VA - Brittany Binger, 16, raped & murdered, James City County, 2 Jan 2005

A ruling gauging the potential risk and need for further treatment of a man accused in the 2005 robbery, rape and slaying of a 16-year-old girl will determine whether he walks free or remains in a state hospital indefinitely.

Bounced between state hospitals and jail since he was arrested in 2005, 42-year-old Oswaldo Martinez was deemed incompetent to stand trial and unlikely to ever be restored to competency at a hearing in September 2013. The ruling was based on his inability to communicate and assist in his defense. Commonwealth attorney Nate Green began arguing against release Monday morning, but proceedings were suspended to allow the defense time to summon an expert.

It's unlikely a ruling will be made before the new year.

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She was a slender, pretty girl, sentimental by nature, tough by necessity. Her life had been 16 years of bad road. A high school dropout, daughter of a bulldozer operator and a mini-mart clerk, she was an orphan of divorce, estranged from her father, out of touch with her mother. Her dreams were simple, her friends said. She wanted a steady job and a stable home...

Now, in jeans and white sneakers, she walked in the dark past the bar and the mini-mart. She made it only a few hundred yards farther, to a swath of grass at the Whispering Pines entrance. And as she lay there dead that night, no one missed her; the friend didn't know she was coming.

A newspaper carrier found her two hours before dawn Monday. She was on her back, legs together, arms outstretched -- "a crucifix position," police called it. Her sneakers were off and her jacket was unsnapped. Her T-shirt was hiked up and her jeans were yanked down. An autopsy confirmed that she had been raped.

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A judge’s ruling will keep a deaf-mute man accused of capital murder institutionalized until he is able to stand trial.

But experts say that day will likely never come for Oswaldo Elias Martinez, 46.

Martinez, who cannot speak any language, including American Sign Language, has been in and out of jail and mental facilities since his February 2005 arrest, said Williamsburg-James City County Commonwealth’s Attorney Nate Green.

His incompetency is not due to a mental defect, but the inability to understand language, Green said.

“We’ve kind of thrown up our hands and said there’s no treatment that’s going to restore competency,” Green said. “That’s not the end of it. There are still provisions in the law that talk about what you’re going to do with [him].”

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The man who raped and strangled 16-year-old Brittany Binger left a wealth of DNA evidence at the scene. He attacked her on a long-ago winter night as she walked beside a country road called Pocahontas Trail. Authorities found his semen in the victim and slivers of his scratched-off skin under her fingernails.

“A slam dunk,” recalled one detective. “That’s what we thought.”

Twelve years later, however, the curious case of Oswaldo Elias Martinez — who has been deaf and effectively mute all his life — is a long way from being resolved.

Unable to read, write or enunciate more than a few small words, Martinez communicates mainly through pantomime, grunts and crude drawings. As a result, even though experts say he is not psychotic or severely intellectually impaired, he remains legally incompetent to stand trial because he cannot assist in his defense or understand what is happening in a courtroom.

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“I’ve represented a number of capital defendants in my time,” said his attorney, Timothy Clancy, who has been practicing law for 30 years. “This case by far is the most unusual I’ve had — completely unique.”

Clancy has asked a judge in Williamsburg to dismiss the case, arguing that Virginia, by continuing to keep Martinez behind bars, is violating his constitutional rights to a speedy trial and to due process and equal protection under the law. The legal fight over that issue, set to begin next month, is bound to be knotty and protracted, possibly wending through several state and federal courts.

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Asked about his client’s version of events on the night Brittany was attacked, Clancy, the defense attorney, shrugged, saying, “No one can communicate with him effectively enough to know even that.”

A judge in 2005 declared Martinez unfit to take part in court proceedings, and he has not been allowed to enter a plea in the case.

To be legally competent, as the Supreme Court defines it, Martinez would need to be able to assist in his defense by communicating coherently with Clancy, and he would have to possess at least a general understanding of what was going on in the courtroom during his trial.

His language deficit appears to be the only obstacle preventing him from being called to account in the girl’s death. Mental-health professionals who have met with Martinez over the years said he shows no signs of serious psychiatric illness. As for his IQ, measured at a below-average 68, examiners said linguistic and cultural barriers often skew the results of intelligence tests. They said he is not cognitively disabled, as best as they can tell.

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The April 19 report states Oswaldo Martinez, 46, is “unrestorably” incompetent and doctors expect that to “continue indefinitely,” defense attorney Tim Clancy said Monday.

Martinez cannot speak any language, including American Sign Language, and has been in both jail and psychiatric facilities since his February 2005 arrest. He has not been able to learn enough ASL to understand the legal proceedings against him, Commonwealth’s Attorney Nate Green has said at previous court hearings.

Judge William H. Shaw wrote a letter of opinion for the case March 24, and stated in court Monday that Martinez remains incompetent to stand trial and will remain in treatment as he is currently.

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Binger’s close childhood friend, Leslie Chambers, 28, was also present for the court hearing. Chambers has gone to many of Martinez’s court hearings over the last 12 years.

“Twelve years later and I’m still here in this courthouse,” Chambers said, adding that the case would “never really be over,” whether there is a trial or not.

Martinez’s next check status court appearance is scheduled for Oct 23 at 1 p.m.

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A 12-year-old case against a deaf-mute illegal immigrant accused of murdering a 16-year-old girl in James City County is now ripe for an appeal, and will likely head to the Virginia Supreme Court.

Martinez is charged with capital rape and capital murder in the 2005 death of 16-year-old Brittany Binger. Although a person accused of a felony can be released from custody if the case does not go to trial within five years of the alleged offense, capital crimes do not qualify under that law.

A court order and accompanying objection prepared by defense attorney Tim Clancy Thursday argues that Martinez’s ongoing confinement without a trial is unconstitutional.

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“We will continue to have the six month reviews, but in the near future I’m confident this case will also be placed on a track that will end with the higher courts reviewing Judge’s Shaw’s decision to continue to hold Mr. Martinez,” Commonwealth’s Attorney Nate Green wrote in an email Thursday.

“This Defendant has had no opportunity over the past twelve years to have any other judge or justice opine as to the correctness of this Court’s interpretation of Virginia Code … [whether] the continued detention of the Defendant without any attempts at all to ‘treat’ (in reality educate) him is permitted,” an April 14 defense document states.

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