'Unrestorably incompetent,' presently unconvictable, and undeportable — Oswaldo Martinez held indefinitely in legal limbo

Staff writer

More than 14 years after Oswaldo Martinez was accused of beating, raping and murdering a 16-year-old girl, his case remains in legal limbo: he still can’t go to trial because he has been found “unrestorably incompetent.”

Now, a bill from the General Assembly awaiting Gov. Ralph Northam’s signature could make it easier for the state to hold him in custody for longer periods of time with fewer court hearings.

At the same time, the federal agency tasked with determining Martinez’s immigration status has said it can’t — and that he might not be an illegal immigrant at all.

Martinez has remained at the Central State Hospital in Petersburg because he is unable to communicate with his lawyers, according to Daily Press archives. His case has been stalled after an evaluation at Central State Hospital in 2013 found Martinez “unrestorably incompetent.” A Williamsburg judge determined he was unlikely to be made competent in the near future. Martinez cannot be criminally tried of the crimes he is accused of because of that status.

Immigration status limbo

Because Martinez is unable to communicate, officials with U.S. Immigration and Customs Enforcement have said they’re unable to determine whether Martinez is an illegal immigrant — a widely-reported immigration status that has appeared in local and national news reports as well as in the court system.

“In this case, we haven’t been able to verify alienage or potential for removability,” ICE spokeswoman Carissa Cuttrell said. Martinez is undeportable.

Martinez’s attorney Timothy Clancy said his client’s immigration status is just a footnote in the case. “It’s kind of a moot point.”

ICE has said Martinez’s inability to communicate has made it impossible for them to determine if he’s an immigrant at all, Cuttrell said.

A Freedom of Information Act request submitted to ICE on Feb. 12 has yet to be processed, though Cuttrell said ICE would likely be unable to provide much information at all due to privacy concerns after their inability to determine his immigration status.

“Without a signed privacy waiver, the agency is limited in what it can provide on an individual’s case,” Cuttrell said.

‘Unrestorably incompetent’

Martinez is deaf and mute. Attempts to teach him sign language have yielded no significant results, according to court filings in Williamsburg-James City County Circuit Court. Martinez is no longer being taught sign language, but can communicate with it somewhat, Williamsburg-James City County Commonwealth’s Attorney Nate Green said.

“Attempts have been made for almost 10 years off and on to restore his competency to stand trial, ultimately without success,” Judge William Shaw wrote in an email to the director of legal research for the Office of the Executive Secretary at the Supreme Court of Virginia in 2015.

But ICE isn’t the only government agency that has wrestled with Martinez’s inability to communicate.

In Virginia, laws limit the length of time an incompetent defendant can be held on felony charges without a trial to five years, but a caveat in the law allows for incompetent defendants charged with capital murder to be held indefinitely with semi-annual competency hearings.

Twice a year, the courts have reviewed Martinez’s competency and determined there has been no change in his status. Clancy has argued his client cannot be held indefinitely without trial.

Martinez’s legal limbo could be set to become a new norm as a bill sailed through both houses of the General Assembly this session.

The bill would reduce the frequency of court hearings for an “unrestorably incompetent” defendant to once a year for the first five years, then biannually unless the defendant is found to be competent in the interim. The change would make it easier for the state to hold Martinez or similar defendants for longer periods of time without a hearing or trial. The bill would continue to allow Martinez to be held indefinitely without trial.

The impact statement for the bill indicates there is only one person — Martinez, held at Central State Hospital — who has been charged with capital murder and found “unrestorably incompetent.” The statement indicated it cost taxpayers $459,900 in the state’s last fiscal year — $1,260 each day — to house him.

On Jan. 3, 2005, Brittany Lee Binger’s body was found just up the road from where she lived with friends and nearby Martinez’s home, a shed outside his brother’s trailer in the same mobile home park in Grove, according to Daily Press archives.

Soon after, Martinez was charged by the James City County Police Department after DNA evidence linked him to the attack, according to court records.

On May 19, 2005, Martinez was directly indicted by a grand jury in the Williamsburg-James City County Circuit Court on charges of murder, rape, forcible sodomy and robbery, according to filings in Williamsburg-James City County Circuit Court.

A fair trial

The U.S. Supreme Court has ruled that for a criminal defendant to have a fair trail, the defendant must be able to understand the proceedings and assist their attorneys with the case.

However, in 2004, Martinez was charged with driving under the influence of alcohol, according to filings in Williamsburg-James City County General District Court that have since been destroyed pursuant to Virginia Code.

The arrest warrant and criminal complaints were retained for 10 years and then destroyed by the general district court clerk’s office as prescribed by law, however, a copy obtained by The Virginia Gazette and verified by Green details the DUI.

The filings indicated Martinez was initially identified with a Social Security card and his criminal history included deportation to Mexico in 1996 and a potential sexual felony with a child; but Green called that part of the filing inaccurate.

“There is no indication that Martinez was ever deported or alleged to have committed any other sexual assault,” Green said.

Martinez pleaded guilty and was convicted on the drunk driving charge, Green said in an email.

He was given a 90-day suspended jail sentence and $250 in fines, according to the filings. Green said any communication difficulties were thought to have been taken care of with a Spanish interpreter.

“I was not present for the DUI plea,” Green wrote. “But I imagine it’s much easier to gesture your way through a misdemeanor DUI plea than a capital murder trial.”

There’s no indication that Martinez understood the proceedings or assisted his attorney, if he had one, with the case. The College of William and Mary asked for all requests for comment from the college police officer who served as a translator on the case to be facilitated by the James City County Police Department. The police translator later told James City police the request would need to go through William and Mary.

“At the time of that offense and throughout the legal proceedings, there was no request that he be evaluated for competency by Martinez’s defense counsel,” Green wrote in an email.

In Green’s mind, that DUI conviction has little to do with the much more serious charge of capital murder that keeps Martinez in state custody.

“The DUI information was shared with all evaluators, but because of the simplicity of DUI proceedings, I don’t think any evaluator gave it any significant weight in coming to their conclusion,” Green wrote in an email. “I personally give it no weight in regards to his competency and his ability to communicate with his attorney because of the vast difference in the relationship and level of communication that takes place between an attorney and a client during a DUI prosecution and between an attorney and a client on a capital murder charge.”

At the end of the day for Green, the issue is not where Martinez is from or his legal status. He said it has always been about finding justice for Brittany Binger.

“All along, my position has been entirely independent of Maritnez’s immigration or legal status,” Green wrote in an email. “I am concerned about holding him accountable for raping and killing a 16-year-old girl. The accountability I am concerned about has zero to do with his immigration status or whether he was here legally or not. I have never felt that deportation was an acceptable or satisfactory replacement for a trial and the appropriate punishment if he is convicted.”

Roberts can be reached at 757-604-1329, by email at srobertsjr@vagazette.com and on Twitter @SPRobertsJr.

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