A years-long capital murder case that has slowly worked its way toward trial ground to a halt on its criminal track Thursday afternoon in Williamsburg-James City County Circuit Court — but the case is not over yet.
Oswaldo Martinez has been held in various state mental hospitals since his February 2005 arrest on charges he raped then strangled 16-year-old Brittany Binger. Martinez’s case has vexed prosecutors and defense attorneys alike: He’s a deaf-mute illegal immigrant from El Salvador who has not demonstrated he can understand the charges against him, let alone help in his defense.
At Thursday’s hearing, Commonwealth’s Attorney Nate Green conceded the state no longer had a criminal case.
“The commonwealth has consistently relied upon the experts, and we no longer have any evidence that Mr. Martinez is anything other than incompetent,” Green told substitute judge William H. Shaw, who is hearing the case.
Martinez was in court, watching as a sign language interpreter’s hands told his fate.
In its most recent report, defense attorney Tim Clancy told the court, therapists from Central State Hospital in Petersburg wrote Martinez was unlikely to gain the communication skills necessary to be found competent to stand trial.
But as Green conceded that point, he also pointed at a provision in the law that says if a court finds a defendant is incompetent and likely to remain so, but that defendant is also suspected of being a sexually violent predator, the state can take steps in civil court to have the defendant committed. That’s been part of Virginia law since 2003, with the General Assembly in their 2012 session unanimously directing the Department of Corrections to develop new protocols to determine whether an individual meets the definition of “sexually violent predator.”
Judge Shaw agreed to find Martinez unrestorably incompetent and to send the case on a civil track, although the only way the case wouldn’t loop back into criminal court is if Martinez is found to be a sexually violent predator.
The drive to get Martinez declared a sexual violent predator will first involve the Department of Corrections’ Commitment Review Team, which Green said is a paper-only review of the case and the defendant’s history. The team assigns points to each answer and tallies them to arrive at a “yes” or “no” recommendation on committing the defendant, a decision they must reach within 120 days.
If the team recommends involuntary commitment, the case goes to the state’s attorney general for review. If the attorney general agrees with the team, the case goes to a civil trial — with the attorney general’s office as prosecutors — in Williamsburg-James City County Circuit Court. If the civil trial judge rules Martinez is a sexually violent predator, he would be indefinitely committed. If not, the matter would go back the criminal side of Williamsburg-James City County Circuit Court.
Likewise, if team recommends Martinez is a sexually violent predator and the attorney general disagrees, the case would go back to the criminal division of Williamsburg-James City County Circuit Court to determine the case’s standing.
If the team does not find Martinez is a sexually violent predator, the case heads back to Williamsburg-James City County Circuit Court’s criminal division.