

Brittany Binger was headed for the Whispering Pines mobile home community near Williamsburg, Va., in January 2005 when she was attacked and killed. (Timothy C. Wright/For the Washington Post)

The man who raped and strangled 16-year-old Brittany Binger left a wealth of DNA evidence at the scene. He attacked her on a long-ago winter night as she walked beside a country road called Pocahontas Trail. Authorities found his semen in the victim and slivers of his scratched-off skin under her fingernails.

Brittany Binger (Williamsburg-James City County Schools via (Newport News, Va.) Daily Press via Associated Press)

When police arrived, they saw a 20-ounce juice bottle, three-quarters full of Minute Maid Strawberry Passion, standing upright 12 feet from Brittany’s body, suggesting that the killer had carefully set it on the pavement before grabbing the girl. Detectives traced the lot number on the label to a nearby Miller Mart. And security video recorded at the convenience store around the time of the killing shows a day laborer named Oswaldo Martinez buying just such a drink, investigators said.

Seven weeks later, on Feb. 18, 2005, detectives in James City County clapped handcuffs on Martinez, then 33, a Salvadoran immigrant who had been in the United States illegally for months. After DNA tests confirmed that the semen and torn pieces of skin were his, police said, he was charged with capital murder.

“A slam dunk,” recalled one detective. “That’s what we thought.”

Twelve years later, however, the curious case of Oswaldo Elias Martinez — who has been deaf and effectively mute all his life — is a long way from being resolved.

Unable to read, write or enunciate more than a few small words, Martinez communicates mainly through pantomime, grunts and crude drawings. As a result, even though experts say he is not psychotic or severely intellectually impaired, he remains legally incompetent to stand trial because he cannot assist in his defense or understand what is happening in a courtroom.

Only a handful of such criminal cases, involving defendants who grew up bereft of language, have confronted the U.S. justice system in the past century. And at a time of heated debate about illegal immigration, with President Trump vowing to bar “bad hombres” by increasing deportations and building a wall on the nation’s southern border, the prosecution of Martinez has ground to a halt.

Oswaldo Martinez (Patti Rosenberg/(Newport News, Va.) Daily Press)

Now 45, he is housed in a secure state hospital, possibly not eligible for deportation and still presumed innocent in Brittany’s death. After trying in vain for years to teach him to communicate clearly in American Sign Language, specialists have declared that further efforts almost certainly would be useless. Experts in brain science said Martinez’s neurological window of opportunity for learning language, including fluent sign language, closed decades ago.

“I’ve represented a number of capital defendants in my time,” said his attorney, Timothy Clancy, who has been practicing law for 30 years. “This case by far is the most unusual I’ve had — completely unique.”

Clancy has asked a judge in Williamsburg to dismiss the case, arguing that Virginia, by continuing to keep Martinez behind bars, is violating his constitutional rights to a speedy trial and to due process and equal protection under the law. The legal fight over that issue, set to begin next month, is bound to be knotty and protracted, possibly wending through several state and federal courts.

But the potential looms that someday, Martinez will go free.

Evidence accumulates

Brittany Binger, as a friend described her, was “a lost kid,” sweet and sentimental by nature but downhearted and unmoored at 16, a high school dropout estranged from her divorced mother and father, unwilling or not welcome to live in either parent’s home.

In the autumn of 2004, three women whom Brittany had known for years took her in, making room for the troubled teenager in their mobile home in the Windy Hill trailer park, off Pocahontas Trail. The two-lane thoroughfare, flanked by the James and York rivers, traverses the Virginia Peninsula southeast of Richmond, including the lonesome area where the killing occurred, eight miles from the seasonal bustle of Colonial Williamsburg.

Sometimes Brittany bunked with another friend, in the neighboring Whispering Pines mobile home community. On Sunday, Jan. 2, 2005, she was headed there around 7:30 p.m., walking from Windy Hill alone in the dark, toting the purple Crown Royal whisky pouch that she used as a purse.

She made it halfway.

Two hours before dawn on Monday, a newspaper carrier found her beside Pocahontas Trail dead on her back, her legs together and arms outstretched in what detectives called “a crucifix position.” Her jeans were at her ankles, and her sneakers had come off in the struggle as she was raped and strangled.

Martinez, raised in agrarian poverty in El Salvador, also lived in Windy Hill, in a 6-by-7-foot toolshed.



Oswaldo Martinez lived in this shed in the Windy Hill trailer park, seen in 2005. (Andrea Bruce/The Washington Post)

Two of his brothers already were in the United States with valid work permits when Martinez entered the country illegally about a year before Brittany’s death, police said. They said one of the brothers, Mario Martinez, who still lives in a Windy Hill mobile home, was angry when Oswaldo Martinez, fresh from Central America, showed up unannounced, looking for a place to stay. Because his newly arrived brother had uncouth living habits, Mario Martinez told police, he soon kicked him out of the mobile home and installed him in a side-yard shed with a mattress, power cord, space heater and camp stove.

Although much about his background remains unclear, mental-health professionals and other specialists have pieced together some of Oswaldo Martinez’s history by painstakingly extracting bits of information from him and by interviewing his brothers.

Born deaf in 1971, the fourth of nine siblings, Martinez came of age during El Salvador’s 12-year civil war, attending school briefly as a child before quitting and going to work selling vegetables with his mother in a rural marketplace. As for his 5,000-mile trek to overwhelmingly white James City County, population 67,000, and his job as a day laborer, Martinez shared that story with Barbara Haskins, a state psychiatrist, not long after the killing.

“He came here and built very big houses, and he drew a picture of a big house,” Haskins told a judge. “He also drew railroad tracks and a boat and an airplane” to illustrate his journey. “He indicated he had jumped a train and also swum while coming to America. He indicated that this had gone on for a long time. He appeared to pantomime that there was no food and no money while he was on the train.”

He left his wife and two sons in El Salvador, according to authorities, who said that before 2005, Martinez had no U.S. or foreign criminal record that they know of, except a 2004 public-drunkenness arrest in the Williamsburg area.



Oswaldo Martinez spent a lot of time at Y-B’s tavern, seen in 2005. (Andrea Bruce/The Washington Post)

Martinez, 5-foot-4 and 130 pounds back then, with a ponytail and a thin mustache, spent a lot of nights in Y-B’s tavern, a beer-and-burger joint, now closed, on Pocahontas Trail near the entrance to Windy Hill. He left the bar shortly after 7:30 p.m. on the day of the killing, patrons told detectives. Police said security video shows him next door in the Miller Mart buying a 20-ounce bottle of Minute Maid Strawberry Passion juice at 7:42 p.m. That was about the time Brittany, a slender girl with shoulder-length brown hair, would have been walking near the store if she was taking her usual route to Whispering Pines, police said.

During the investigation, a bloodhound tracked a human scent from the crime scene to the juice cooler in the Miller Mart and to the booth in Y-B’s where Martinez had been sitting that evening, detectives said. They said that in addition to the matching semen and skin DNA, a close-up photograph of Martinez taken three nights after the killing shows rows of scratches on the left side of his face.

Efforts to communicate

Asked about his client’s version of events on the night Brittany was attacked, Clancy, the defense attorney, shrugged, saying, “No one can communicate with him effectively enough to know even that.”

A judge in 2005 declared Martinez unfit to take part in court proceedings, and he has not been allowed to enter a plea in the case.

To be legally competent, as the Supreme Court defines it, Martinez would need to be able to assist in his defense by communicating coherently with Clancy, and he would have to possess at least a general understanding of what was going on in the courtroom during his trial.

His language deficit appears to be the only obstacle preventing him from being called to account in the girl’s death. Mental-health professionals who have met with Martinez over the years said he shows no signs of serious psychiatric illness. As for his IQ, measured at a below-average 68, examiners said linguistic and cultural barriers often skew the results of intelligence tests. They said he is not cognitively disabled, as best as they can tell.

Hundreds of pages of evaluation reports written since 2005 tell a story of futility, detailing efforts by an array of specialists to render Martinez fluent in American Sign Language, or ASL, and to teach him the basic workings of the criminal justice system. These mental-health experts and sign-language instructors, paid by the state, initially made progress, and Martinez acquired a smattering of ASL during the early years of his confinement. But he eventually stopped learning, they said.

Files from the 2005 murder case involving Oswaldo Martinez sit on a table in the office of Commonwealth’s Attorney Nathan Green. (Timothy C. Wright/for The Washington Post)

In a 2011 progress report, psychologist Carolyn Corbett of Gallaudet University, the nation’s foremost college for deaf students, said that Martinez, after six years in custody, seemed to have only a “minimal” and “superficial” idea of how his case would be adjudicated.

Her assessment echoed a 2007 report by Haskins, the state psychiatrist, who has evaluated Martinez more than a half-dozen times at Western State Hospital in Staunton, Va., and at Central State Hospital, near Richmond, the two secure mental-health facilities where he has been housed, back and forth, for most of the past 12 years.

“We have held a variety of mock trials,” Haskins wrote. “We generally act out a crime, act out the arrest of the perpetrator and then we bring the perpetrator into our mock courtroom, which is presided over by a judge. On a few occasions, we have had a jury present as well.” She added that in these fictitious scenarios, “evidence is presented, witnesses are questioned, and the judge makes rulings.” But none of it seemed to interest Martinez.

“Typically, at the start of each mock trial, as soon as he figured out what was going on, he would saunter into the bathroom,” Haskins reported.

Four years later, in 2011, she wrote about another exercise, involving an ASL instructor named Debbie O’Berry: “Ms. O’Berry indicated she has interpreted some Perry Mason-type movies or TV shows for Mr. Martinez and they try to figure out who is the perpetrator of the crimes.” That effort also came to nothing, the psychiatrist said.

Meanwhile, the victim’s father, James Binger, was growing angry and impatient as he waited for justice.

Commonwealth’s Attorney Nathan Green (R), the top prosecutor in James City County, said he has had no contact with Brittany’s mother since he started handling the case nine years ago. But James Binger, now 53, said in an interview that he has attended at least 20 court hearings for Martinez since 2005. He called the particulars of the case “incredibly frustrating” and said the judicial process has been “crazy” and “absolutely unreal.”



Commonwealth’s Attorney Nathan Green, the top prosecutor in James City County, with the case files involving Oswaldo Martinez. “I feel a lot of frustration sometimes, but it passes quickly,” Green said. “My respect for the law outweighs my personal frustration.” (Timothy C. Wright/for The Washington Post)

Binger, a construction foreman, said that after watching Martinez in court many times through the years, he thinks that his daughter’s alleged killer is sufficiently competent to stand trial. Speaking to a TV reporter in 2014, Binger said of Martinez, “I hope you die in jail, brutally.” On the phone Monday, he said: “That’s right — that’s how I feel. But what I want done, I can’t get done.”

As for Martinez, if he has a main aspiration, it might be one that he appeared to express to Haskins when they first met, at Central State Hospital, on June 21, 2005, four months after his arrest.

Haskins told a judge: “He seemed to pantomime boat and plane and indicate he wanted to go see his children. My overall sense of what he was trying to say is — and this is my impression only, I cannot confirm it — that he hoped to have everything against him somehow go away so he could go back to El Salvador.”

A ‘critical period,’ lost

In Washington, in his office at MedStar National Rehabilitation Hospital, neurologist Alexander Dromerick was discussing a favorite topic: the human brain. “Every time I sit back and think about it, it’s a frickin’ miracle,” he said. “What the brain does is a beautiful, complex, miraculous dance — and so much of it is explainable now.”

To Dromerick and several of his colleagues, all specialists in a burgeoning aspect of brain science known as neuroplasticity, Martinez’s failure to gain proficiency in ASL is no surprise. Dromerick and his fellow experts, who have not worked with the prisoner, said that given his age and background, if Martinez succeeded in becoming fluent, it would make for an astonishing case study in linguistics.

A typical child has 70 billion to 80 billion brain cells, or neurons, in infancy, each neuron blooming with tentacles called synapses. The brain’s ability to function normally — to process and understand sensory input — begins to develop early in life, as the synapses of one neuron reach out and connect to the synapses of others.

These attachments, formed billions of times, create a vast network of neural pathways. And the pathways handle distinct jobs, transmitting specific kinds of information — visual, auditory, tactile, etc. — to appropriate parts of the brain. It’s like the Internet, but with cells.

The cerebral circuitry for processing language — whether spoken or signed — takes shape during a stretch of childhood that experts have dubbed “the critical period,” which in many cases ends before a youngster reaches school age. In this pivotal time frame, as long as a toddler is exposed to language, the brain will set up a permanent cellular pathway for it. How the language is delivered, by voice or by a formal system of gestures, does not matter.

But if a child does not absorb language by some method during the critical period, as was the case with Martinez, the circuitry will not develop, and the opportunity is lost.

“It’s a Darwinian process,” Dromerick said. “The neurons, the synapses, essentially compete with one another for connections. The ones that connect well, they survive and become part of our brains, and the ones that don’t connect will die off.”

The specialists in Martinez’s case were aware of the plasticity limitation and mentioned it in evaluation reports. They said that after Martinez gained a halting grasp of sign language during his first few years in custody, his learning plateaued, notches below the level of legal competency. Finally, in 2013, a judge declared him “unrestorably incompetent.”

Brittany Binger and Oswaldo Martinez both lived in the Windy Hill trailer park near Williamsburg. (Timothy C. Wright/for The Washington Post)

In trying to keep Martinez behind bars, Green is relying on a provision in the state’s competency statute that, in his view, allows for the suspect to be held indefinitely without a trial because of the nature of the charge against him.

A capital murder in Virginia, punishable by death or life in prison without parole, involves at least one of 15 “aggravating circumstances.” In Martinez’s case, Brittany’s rape made the killing a capital crime. A conviction would have resulted in a sentence of life without parole because Green had opted not to seek the death penalty.

If Martinez had been accused of any other offense, even non-capital first-degree murder, the charge would have been dismissed years ago, Green said. But there is a paragraph in the competency law that deals specifically with capital defendants who are unfit for trial, stating that they can be locked up “without limitation” while undergoing “medically appropriate” treatment.

Clancy, who has been representing Martinez since the week of his arrest, said in a court filing that the provision is unconstitutional. “I’m absolutely convinced that this statute was never, ever written with the expectation that someone like Oswaldo Martinez would come along,” he said in an interview.

In certain circumstances, Virginia law allows the state attorney general to begin a civil proceeding to have an incompetent defendant committed to a secure facility for an unlimited period. But the office of Attorney General Mark R. Herring (D) has declined to take such action in Martinez’s case, deciding in 2014 that he does not meet the statutory criteria for civil commitment. He is not a convicted sexual predator and has not been diagnosed as psychotic or severely intellectually disabled.

Which leaves Green and Clancy in a constitutional fight that is just beginning and amounts to this: With Martinez presumed innocent and not eligible for civil commitment, and with virtually no chance of him becoming competent, can Virginia legally continue to detain him?

“I feel a lot of frustration sometimes, but it passes quickly,” Green said. “My respect for the law outweighs my personal frustration.” In arguing that Martinez should be kept locked up while the murder case against him remains in limbo, Green said, “I’m not following my emotions with this. I’m following the law.” Yet he also said he is taking Clancy’s challenge “very seriously,” calling it a potential “test case” that could greatly affect how competency statutes are applied.

Rather than fight with Clancy, Green said, he could give up, let the case be dismissed and ask immigration officials to deport Martinez. But before authorities could legally put him on a plane to El Salvador, other lawyers said, a “removal hearing” would have to be held in an immigration court. And because Martinez is not competent to participate in such a proceeding, or to waive it, the federal government might end up responsible for his perpetual care and feeding.

The U.S. Immigration and Customs Enforcement agency has shown no eagerness to take custody of Martinez, Green said. Anyway, he said: “Deportation, to me, would be a loss. Justice would not be served by him being deported.”

Asked about the agency’s seeming lack of interest in the case, an immigration spokeswoman said in a statement, “Due to Mr. Martinez being unable to communicate, ICE has been unable to verify his alienage or potential for removability.”

Meanwhile, with the litigation over his fate scheduled to enter a new phase this spring, Martinez lives each day in his own kind of solitary confinement, oblivious to what tomorrow might hold.