Virginia Supreme Court says it can’t hear case of deaf and mute capital murder defendant

By Peter Dujardin, Daily Press – 12/6/2018

The Virginia Supreme Court ruled Thursday that it doesn’t have jurisdiction to hear the case of a deaf and mute immigrant who’s been held without trial for 13 years.

And neither does the Virginia Court of Appeals.

The high court’s unanimous decision continues the legal limbo for Oswaldo Elias Martinez.

For 13 years, he’s awaited trial, accused of brutally raping and killing 16-year-old Brittany Binger in James City County in January 2005. But because he can’t communicate with his lawyers, he’s remained incarcerated at Central State Hospital, a secure facility in Petersburg.

“The law may not have a category for this man,” said L. Steven Emmert, a Virginia Beach attorney and expert on appellate procedures.

Martinez is not insane, but also has been declared “unrestorably incompetent,” meaning he can’t understand the proceedings or help in his own defense.

At the same time, Emmert said, “It’s unthinkable for most folks, including me, that someone who’s charged with a capital murder for which there’s a fair amount of evidence to sustain it might be just turned loose — you’re free.”

Martinez’s lawyers aren’t out of legal options just yet. They could file a petition for a writ of habeas corpus — a kind of court challenge that goes back 800 years to the Magna Carta — to dispute his detention. At a hearing before the Supreme Court in October, one justice urged that Martinez’s lawyers do just that.

“It seems that the next logical step is to assert that his continued detention is illegal, and that’s he’s got a right to be charged or discharged,” Emmert said. He said habeas petitions can likely be filed on a defendant’s behalf even if he’s incompetent to stand trial.

Timothy Clancy, one of Martinez’s attorneys, did not respond Thursday to a request for comment.

Martinez, 47, an undocumented immigrant from El Salvador, is charged with rape and capital murder in Binger’s slaying outside a James City County mobile home park. Prosecutors say DNA evidence linked Martinez to the crime, which happened down the road from a shed he was living in near his brother’s trailer.

But because Martinez doesn’t know sign language, he’s been unable to communicate with his lawyers, and the trial has been placed on indefinite hold. A Williamsburg judge ruled in 2013 that Martinez was “unrestorably incompetent,” and is likely to remain that way “for the foreseeable future.”

“He never had a foundational language … so there’s nothing to build upon,” Clancy said at the October hearing. “He will never become any more proficient in communicating.”

The U.S. Supreme Court has ruled that criminal defendants can get fair trials only if they can understand what’s happening and can help their attorneys with the case. His lawyers are asking that he be set free.

Virginia law has a five-year limit for how long incompetent defendants can be held without trial on felony charges. But lawmakers carved out an exception for capital murder: Those defendants can be held indefinitely so long as they’re receiving “medically appropriate” treatment for restoration and continue to be a danger.

In Martinez’s case, the progress reports — held every six months — have always been the same: No progress. And his lawyers say the state hospital is no longer even attempting to restore their client.

Thursday’s decision hinged on an issue involving jurisdiction.

Under Virginia law, civil disputes are appealed directly to the state Supreme Court. But criminal cases first go to the Virginia Court of Appeals. Yet before a criminal case can be appealed, there must first be a final order at the trial court level — such as a conviction.

A year ago, a Williamsburg Circuit Court judge ruled that the dispute over Martinez’s continued detention was a civil matter separate from his criminal case, and could be appealed directly to the Supreme Court.

But at the October hearing, Assistant Attorney General Matthew Dullaghan disagreed with that ruling, saying neither court has jurisdiction. And the justices sided with him.

A habeas petition is considered a civil matter, according to Emmert. A decision either way can be appealed by either side to the Virginia Supreme Court.

Peter Dujardin can be reached by phone at 757-247-4749 or by email at