Disabilities can create courtroom confusion

by JED LAYTON

For many people, the courtroom is unfamiliar territory.

The judicial process can be difficult to understand and the legal language seems foreign. Life-changing decisions are made by strangers and a significant amount of trust is put in the hands of attorneys, judges and jurors.

Add in a communication barrier, and the courtroom becomes more intimidating. For many people with communication disabilities, such as a speech impediment or deafness, it can be a nightmare.

Barbara Toomer, secretary of the Disabled Rights Action Committee, a privately funded and nonprofit organization, said people with disabilities are often at a disadvantage in public places, including the courtroom.

Toomer said such disadvantages can be in violation of the Americans with Disabilities Act. However, the Disabled Rights Action Committee and other organizations are working to change that.

“It is discrimination to deny someone public services regardless of any disability,” Toomer said. “We are trying to make sure people have a voice and access in their communities.”

The Americans with Disabilities Act was created by Congress in 1990 and signed into place by George H.W. Bush. It changed the way public places were required to accommodate people with disabilities, especially in regard to communication.

The ADA requires public agencies to provide ways in which people with disabilities can effectively communicate with others, just like an average person can, according to the U.S. Department of Justice.

Toomer said one of the biggest problems people with disabilities face is that ADA regulations are often unknown or confusing.

“Many public agencies don’t know of the ADA or don’t know it well enough,” she said, “and some people with disabilities don’t know their own rights.”

People who have ADA complaints can contact the Disabled Rights Action Committee or similar organizations. The Disability Law Center provides free legal advice and representation for Utahns with disabilities. The Access Utah Network is a government agency that is attempting to make Utah more accessible to people with disabilities.

“[The Disabled Rights Action Committee] will get them in contact with a disability rights attorney that can advise them,” Toomer said.

Lisa Fine, an attorney with the Disability Law Center, said most Utah courts want to help people with disabilities have better access.

Fine provided legal counsel and helped mediate a disability access complaint between Lana McKinsey of Layton, Utah, and the Layton City Courthouse. She said it served as an example of how courtrooms and people with disabilities can work together to find solutions.

McKinsey was born mostly blind and has been partially deaf for the last five years. She can only hear with the help of hearing aids.

McKinsey was in court because of a domestic violence case where she was the victim. When it was McKinsey’s turn to speak she was unable to use any of the accommodations the Layton courthouse had in place to help people with disabilities.

The ADA recommends public entities have qualified interpreters, note takers, computer-aided transcription services, assistive listening devices and systems, audio recordings, Braille and large print materials, hearing aids and other methods to make communication accessible to all.

McKinsey could not use translation, telecommunications devices for deaf persons, captioning or video text displays because of her limited sight.

She was also unable to use the assistive listening devices because the amplifiers conflicted with her hearing aids. None of the other ADA methods worked or were available.

McKinsey left the courthouse in tears because she was unable to hear the questions and provide answers in a case that directly involved her.

She contacted Fine a few days after the communication dilemma. Fine said the situation was difficult but was appropriately dealt with by the Layton Courthouse.

“I was impressed. It was a government entity that responded quickly and sincerely,” Fine said.

Al Hansen, the building coordinator for the Second District Court for Utah, which includes the Layton City Courthouse, helped resolve McKinsey’s problem and recommended a similar procedure for other public entities in comparable situations.

“We determined the problem, did our own research and then involved Lana [McKinsey] in the decision making process,” Hansen said. The courthouse obtained other types of assistive listening devices from neighboring courthouses and let McKinsey determine which one best suited her.

“It was a win-win situation for everyone,” he said. “We felt good about it, she felt good and now we have both kinds of assistive listening devices for the future.”

Fine said the situation was handled perfectly and was an example of how ADA complaints should be resolved.

Hansen said the courts he oversees do their best to follow the guidelines set out by the ADA and attempt to fix problems as soon as possible.

“We want everyone to feel comfortable if they need to come to court,” Hansen said. “It is almost impossible, but we do the best we can to meet everyone’s needs.”

Still, Toomer and other disability organizations would like to see the courts make more improvements.

Mark Smith, information specialist for the Access Utah Network, said enforcement of ADA regulations is mostly driven forward by people with disabilities. He said limited regulation and enforcement has made the ADA a weak document.

“People with disabilities just about have to beg for changes to be made to make areas more accessible for them,” Smith said.

Toomer said some Utah courts are still not up to ADA code. Toomer, who uses a power wheelchair to move around, said she wishes public-service providers would take it upon themselves to better understand and abide by the ADA.

“Unfortunately it is up to people with disabilities to make sure the laws are enforced,” Toomer said.

Smith and Toomer said ADA problems occur more often outside of the Wasatch Front.

One problem rural courthouses face is distance. Few small towns have trained interpreters on hand for those requiring American Sign Language or foreign language translation. The Grand County Courthouse in Moab, Utah, requests interpreters from either Salt Lake City or Arizona, both of which are at least a four-hour-drive away.

Rural areas also have smaller populations; special-needs requests are less frequent, which can catch some public venues off guard.

“Smaller courthouses likely do not have the technology larger ones do,” Fine said. “Often there isn’t a need so communication methods aren’t as likely to be made available.”

Claudia Page, clerk of court for Grand and San Juan counties, said her courthouse in Moab tries as much as possible to make the courtroom open and available to anyone who needs to use it. She said hearings can be postponed to allow interpreters to make arrangements to travel to Moab.

Page said her courthouse is fully accessible for people in wheelchairs and has technology to help those who are hard of hearing, either with assistive listening devices — headphones and microphones — or technology turning the spoken word into readable type.

However, Page said accommodating everyone can be difficult.

“We share the devices with neighboring courthouses in the district,” Page said. “And if we don’t have a warning a few days ahead it is almost impossible to get an interpreter on the spot.”

Toomer said the change process is slow and will only improve as communication and understanding of the ADA gets better. A goal both Toomer and Page agree with.

Communication difficulties at court disappoint woman

Story and photo by JED LAYTON

Lana McKinsey left the Layton City Courthouse bewildered.

She had arrived at the courthouse, not because of something she did, but because she was a victim. But when the time arose for her to tell what happened, she was not able to.

McKinsey is visually impaired and has partial hearing loss. She can only hear with the help of hearing aids and describes her sight as looking through a pinhole.

Lana McKinsey wears a listening device that will be made available at the Layton City Courthouse.

Lana McKinsey wears a listening device that will be made available at the Layton City Courthouse.

The Helen Keller National Center estimates that more than 70,000 Americans deal with the dual disabilities, a combination McKinsey calls life changing.

It changed her life when she attempted to give her side of the story regarding a plea bargain her neighbor was making for assaulting McKinsey. But when she tried to use the devices for the hearing impaired, she couldn’t hear.

She couldn’t hear the questions and couldn’t give the answers. McKinsey felt she was again the victim.

“They treated me wrong,” McKinsey said. “They wouldn’t let me say my say and excused me from the room. I thought that was not right.”

The whole experience left a negative impression in McKinsey’s mind of the court system and left her unhappy with the way a settlement was reached.

Six months later, McKinsey is still perturbed by her negative experience but has since worked hard to make sure that no one will have to go through what she did.

McKinsey received help from Kirsten Gwilliams, with the Utah Division of Services for the Blind and Visually Impaired, and Lisa Fine, an attorney with the Disability Law Center.

McKinsey arrived in court because on June 1, 2008, she was struck multiple by times by her neighbor, Stephanie Galbraith, in their trailer park in Layton, Utah, McKinsey said. McKinsey had gone over to Galbraith’s home to donate some dog food and other items she thought her neighbor needed.

McKinsey said Galbraith apparently also wanted the pearl necklace around her neck and attempted to take it from her. The struggle over the necklace then escalated to violence, she said.

Galbraith was charged with assault and intoxication a few days later.
The case went to court in September 2008 and Galbraith pleaded guilty to the assault charges as part of a plea bargain. During the proceedings, the court gave McKinsey an opportunity to make a statement.

“When it was my turn to talk, I could not use the device they gave me to use,” McKinsey said. “I couldn’t hear anything. It seemed like they had never had a deaf and blind person there before.”

Gwilliams said most public places have few problems with the assisted hearing devices similar to the one McKinsey attempted to use.

“However, problems arise in two ways,” Gwilliams said. “First, most people don’t know what they are or how to use them, or how to help if they are not working.”

In McKinsey’s case, no one understood why the devices weren’t working and there were no other options for her to try. Typically the Layton City Courthouse uses sign language for those who are completely deaf and can’t use the hearing devices. But McKinsey’s blindness prevented that option.

“The other problem is that there are two types of assistive listening devices typically used,” Gwilliams said. “One is a device that uses infrared and comes with ear phones. She had to take her hearing aids out to use them, but that did not accommodate her.”

McKinsey said taking her hearing aids out makes her lose nearly all of her hearing. She left the courthouse frustrated, upset and offended. Gwilliams said most courts use infrared devices because the signals do not pass through walls.

McKinsey contacted Fine and the Disability Law Center through Gwilliams. Fine listened to McKinsey’s story and quickly realized there was a problem.

“We arranged to meet with some of the Layton Courthouse administrators who were very receptive and concerned about the situation,” Fine said.

Fine said she was surprised by how quickly and professionally courthouse officials dealt with the situation. Fine also said the Layton Courthouse was not in violation of the Americans with Disabilities Act — a piece of legislation that makes it illegal to discriminate against people who have disabilities.

The Americans with Disabilities Act requires public entities to ensure communication with individuals with disabilities. It recommends the use of auxiliary aids, assistive listening systems, interpreters and many other options, all of which the Layton Courthouse had on hand. However, McKinsey was in a unique position because she could use none of them.

“It was an example of exactly how these types of things should be handled. They realized something had gone wrong and fixed it,” Fine said, notin that officials included McKinsey in the decision making process.

McKinsey was able to pick between varieties of different assistive hearing devices borrowed from neighboring courthouses. The devices were of a different type using radio frequencies instead of infrared signals. These devices used headphones instead of earphones.

“I was able to put them on and listen and had Lisa try them on too,” McKinsey said. “It was obvious which one was better and they said they would purchase one and put it in the court.”

McKinsey said that while she was not pleased with the way her own case with the court was handled, she was pleased to know someone else like her will not have to go through the stress and emotion.

“I wondered if there is another person that could have the same problem I did,” McKinsey said. “I didn’t want them to go through that.”

Fine said dealing with the Layton Courthouse was simple and easy. “They deserve a lot of credit. They did most of the work,” she said.

Since meeting with Fine and Layton Courthouse officials, McKinsey said she has moved beyond the problem and has started to move on with her life. But she said it is a relief to her that she knows that there is a way for her to communicate if she needs to go back into court.

McKinsey said she still worries that her neighbor, who lives just a short walk down the road, might seek retribution and is concerned she won’t obey the stipulations of her sentencing.

“If she doesn’t do what she is told, I will go back to the Disability Law Center, and they will represent me,” McKinsey said.