales case is that many legal professionals learned that few countries are homogenous. In fact, most nations around the world are filled with several different indigenous populations, and each may speak a different language or dialect, engage in diverse social and cultural customs, and hold divergent religious beliefs.

With that understanding, Oregon’s legal system and the professionals who practice in it took a giant step toward cultural competence. Still, as the state’s immigrant population continues to grow, there is a corresponding need for greater awareness, many say.

What Exactly is ‘Cultural Competence’?
According to the National Center for Cultural Competence at Georgetown University, “cultural competence” is a set of values, behaviors, attitudes and practices that allows a system, organization, program or individual to work effectively across cultures. It recognizes the capacity to respect the diverse beliefs, language, interpersonal styles and behaviors of people receiving services as well as the staff providing those services.

Cultural competence has been on the American Bar Association’s radar screen increasingly over the last decade. From cultural competency in criminal law and family courts to law firms and law schools, the ABA’s goal across the board is to increase the sensitivity and awareness of those practicing at all levels of the profession. As part of this effort, the ABA’s educational resources on cultural competence are so wide-ranging as to include guidance in handling transracial adoptions, end-of-life discussions and even disaster recovery.

With Portland ranking 11th on the list of U.S. cities with the highest refugee populations, cultural competence takes a high priority for the Oregon State Bar as well as many of its members, particularly those who work with people who have resettled here.

Chanpone Sinlapasai, a partner at Marandas & Okamura in Lake Oswego, represents clients on immigration matters such as visas, citizenship issues, deportation defense and appeals. She also helps clients with divorces, custody disputes, child support agreements and other family law issues.

Sinlapasai, whose family moved to the U.S. in 1980 as refugees from Laos, understands firsthand the challenges many of her clients face as they attempt to resettle in a new country.

“It helps the clients identify and that’s very important,” she says.

And, Sinlapasai adds, there has been a definite increase in the number of foreign-born people — and the number of diverse ethnic groups — coming to Oregon. While the number of immigration attorneys is on the rise as well, there still is plenty of need to go around.

Oregon Lays Out the Welcome Mat
Sinlapasai, who serves on the board of the Immigrant and Refugee Community Organization (IRCO) and is a member of the FBI Multicultural Advisory Committee, says that between 1975 and 2009, 57,229 refugees resettled in Oregon. The bulk of those refugees came from Cambodia, Laos, Thailand and Vietnam.

Another 857 families are expected to move to Oregon this year from refugee countries, primarily from Burma and Bhutan. A growing number of Middle Eastern families are anticipated to relocate here as well, Sinlapasai says.

”Those numbers can’t capture the non-refugees who are here or those people who are undocumented,” she notes.

Those who come to Oregon to escape wars, torture or other trauma often have mental health issues. Some, Sinlapasai says, have lived in refugee camps for decades and haven’t dealt with the mental or physical problems that plague them.

Many members of Oregon’s first wave of refugees were victims of the Indochina Wars and, in order to help them, Dr. David Kinzie in 1977 founded the Torture Treatment Center of Oregon. Located on the Oregon Health & Science University campus in Southwest Portland, it is the nation’s oldest treatment center for victims of torture and severe war trauma.

Today, the center serves survivors from Afghanistan, Bosnia, Central and South America, Ethiopia, Iran, Iraq, Somalia, Sudan and other parts of Africa. Overall, the center treats immigrants from 20 different language groups.

Despite the many resources Oregon does offer, Sinlapasai says, there is not enough care to treat all of the families who come here. She and her partner, John Marandas, often encounter clients who are dealing with combat stress, depression and suicidal thoughts, all of which impact their credibility during immigration hearings and other proceedings.

“Like any trial, whether someone is believable and reliable is an issue,” Marandas says.

On top of that, cultural and language barriers often hamper the process. Sinlapasai believes the state lacks adequate translators.

“It’s really hard to find interpreters who understand what our clients’ needs are, and language is an issue,” she says. “Sometimes we have to fly people in from out of state and postpone court hearings, and that can be difficult for clients where time is an issue.”

Culture Clash
Verbal language is just one barrier common to many ethnic groups who must, for one reason or another, deal with Oregon’s court system. Body language is another quagmire of potential misunderstandings. For example, in some cultures it is considered rude to make direct eye contact, but most Americans view it as a sign of openness, honesty and focused attention. For a jury attempting to determine someone’s guilt or innocence, a defendant’s lack of eye contact could be particularly troublesome.

As another example, crossing one’s arms over the chest may signal hostility or defensiveness in American culture, depending on the circumstances. However, in other cultures that posture is completely acceptable and sends no such negative signals.

Ronault “Polo” Catalani, program coordinator for the City of Portland’s New Portlanders program, has personally experienced the minefield that both verbal and nonverbal language can present, as well as a slew of other cultural nuances. Catalani’s family was expelled from Indonesia, forced émigrés from the Netherlands, and then resettled in Salem during the 1960s.

At the urging of then lawyer, now Multnomah County Circuit Court Judge Angel Lopez, Catalani went to Willamette University’s law school and graduated in 1983. For 20 years, Catalani was the managing attorney of Community Legal Services, an immigrant and ethnic minority community practice.

As head of the New Portlanders program, formerly the Immigrant and Refugee Affairs Program, Catalani is charged with serving as a liaison for Portland’s various “ethnic enclaves” as they adjust to living with several new institutions, including the legal system.

Newcomers, as Catalani calls them, often need assistance with immigration and deportation issues. However, the leading problem he encounters in his work involves parental authority. Often times, parents are accused of child abuse when disciplining their children, particularly among Somali families. The Department of Human Services’ Refugee Child Welfare Advisory Committee reported six such cases in 2009.

Other times, the children acclimate to American culture faster than their parents, causing a power shift and subsequent problems within the family, Catalani notes.

“In many houses, the kids are in charge while the mothers are tired, overwhelmed and otherwise incapable of raising their children to be good people,” he says. “Many African kids have adopted this ghetto culture, and we have these modest, Muslim country ladies who see this and are in despair because they wonder how their children are going to be a success at anything.

“Our biggest problem is parental disempowerment and familial disintegration,” Catalani says, noting the City of Portland’s commitment to helping better integrate newcomer families is an essential step in attempting to address such problems.

Progress Being Made
Catalani also works closely with several lawyers and judges, including Multnomah County Circuit Court Judge Edward Jones. Jones says that cultural issues can vary in their significance, depending on whether it’s a civil, criminal or family law case. When it comes to criminal cases, it’s essential to take someone’s culture in mind when determining what type of intervention is going to be most effective.

“The kinds of programs that will work within one community will be counterproductive in another, so some sensitivity to that is critical if you’re trying to change somebody’s behavior,” he says.

Judges also must be sensitive to the fact that many people from different countries are more likely to confess to committing crimes they didn’t actually commit because they have been conditioned to agree with authority figures, regardless of what the truth may be.

“In some countries and some cultures the risk of non-agreement comes with great threat,” Jones says. “That may be a rational way of dealing with authority figures in some countries or cultures, but here we expect people not to just roll over in those situations.”

Many Oregon legal practitioners, in working with multicultural populations, find that their service involves educating people that they have rights and a responsibility to assert those rights, a pair of assumptions that doesn’t exist worldwide, he adds.

And, while a growing number of legal practitioners here have increasing interactions with clients of different cultures, there are plenty more who do not, Jones says.

“Frankly, up until the last few decades, most people working in Oregon’s system had very little exposure to people of different cultures,” he says. “The Hispanic and Southeast Asian populations have exploded, but those in authority still may not have had exposure to the nuances of how people from a particular culture present themselves.”

At the judicial level, Jones says, there has been marked improvement in cultural competence since he started practicing in 1975, in part because judges have a greater opportunity than many other legal professionals to interact with people from various cultures.

In an effort to strengthen cultural competence in the courts, Jones has arranged meetings where other judges and legal staff can learn from representatives of the Torture Treatment Center, the farm workers’ union and other groups established to support Oregon’s various ethnic populations. The informal presentations have allowed those who work in the courts to understand the dynamics that impact individual ethnic groups.

“Judges need compassion and tools of understanding to put themselves in the place of the parties in court,” he says. “You need to understand the motivations behind the behavior before you can come to a decision about how to deal with it.”

Lane County Circuit Court Judge Mustafa Kasubhai shares that philosophy and makes it a centerpiece in his Eugene courtroom, where many of the people who come through are Latino.

Though interpreters are readily available, Kasubhai says, a significant language barrier remains, particularly during cases that involve custody disputes.

“Interpreting is an invaluable service, but at the end of the day it doesn’t make it any easier for a judge to evaluate the non-verbals and things like sincerity that are important in determining who might be best able to care for the children,” he says.

Kasubhai says that he and his colleagues on the bench, as well as court staff and administrators, recognize the importance of taking time to ensure those with limited English-language skills understand the legal proceedings as they unfold.

“When I talk to people, I really try to communicate rather than using abbreviations or talking too fast or other things that might be confusing,” he says. “I’m committed to do what I can to make sure that when people leave my courtroom they’ve not only had an opportunity to be heard, but they know exactly what happened when they leave.”

Room for Improvement
As the effort to improve cultural competence in Oregon’s court system builds, the same effort is underway in the state’s law schools. Marva Fabien, director of professional development and diversity for Willamette University’s College of Law, says that it’s difficult to recruit multicultural students to Oregon because the state is relatively unknown in other parts of the country, let alone the world.

Still, her goal is to help the school’s few minority students feel welcome and have a good experience at Willamette, particularly when they feel overwhelmed or isolated.

“Law school is very stressful. Your vision of the world revolves around law school because you’re in the classroom and the library and that’s about it,” Fabien says. “The cases that are studied are written by Caucasian people about minorities. And, racism still happens.”

Fabien says her job is to encourage minority students to put those negative experiences behind them and remain focused on their course of study.

“We want them to stay in Oregon, so we want to make sure they are not so soured by their experiences that they blame the state and all of the great people here,” she says.

As the 25th anniversary of the Morales case nears, there are plenty of reasons to celebrate the advances Oregon’s legal system has made with regard to cultural competence. These advances can be measured in the stringent training and certification required for court interpreters, the diverse number of languages that can be translated in the courts, and the greater range of legal resources available to people from different countries.

Yet, a major obstacle to further progress remains, Chief Justice De Muniz notes.

“I think we’ve done a really good job in reform and change as we’ve gone forward,” he says. “Now one of the big challenges is funding these services. With the difficult funding choices that need to be made in state government now, we need to be able to make sure that we have sustained the progress that we’ve made because I think most people believe it’s fundamental to the fairness of our system.”

 

ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin. 

© 2010 Melody Finnemore


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