With an interpreter standing in front of him, Oswaldo Martinez was still found to be incompetent for trial at a semi-annual review on Tuesday.
Martinez, a 47-year-old deaf-mute undocumented immigrant from El Salvador, is accused of raping and killing 16-year-old Brittany Binger on Jan. 2, 2005 in James City County.
He has attended competency hearings every six months for the past 13 years but the reviews in the past have proven he remains unable to stand trial because he cannot understand enough information about his case and court proceedings.
In about a seven-minute span, Tuesday’s review provided the same result.
Part of the issue is that Martinez’s communications skills are limited as a result of a severe hearing loss in both ears, which creates difficulties in both expressing language and understanding it, according to 2005 court documents.
During the hearing Tuesday, Commonwealth’s Attorney Nate Green presented Judge William H. Shaw with the most recent competency report from Nov. 15.
The reports come from Central State Hospital, where Martinez is currently in custody and where court documents show staff have attempted to restore competency through various efforts such as a cochlear implant, mock courtroom classes and teaching American Sign Language.
But Martinez has not been able to learn enough ASL to understand the legal proceedings against him, Green has said at previous court hearings.
After 13 years, none of these methods have appeared to have made any improvement and a 2015 assessment found Martinez “unrestorably incompetent.”
Competency restoration means a defendant will receive continued treatment for additional six-month periods without limitation, then complete an evaluation at the end of each period to determine if the defendant remains incompetent or not, according to court documents.
During these efforts, Martinez remains incompetent for trial but because of the nature of his offenses he is not able to be released.
A hearing in the Supreme Court of Virginia on Oct. 31 assessed whether Martinez’s holding is unconstitutional or not. Martinez’s attorney, Tim Clancy, presented an argument regarding whether the indefinite detention can be appealed civilly, even though the underlying case involves criminal charges.
Additionally, the appeal focuses jurisdiction and the civil mechanisms holding Martinez in custody as opposed to the underlying capital charges lodged against him.
Senior Assistant Attorney General Matthew Dullaghan argued that the case doesn’t have a place in the Supreme Court of Virginia and that the Williamsburg-James City County Circuit Court order holding Martinez is not a final civil judgement and it cannot be appealed in the Supreme Court of Virginia.
At the hearing Tuesday, Clancy said he noted the existing state supreme court appeal of Martinez’s continued custody in the newest order for continued treatment. Clancy argued Oct. 31 that Martinez being held for more than a decade without a trial is unconstitutional.
“The problem is, though, each six month order, one could argue it’s moved and I would have to appeal the new six-month order,” Clancy said. “So by allowing me to note the appeal on this day and this order it kind of governed that.”
Clancy said the Supreme Court does not have a set date for a decision but he hopes it will be sometime after the new year.
Until then, Martinez will be required to continue his regular six-month hearings, the next being May, 10 at 11:30 a.m.