Justices at the state’s highest court seemed in no rush on Wednesday to release a deaf and mute defendant who’s being held without trial in a 2005 murder case from James City County.
And one justice said that Oswaldo Elias Martinez and his lawyers should use an altogether different approach — a court challenge mechanism that goes back 800 years — to try to free him.
Martinez, 47, an undocumented immigrant from El Salvador, is charged with capital murder in the rape and strangulation death of 16-year-old Brittany Binger outside a mobile home park. Martinez lived in a shed down the road from where the crime occurred, with prosecutors saying DNA evidence links him to the crime.
But because Martinez can’t communicate with his lawyers — and hasn’t learned signed language well enough to do so — a Williamsburg judge ruled in 2013 that he was “unrestorably incompetent” and is likely to remain that way “for the foreseeable future.”
With courts ruling that defendants can get fair trials only if they can understand what’s happening and can help their attorneys, Martinez’s lawyers say it’s now time to set him free from Central State Hospital, the Petersburg facility where he’s being held.
But none of the Virginia Supreme Court’s seven members on Wednesday spoke in favor of freeing Martinez, who wasn’t brought in to attend the hearing.
Justice Stephen McCullough defended how the state handles “the worst of the worst” defendants.
There’s a five-year time limit for how long incompetent defendants charged with felonies can be held without trial. But the law says those charged with capital murder can be held indefinitely as long as they’re receiving “medically appropriate” treatment for restoration and present a danger to themselves or others. They get court hearings every six months to see if any progress has been made.
“He’s getting oodles of due process,” McCullough said. “It’s not like we just hold someone for no reason … and throw him in a dungeon.”
Martinez’s attorney, Timothy Clancy, told the justices it’s not right to hold an incompetent defendant “in perpetuity” without a trial and added: “Respectfully, he is presumed innocent.”
Clancy said the sign language treatment that Martinez has gotten is not “medical treatment,” so can’t be considered “medically appropriate.” The lawyer said his client is getting “two or three hours per month” of efforts to help him communicate with staff.
“He never had a foundational language … so there’s nothing to build upon,” Clancy said. “He will never become any more proficient in communicating.”
But Justice D. Arthur Kelsey said he doesn’t agree that treatments are barred merely because “you can’t find a chemical” drug to treat a defendant or “there’s nothing in the Merck Manual that talks about it.” Kelsey agreed with the state attorney general’s view that the law is about “not doing unwanted harm” to a defendant.
The justices on Wednesday also grappled with a crucial legal issue — whether they or the Virginia Court of Appeals has jurisdiction over the case.
Civil disputes are typically appealed to the state Supreme Court. But criminal appeals first go to the state Court of Appeals. And except in certain circumstances, cases can’t be appealed unless a lower court judge has made a final ruling in the case.
Assistant Attorney General Matthew Dullaghan said Martinez has no right to appeal — and the Supreme Court has no jurisdiction — because there’s no final order and it’s a criminal case.
A Williamsburg Circuit Court judge ruled last year that Martinez’s lawyers could appeal his detention to the Supreme Court as a civil issue. But Kelsey said the dispute — since it’s part of a murder and rape case — seems to be a criminal one.
Justice McCullough said that, instead of an appeal, Martinez should file a “writ of habeas corpus,” which would automatically go to the Virginia Supreme Court. That’s a type of court challenge, dating to the Magna Carta in 1215, in which someone argues his “body” — corpus, in Latin — is being illegally held.
“Why isn’t that the vehicle to challenge an illegal detention?” McCullough asked.
Clancy said he was legally “bound” follow the lower court judge’s order and appeal to the Supreme Court first, but expects to file a habeas corpus petition later.
The Supreme Court isn’t expected to make a ruling until April. If the 2005 indictments are dismissed, Martinez would not be released, but to the custody of the U.S. Bureau of Immigration and Customs and Enforcement (ICE), which has a detainer to get him deported on the basis of being in the country illegally.
One of Brittany Binger’s closest friends, Leslie Chambers, was at the courthouse after the hearing, learning from attorneys about how it went. “She had people that loved her, and people who still care about her,” Chambers told a reporter.
Peter Dujardin can be reached by phone at 757-247-4749 or by email at email@example.com