Wednesday, October 4, 2023

Inside Oswaldo: 13 years and no trial — Can ICE deport an undocumented immigrant accused of rape, murder?

Oswaldo Martinez (WYDaily/Courtesy VPRJ)
Oswaldo Martinez (WYDaily/Courtesy VPRJ)

Editor’s note: This is the first installment of a two-part series analyzing the case of Oswaldo Martinez, a 48-year-old deaf-mute undocumented immigrant accused of killing a 16-year-old girl in James City County in 2005.

Part two delves into the complexity of restoring a defendant to competency when they cannot fully speak or understand any language. The stories published ahead of an Oct. 31 hearing in the Supreme Court of Virginia, where Martinez’s attorney is challenging his continued, indefinite detention.

Read part two here.

It’s been nearly 14 years since 16-year-old Brittany Binger was found raped and murdered on the side of the road in James City County.

For nearly as long, prosecutors have had a suspect: A 47-year-old deaf-mute undocumented immigrant from El Salvador, Oswaldo Martinez.

An unusual case, Martinez has been in state custody receiving treatment for more than a decade. He is not considered competent to stand trial because he does not know any language well enough to understand the proceedings against him.

So, as U.S. Immigration and Customs Enforcement cracks down on deportation of undocumented immigrants under the Trump Administration, how does immigration policy factor into the Martinez case?

ICE has the power to deport an undocumented immigrant at any time — even if they’re accused of a crime in the United States — but policy discourages ousting criminal defendants before their case goes to trial or they serve their sentence.

With the serious nature of the capital charges against him, both local prosecutors and immigration policy experts say it’s very unlikely Martinez will be deported before his trial.

Even if the trial never comes.

The case at hand

Martinez was arrested shortly after Binger’s body was found on the side of the road in the Grove area of James City County on Jan. 3, 2005.

Martinez’s DNA, found on a beer bottle from a local bar he frequented, matched DNA found on a bottle of juice located at the scene. He is charged with capital rape and capital murder, according to court papers.

Brittany Binger (left) and Leslie Chambers, both 16, pose for a picture in October 2004. Binger was found raped and murdered about three months later on Jan. 2, 2005. (WYDaily/Courtesy Leslie Chambers)
Brittany Binger (left) and Leslie Chambers, both 16, pose for a picture in October 2004. Binger was found raped and murdered about three months later on Jan. 2, 2005. (WYDaily/Courtesy Leslie Chambers)

Since his arrest, Martinez has spent most of the last 13 years at psychiatric facilities, including Central State and Western State hospitals. There, he has been receiving specialized treatment — like sign language education — to restore him to competency.

“Yes, he can communicate in the same way you can I can play game of charades — and we could get a lot right,” Commonwealth’s Attorney Nate Green said. “The big problem is we don’t do trials like theater. We don’t act out testimony.”

Martinez’s case will appear in the Supreme Court of Virginia WednesdayHis attorney, Tim Clancy, argues that his ongoing confinement without a trial is unconstitutional. He also says the treatment to restore Martinez to competency is not medical in nature, but educational, and is not the proper interpretation of Virginia Code.

Clancy did not immediately return a request for comment on the case.


While Martinez’s immigration status does not impact Green’s prosecution of the case, Green has kept in contact with ICE in case Martinez was ever released from custody.

“I haven’t talked to immigration in a while, but it’s sort of ongoing,” Green said. “If the judge came back and said ‘I don’t believe he’s a danger to himself or others and he hasn’t met the criteria for ongoing detention, I’m going to release him,’ I wanted to make sure we have the information to call ICE and let them know he’s been released.”

Green, however, is skeptical Martinez will be deported before the case goes to trial.

Green said he would find it “extremely odd” if ICE deported a person who was in custody and accused of a serious crime, especially a capital offense.

The prosecutor said he has no influence over a defendant’s immigration status, and he normally isn’t in close contact with ICE for other criminal cases.

Immigration and Customs Enforcement. (WYDaily/Courtesy U.S. Immigration and Customs Enforcement)
Immigration and Customs Enforcement. (WYDaily/Courtesy U.S. Immigration and Customs Enforcement)

Power of ICE

Experts say federal immigration policies allow any undocumented immigrant to be deported at any time.

“Technically speaking, once he’s an unauthorized immigrant, he is by law deportable, right?” said Randy Capps, director of research for U.S. Programs at the Migration Policy Institute. “The question then becomes ‘Is he a target for prosecutorial discretion by ICE?’”

Prosecutorial discretion is governed by policies set by the presidential administration. It instructs ICE officers, attorneys and immigration judges how to enforce immigration law, and who to prioritize for deportation.

Under President Donald Trump, undocumented immigrants convicted of any crime, no matter how minor, are prioritized for deportation, Capps said. Those accused of crimes, but not necessarily convicted, are also now prioritized by ICE.

In the Obama-era, priorities for deportation were different, focusing more on undocumented immigrants convicted of serious crimes, Capps said.

An ICE spokeswoman said ICE officials have also been unable to verify Martinez’s “alienage or potential for removability” because he cannot communicate.

For now, an ongoing case with serious allegations like Martinez’s will likely be left alone by immigration officials.

“Judges and immigration attorneys say ICE should exercise caution when dealing with active criminal cases,” Capps said, referring to an ICE memo from August 2017. “That means not short-circuiting a trial process or a prison sentence.”

Sarah Fearing
Sarah Fearing
Sarah Fearing is the Assistant Editor at WYDaily. Sarah was born in the state of Maine, grew up along the coast, and attended college at the University of Maine at Orono. Sarah left Maine in October 2015 when she was offered a job at a newspaper in West Point, Va. Courts, crime, public safety and civil rights are among Sarah’s favorite topics to cover. She currently covers those topics in Williamsburg, James City County and York County. Sarah has been recognized by other news organizations, state agencies and civic groups for her coverage of a failing fire-rescue system, an aging agriculture industry and lack of oversight in horse rescue groups. In her free time, Sarah enjoys lazing around with her two cats, Salazar and Ruth, drinking copious amounts of coffee and driving places in her white truck.

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