A 12-year-old case against a deaf-mute illegal immigrant accused of murdering a 16-year-old girl in James City County is now ripe for an appeal, and will likely head to the Virginia Supreme Court.
Oswaldo Elias Martinez, 47, from El Salvador, appeared in the Williamsburg-James City County Circuit Court Thursday afternoon for a check status hearing, during which his attorney was able to clear one last hurdle to appeal Martinez’s continued commitment in a psychiatric hospital.
The case has not gone to trial yet – and may never – but Martinez, who cannot speak any language, has been held at state hospitals receiving treatment.
The goal of treatment: to restore Martinez to competency for trial by teaching him how to communicate.
Martinez is charged with capital rape and capital murder in the 2005 death of 16-year-old Brittany Binger. Although a person accused of a felony can be released from custody if the case does not go to trial within five years of the alleged offense, capital crimes do not qualify under that law.
A court order and accompanying objection prepared by defense attorney Tim Clancy Thursday argues that Martinez’s ongoing confinement without a trial is unconstitutional.
Martinez is now being held at Central State Hospital for continuing treatment to restore him to competency, but an April 17 document filed by Clancy said Martinez continues to be held for “treatment” he is no longer receiving after being declared “unrestorably incompetent” in 2013.
Martinez cannot speak any language, including American Sign Language, and has been in both jail and psychiatric facilities since his February 2005 arrest. He has not been able to learn enough ASL to understand the legal proceedings against him.
In court Thursday, an interpreter used sign language to describe the proceedings to the 47-year-old. A hearing aid could be seen in Martinez’s right ear.
Clancy’s objection, filed Thursday, references an Aug. 23 opinion letter written by Judge William H. Shaw III.
Shaw wrote the opinion in response to a motion made by Clancy asking the judge to reconsider Martinez’s continued commitment. In the letter, Shaw denies the motion, stating Martinez’s right to equal protection under the law has not been denied, because he is able to petition his continued commitment to the Virginia Supreme Court.
Clancy’s objection lays out a different argument. Clancy states Virginia Code does not allow a commitment appeal to the Supreme Court in a capital case such as Martinez’s.
For over a decade, Martinez has hung in the balance, not competent to stand trial, but not able to walk free.
Now, Martinez will appeal Shaw’s order denying a reconsideration of commitment to the Virginia Supreme Court. The appeal must be filed within 30 days.
“We will continue to have the six month reviews, but in the near future I’m confident this case will also be placed on a track that will end with the higher courts reviewing Judge’s Shaw’s decision to continue to hold Mr. Martinez,” Commonwealth’s Attorney Nate Green wrote in an email Thursday.
“This Defendant has had no opportunity over the past twelve years to have any other judge or justice opine as to the correctness of this Court’s interpretation of Virginia Code … [whether] the continued detention of the Defendant without any attempts at all to ‘treat’ (in reality educate) him is permitted,” an April 14 defense document states.
The order denying the motion Thursday afternoon was one of three prepared by Clancy.
The other order, which was granted by Shaw, would take 25 exhibits from hearings over the last twelve years and add them to the case’s public record. Some documents were already part of the record, some were referenced in court and others had been sealed, Clancy said.
Clancy said in court the order would complete the record, aiding them in the appeal to the supreme court.
Clancy said putting the documents in the record was also approved by Green, and they added them “with an abundance of caution.”
The third order arranged Martinez’s continued treatment and commitment at Central State Hospital. A Central State doctor wrote in an Oct. 26 letter that Martinez was still not competent to understand the proceedings in court.
Martinez is scheduled to appear in the Williamsburg-James City County Circuit Court again at 1 p.m. April 26.