Right in the heart of the University of Wisconsin law school someone is speaking Spanish. It is Tuesday, September 25, and Cristina Bordé is explaining how language and accent can mean a lot when it comes to demonstrating the innocence of Hispanics convicted in the United States for a crime they did not commit.
Vicente Benavides, for example, a Mexican ex-convict, spent 25 years on death row in a California jail, convicted for the rape and murder of a girl. Lawyers for the state agency Habeas Corpus Resource Center, where Bordé worked for 14 years to prove that Benavides was innocent. Since he was released, in April 2018, Bordé has been his spokesperson. She says that he returned to Mexico with his family and friends and that he was welcomed with a party in his hometown.
For Bordé, Benavides is not an isolated case. “I have been training lawyers and students to review cases and we see how language can greatly influence the jury and the judge in the presence of a Latino suspect,” she explains in her office, where she has an appointment later in the day with students who attend her law clinic to learn how to defend innocent people serving long sentences.
In her experience as a lawyer she found that poor English language skills and other cultural barriers can not only send Hispanics to jail, but it can make it more difficult for them to prove their innocence at trial.
Bordé —who was born in New York, but lived in Colombia with her parents between the ages of 5 and 18— understands what happens in the judicial process against a Latino suspect who does not speak perfect English. “The police arrive and interview the witness and the suspect (of a crime) in English, but the police don't have someone on their team who speaks Spanish well, so what happens is that the suspect is Hispanic and speaks only a little English, he just knows a few words, and when he's trying to defend himself, explain a simple fact or just provide information, he gets in trouble,” says Bordé.
“Then he is taken to trial and when they try to explain the whole thing in greater detail to him, or resort to interpreters —who not always translate word for word— he feels very pressured, scared and gives the impression that he is changing the story and that’s why he is not credible (...) imagine the frame of mind of a person going through a terrible tragedy that has to go to trial, even those who speak English can easily say inconsistent things,” says the lawyer.
Taking innocence as a project
Since 2014, Bordé worked as an instructor in the Wisconsin Innocence Project at the University of Wisconsin Law School, in Madison, the state capital. Students there practice solving real cases under her supervision and that of other law teachers.
One day, she came across data that was key in her the decision to start her own project helping Hispanic inmates. In 2016, she applied to and received funding from the U.S. Department of Justice to review cases and choose convicted Latinos with a very high probability of being able to prove that they are not guilty of the charges against them.
According to data from the Prison Policy Initiative, a non-partisan research and advocacy non-profit focusing on mass criminalization, of the 2.3 million people currently incarcerated in the United States, most are white, 47.4 percent, even when they represent 62.1 percent of the total population. Blacks, on the other hand, are vastly overrepresented in prisons: 35.4 percent of the incarcerated population, although they represent 13.2 percent nationwide. Hispanics represent 14.9 percent of all inmates and 17.4 percent of the US population.
Though the incarcerated Latino population is almost proportional to that of the total Hispanic population in the US, Bordé was alarmed by how difficult it is for Hispanics to be exonerated, especially due to language-related issues. According to her, of the 2,267 inmates exonerated since 1989 of crimes they did not commit, 277 are Latinos.
“I felt I had to serve this population, do something for them, so we created the Wisconsin Latino Exoneration Program. It is part of the Wisconsin Innocence Project that operates within that university's law school, but it only deals with the Hispanic population.
"ICE is coming for me"
In addition to issues with the English language, some in the Hispanic community live in constant worry and fear of not having their immigration documents in order. They feel intimidated, so they hide or flee from the police, while assuming attitudes that can make them appear suspect during an investigation, because they are scared of being arrested and deported.
But Bordé goes even further, and paints a broader and darker picture. “I have seen that sometimes authorities use the lack of legal status against witnesses to threaten them: ‘We'll deport him if you testify‘ and things like that, which affect the judicial process, because those witnesses could have helped the suspect explain where he was or what he was doing, or somehow helped prove someone's innocence."
The lack of lawyers who understand Hispanics, in Spanish, their culture and their codes of conduct worries Bordé. That's why she wants to find the resources to set up a legal defense office for Hispanics across the country, free of charge. “I want to defend all Hispanics throughout the US, not just in Wisconsin,” she says.
Cristina Bordé has her own immigration story to tell. Her Colombian parents took her from New York to her homeland when she was five years old, but at the end of the '80s “things got very difficult in Colombia and we decided to return to the US. Back then I was about to start college.” This is how she went to Harvard Law School and received her degree in 1995.
Since then she has made a career out of free defense projects for inmates on death row, like the Habeas Corpus Resource Center in California, where she spent 14 years helping mostly Spanish speakers. “I’m against the death penalty,” she says, stating that she has philosophical, moral and legal reasons to oppose it.
What they do and how they do it
The original Innocence Project was born in New York in 1992. They continue defending and exonerating innocent inmates, but they work only with DNA tests. “Some prisoners are innocent, but they don’t have DNA samples. They are accused of a homicide, of a drive-by shooting, some witnesses blame them, but there is no way for the DNA to prove anything. In that circumstance it's very difficult to take up the case,” Bordé explains.
“ We work with people who say they are innocent. Most of them are poor and can’ t pay lawyers. Then they receive the service for free (...). We have taken some cases without DNA and it is extremely difficult to prove their innocence, but in a few occasions we have achieved it.”
There are 21 names and profiles, some with photographs of the day they were released from jail, on the Wisconsin Innocence Project's accomplishment list. In total more than 30 people have been exonerated across the state since the program began, including the pro bono lawyers who have collaborated with the project as well.
How can an inmate approach the program?
The first step would be to go to the prison library and visit the project's official website, which is in Spanish and English. Inmates can also contact the project by phone, through an application form or through regular mail.
The website features the most frequently asked questions and the conditions that have to met for the project to take up a given case. For example, it is important that the inmate hasn't stated that they commited the crime in self-defense or that they "were not convicted of sexual assault after they have claimed it was a mutual consensual relationship,” according to the website.
“To be eligible, you just have to be Latino. Our staff is bilingual and can help you in English or Spanish,” Bordé says.
After receiving the request, students and supervisors study the case and schedule an interview at the prison with the potential defendant. They ask questions and the investigation begins. They search for new evidence to annul the trial that had upheld the sentence and to prove the defendant’s innocence in front of a judge.
“Cases last for years, it’s long and hard work. On average it may take up to 14 years to defend a case,” says Bordé, who says that this is why in these two years since the defense project for Latinos began, they have not had a single result. The waiting list is such that it can now take up to seven years to start defending someone. “The idea is to extend the resources in order to exonerate inmates.”
Among the most common causes of wrongful convictions are ineffective legal counseling, eyewitness mistakes, false confessions, flawed forensic science and misconduct on the part of some officers.
The landmark cases
Christofer Ochoa spent 13 years in prison after confessing, under pressure, to a crime he did not commit. He was 22 years old in October 1988 when he was accused of raping and murdering 20-year-old Nancy De Priest in Texas. He and his roommate were sentenced, but after receiving a fair defense and performing DNA tests, he was released in 2002.
He became the first Latino exonerated by the Wisconsin Innocence Project and an inspiration for the chapter that would be created 14 years later specifically to serve convicts of Latin American origin.
Ochoa received financial compensation from the state of Texas and studied law. Then he joined the Wisconsin Innocence Project since he was a student, to help solve cases like his. He was in the program’s Advisory Board and moved to Texas three years ago.
In December 2015, Ochoa testified before the Wisconsin Assembly and the Senate to support a law reform that would allow better financial compensation, not for him, but for those exonerated in Wisconsin, the worst state in terms of economic compensation for the victims of wrongful convictions.
In Vicente Benavides' case, who was also exonerated, DNA testing did not take place. Benavides has been on death row for 25 years for a crime he did not commit.
“Vicente’s (Benavides) was the first case they gave me, they told me, ‘You're Hispanic and this person only speaks Spanish, why don’t you work in this case?.' I started doing the research, we worked as a team for years and years. He was arrested in 1991, was tried in 1993, and had to wait seven years to be assigned a lawyer ... and nowadays it takes even longer in California,” Bordé complains.
“The court was in possession of the evidence that exonerated him since 2002, but Vicente was not released until 2018. Furthermore, they say that it is more common to die of natural causes when someone is on the death row in California than to die because they are executed.” Bordé gets emotional when she talks about each case. In the pictures and videos of the releases you can see her hugging her defendants when they leave jail, both in tears.
Now Bordé wants to take that experience of those who have been exonerated and replicate it beyond Wisconsin and “to be able to defend Hispanics who are innocent across the United States.”
Don't miss Mario Victoria Vásquez's upcoming story, who served 16 years and six months in prison for a crime he did not commit.
Olivia Liendo contributed to this story.