CAN THE STATE HOLD DEAF MUTE MAN IN­DEF­I­NITELY?

Key hear­ing this week in vex­ing case with de­fen­dant un­able to stand trial

Daily Press (Sunday) - - Front Page - By Peter Du­jardin Daily Press

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 mur- der 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. 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 En­force­ment (ICE). The agency has a de­tainer on him to get him de­ported on the ba­sis of be­ing in the coun­try il­le­gally.

A bru­tal killing

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.

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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?”

A HEINOUS CRIME: Oswaldo Elias Martinez, left, is ac­cused of beat­ing, rap­ing and killing Brit­tany Binger, 16, on Jan. 2, 2005. Above: A small me­mo­rial marked the spot where Binger’s body was found in front of the Whis­per­ing Pines mo­bile home park on Route 60 in James City.

Binger

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