Oswaldo Martinez, a 46-year old deaf and mute illegal immigrant from El Salvador charged with the rape and murder of a 16-year old girl in James City County more than 12 years ago, still is not able to communicate effectively and was ruled again Monday unable to stand trial.
A Central State Hospital report from April 19 stated that Martinez is "unrestorably incompetent"— the same language used in previous court documents — and would not be able to stand trial on capital murder and rape charges in the Jan. 2, 2005 death of 16-year old Brittany Binger, according to his attorney, Timothy G. Clancy.
"The expectation is that will continue indefinitely, as I understand," Clancy said Monday at Martinez's check status hearing in Williamsburg-James City County Circuit Court.
Prosecutor Nate Green said in court that Martinez was still acting out sexually in the hospital, "evidence that he remains a danger."
Martinez, according to court documents, is accused of beating, raping and strangling Binger, but because he cannot speak and had no formal language training at the time of the alleged crime, has not been tried. Clancy has said previously that Martinez has not been diagnosed with any mental disability, only an impaired ability to understand court proceedings.
He had been receiving American Sign Language lessons at Central State Hospital for eight years until July 2013, when doctors said he would never be able to be made competent enough to stand trial. At that time, Judge William Shaw found him incompetent to stand trial due to not being able to aid in his own defense.
Virginia law allows for a defendant to be held indefinitely for treatment if they are incompetent to stand trial, pose a danger to society and are receiving medically appropriate treatment.
On March 24, Shaw issued a letter of opinion denying Clancy's motion to dismiss the charges against Martinez, and filed a second motion April 14 to dismiss the case.
In the motion, Clancy notes that Martinez is at Central State Hospital in Petersburg for treatment — the word treatment in quotes in the court document — he is no longer receiving. And, Clancy said those treatments to educate him in sign language were not medical in nature.
After those arguments were initially rejected by Shaw, Clancy wrote in his second appeal that Virginia code does not allow for a defendant such as Martinez, who has been found incompetent to stand trial, to seek direct appellate review of the trial court's decision.
"The trial court's findings are never 'final' such that the Defendant can note an appeal and seek direct appellate review; instead the matter is perpetually re-set for six-month review hearings," the motion states.
Clancy argues that it violates the Equal Protection Clause of the 14th Amendment, also arguing in the motion that Martinez has not had any opportunity over the past 12 years to have another judge rule whether the court's interpretation of Virginia code with regard to whether trying to educate Martinez in sign language constitutes medical treatment.
Shaw said he would respond to the motion within three weeks.
Another check-status hearing is set for 1 p.m., Oct. 23 in Williamsburg-James City County Circuit Court.
LaRoue can be reached by phone at 757-345-2342.