It’s been more than 13 years since Oswaldo Elias Martinez was charged in a brutal rape and slaying in James City County.
Martinez — a deaf and mute immigrant from El Salvador — was charged with capital murder and other crimes after 16-year-old Brittany Binger was found dead near the entrance to a trailer park outside Williamsburg in January 2005.
He’s been in custody without trial since his arrest a month later, and is currently being held at Central State Hospital, a secure facility in Petersburg.
And this week, the Virginia Supreme Court will hear arguments to help the justices decide his fate in a case that has vexed judges, attorneys and medical experts for more than a decade.
Martinez, now 47, has never been deemed competent to stand trial — the legal term for being able to understand the case against him and assist in his own defense. Aside from being deaf and mute, Martinez also can’t read or write.
L. Steven Emmert, a Virginia Beach attorney and expert on appellate procedures, said the case “presents some fascinating issues.”
“Somebody accused of a horrifying crime who may never be capable of standing trial, and yet the question becomes: Must he also be held in custody?” Emmert said. “How do you classify somebody in this situation? It’s a debilitating condition like blindness, but it’s not a disease, and it’s not a mental illness. Does the law have a category for this man?”
Experts from both sides say Martinez made only marginal progress on learning sign language to allow him to communicate — and stopped making any progress at all about nine years ago.
One big issue: Martinez never had a “first language” — such as English or Spanish — that uses rules of grammar which can be applied to sign language. Trying to teach Martinez sign language is so difficult, one expert said, because teachers “are trying to create something that never existed.”
His sign language vocabulary is equivalent to someone 4 years and 8 months old, one expert opined.
At every six-month review in recent years, the conclusion about Martinez has always been the same: No progress.
A Williamsburg Circuit Court judge ruled in 2013 that Martinez’s competency was “unrestorable,” and he would likely remain that way “for the foreseeable future.”
Now, Martinez’s attorneys, Timothy Clancy and Lisa Mallory, are asking the Virginia Supreme Court to toss the 13-year-old case, saying there’s no legal basis to keep holding him.
The Virginia attorney general’s office, for its part, wants Martinez to stay at Central State indefinitely, saying there’s no limit under the law for how long he can be there.
The seven-member high court will hear arguments Wednesday.
If the 2005 indictments are dismissed, Martinez will not be released to the streets, but to the custody of the U.S. Bureau of Immigration and Customs and Enforcement (ICE). The agency has a detainer on him to get him deported on the basis of being in the country illegally.
A brutal murder
Binger’s body was found in the morning hours of Jan. 3, 2005, near the entrance to the Whispering Pines mobile home park, off Pocahontas Trail. That’s down the street from the trailer park where Binger lived with her friend and the friend’s family, and where she had left on foot at about 7:30 the night before.
Police said Martinez strangled and raped the teen, with the state medical examiner determining the cause of Binger’s death as suffocation and asphyxiation.
Martinez was an undocumented immigrant who lived just a few blocks away, in a small 6-foot by 8-foot shed attached to his brother's mobile home and equipped with a cot, shower, TV and other amenities.
Tracking dogs led investigators to a cooler at a nearby gas station, where Martinez was seen on surveillance footage buying a strawberry fruit drink — the same kind as an empty bottle found at the crime scene.
A link was made between DNA found on the bottle and semen found inside Binger’s body. After Martinez’s arrest in February 2005, prosecutors said that a swab collected from Martinez’s cheek was also a match.
A long way to trial
Though he made some marginal progress on learning sign language between his arrest and 2009, court records say, Martinez has since “plateaued.”
When a judge ruled him unrestorably incompetent in 2013, it was also clear that Martinez didn’t meet the standards to be involuntarily committed to a state hospital — either as a violent sex offender (because there’s been no conviction), or from a severe intellectual disability or major psychiatric condition.
When a judge rules someone’s competency “unrestorable,” the felony charges are automatically dismissed if it’s been at least five years since the arrest. (Martinez’s robbery, rape and sodomy charges were tossed in 2014.)
But the legislature carved out a special exception for capital murder.
Those defendants can be ordered to get “continued treatment” for six-month periods “without limitation,” so long as “the court finds the continued treatment to be medically appropriate,” and the defendant is still “a danger to himself or others.”
In 2016, Martinez’s lawyers argued in Circuit Court that the statute is being misapplied and that his constitutional rights — to due process, equal protection and a speedy trial — were being violated.
They’re now taking their argument on the statute to the Virginia Supreme Court. They contend that teaching a defendant sign language “is not medical in nature at all” and can’t meet the definition of “medically appropriate.”
“The legislature never envisioned a situation where an individual would be declared incompetent to stand trial in which the person did not have a mental disease or defect necessitating psychiatric treatment,” Martinez’s appeal said.
The law doesn’t apply, his lawyers say, to “a language barrier caused by deafness" and a failure to learn sign language as a boy.
But the attorney general’s office says the law doesn’t require that such treatment be “medical in nature” — just that it not be “medically inappropriate.”
“The provision guards against continuing treatment that poses unacceptable risk of harm to the defendant,” the AG’s office said. “No evidence suggests that continued treatment poses any risk of harm to Martinez.”
By that logic, Emmert said, even “teaching someone to juggle” is allowable treatment under the law because “it’s not medically inappropriate.”
Williamsburg-James City County Commonwealth’s Attorney Nate Green said Martinez is getting other “restoration treatment” at Central State, even as his lawyers say sign language teaching is no longer being done.
Some examples of the broad efforts at the hospital, Green said, include “getting people on the right medication, teaching people on the court process” and “any number of things.”
Susan Schaller, of Berkeley, Calif., wrote “A Man Without Words,” a 1991 book about teaching sign language to a 27-year-old deaf man. The book challenges the general assumption that humans can’t learn language after a certain age.
One big question she has: Were Martinez’s teachers deaf themselves?
“I have seen many times a ‘language-less’ deaf person learn language when they are around or immersed in a deaf group or able to have a deaf teacher,” Schaller wrote in an email. “A person born deaf uses more of the brain — the cerebral cortex — for visual information processing than we hearing people. … If he has not had a deaf teacher/interpreter, then he has not been given a fair chance.”
Martinez’s attorney, Clancy, said his client had “immersion” with other deaf inmates over the years, including at Western State Hospital in Staunton. But the lawyer wasn’t sure if the sign language teachers were deaf, too.
Death penalty out
Green said he would like nothing more than to prosecute the crime and bring closure to Brittany Binger’s family. “I would love for this case to go to trial,” he said. “I would love to bring justice to this community and to Mr. Martinez. Nothing would please me more than if we could actually go to trial and present this evidence rather than remain in this limbo.”
In June 2010, Green announced he would not seek the death penalty against Martinez if he’s convicted of capital murder.
“We made the determination that while the evidence was strong as to Mr. Martinez’s guilt, it would be a difficult case to make as far as capital,” he said. Martinez didn’t have a prior criminal record, Green said, and the case might “not have lined up” with the vileness of some other capital crimes.
But it was a strategic decision, too: Green wanted those trying to restore Martinez to actually teach him the sign language he needed. Knowing that an execution awaited the man they were helping, Green said, might have been counterproductive to that goal.
“Some people may not have the stomach ... if they know that we are working to help this guy become competent so the state can kill him,” Green said.
Green said he talked with Binger’s family about taking death off the table. “I don’t want to speak for them, but I will tell you that we did discuss it with them,” he said.
Binger’s father, James Binger, 54, of James City, couldn’t be reached for comment for this story, including a request made through Green.
Martinez’s brother, Santiago Martinez, also could not be reached.
Competence v. insanity
Courts have held that criminal defendants can only get fair trials if they’re competent enough to understand what’s happening with the proceedings.
In Dusky v. United States, a landmark 1960 U.S. Supreme Court decision, the high court said defendants can’t just be “reoriented to time and place” and “have some recollection of events.”
The test, the court ruled, must be whether a defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.”
Competence is separate from a defendant’s sanity at the time of the crime.
Someone can be declared “insane” — and therefore not legally responsible for a criminal act — if they were suffering from a significant psychiatric mental illness at the time of the crime. Though Martinez appears to have only a rudimentary understanding of the case and can’t communicate, his sanity at the time of the crime is not questioned.
A right to appeal?
A big issue that’s expected to also be addressed Wednesday is whether the Virginia Supreme Court has the jurisdiction to hear the case at all.
Typically if a dispute is civil in nature, appeals are to the state Supreme Court. But if it’s criminal, it first goes to the Virginia 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.
A lower court judge ruled a year ago that the dispute over Martinez’s holding is a civil one — separate from his criminal case — that can be appealed to the Supreme Court. But the attorney general says the judge got it wrong, that it’s not a final ruling, and that there’s actually no right under the statute for Martinez to appeal to anyone.
Emmert said it’s “a close enough call,” and he could see the high court going either way.
Even if the court rules against Martinez, he won't be out of legal options. He could still file a “writ of habeas corpus,” asking a state or federal court to rule he’s being held illegally.
But for now, Emmert said, the question before the Supreme Court is, “Are they going to allow somebody to be held, theoretically forever, with no opportunity to secure appellate review of his custody?”
Peter Dujardin can be reached by phone at 757-247-4749 or by email at firstname.lastname@example.org