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Every night at seven, sixty-year-old Naim Amini calls his eldest daughter from prison. It's been their ritual since Amini was incarcerated three years ago. During their conversations, he's often told her, "After every darkness, there is daylight. Allah will answer our prayers."

On Thursday, January 16, his daughter picked up the phone in tears and cried, "Our daylight is here!"

That morning, the Colorado Court of Appeals issued a decision nullifying Amini's January 2000 conviction for sexual assault on a child. The court ruled that Amini's constitutional rights were violated because neither his public defender nor the trial judge ensured that Amini could understand and communicate with his court-appointed translator. ("Trial and Tribulations," November 21, 2002).

Amini is a former lieutenant colonel in the Afghan army who fled his homeland following the Soviet invasion of Afghanistan in 1979. He and his wife and three children lived in India until 1990, when they moved to Denver. Amini's native tongue is Dari, one of the two official languages of Afghanistan, and he speaks little English. But the interpreter provided for him at trial was an Iranian who spoke Farsi and had never been to Afghanistan or studied Afghan languages. Though Dari and Farsi are related, they are distinctly separate dialects, akin to Spanish and Portuguese, each with their own heavy accents and colloquialisms.

"Even if [Amini] had the ability to inform [his public defender] of his difficulties with the interpreter, there is no indication he understood that he had a right to object to the interpreter," Judge Jose Marquez wrote in the Court of Appeals decision, which was unanimous. "[Amini] was faced not only with overcoming everyday communication difficulties, but also with attempting to understand complex legal concepts."

Most crucial among those concepts was Amini's right to testify in his own defense. He was put on trial because a then-twelve-year-old friend of his youngest daughter accused him of touching her breasts. Amini did not take the stand during his trial, meaning he did not look the jury members in the eye and proclaim his innocence. No one had explained to him that in the United States, criminal defendants testify to a jury -- not a judge, as in the Islamic system of justice. He says he waited all through the trial for the judge to ask him questions.

"While [Amini's public defender] had some concerns that [Amini] may not have understood and was not communicating very well at the time, he did not do anything to address them," Judge Marquez wrote. "Such conduct cannot be characterized as sound trial strategy. We conclude that that there is a reasonable probability that but for counsel's unprofessional errors, the result of the trial would have been different.

"Accordingly, defendant's conviction cannot stand."

Former Douglas County Public Defender Wayne Cole, who represented Amini at trial, says he more or less agrees with the appellate court's assessment of his performance. "I think I certainly should have made further efforts to confirm the adequacy of the interpretation. There's no doubt about it," says Cole, who is now a public defender for Arapahoe County. " I certainly understand the conclusion reached by the Court of Appeals, and I'm very pleased with the fact that they reversed Mr. Amini's conviction."

So is Amini. "He was speechless at first after I told him, then ecstatic," says Amini's daughter, Mariam. "Then he wanted to know what happens next and how long he has to stay in prison."

That depends largely upon Colorado Attorney General Ken Salazar. His office has until January 30 to file a motion with the Colorado Court of Appeals to reconsider its decision. If that deadline passes, the attorney general's office has until February 17 to file an appeal with the Colorado Supreme Court. And if that happens, the Supreme Court has another six months to decide whether it will hear the case.

"We have no idea at this point what, exactly, we're going to do," says Salazar spokesman Ken Lane. "It's too soon. A decision will be made sometime in the next ten court days."

In the meantime, Amini waits in prison.

"It could be a long, drawn-out affair if the state Supreme Court decides to intervene and take another look at it," says Denver attorney Paul Grant, who argued Amini's case before the Court of Appeals last December. "Obviously, we're hoping they don't. The situation is already absurd. My client's been in prison for three years."

If the mid-February deadline passes without Salazar's office filing an appeal, the Douglas County District Attorney's Office then has ninety days in which to decide whether to retry Amini. During that period, however, it's likely Amini would be freed on bond.

"It's not over yet," says Grant. "I'm not celebrating until Mr. Amini is there to celebrate with me."

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David Holthouse
Contact: David Holthouse