Deaf and mute illegal immigrant, Oswaldo Martinez was charged with the rape and murder of 16 year old Brittany Binger, but is unable to stand trial.

El Salvador born illegal immigrant, Oswaldo Martinez, 45, was charged with the rape and murder of 16 year old Brittany Binger, who he attacked and strangled while walking on a winter night along a country road called Pocahontas Trail in James City County, Viriginia. However, back in early 2005, a judge had determined Martinez to be “unrestorably incompetent” to stand trial because the man cannot read, write or speak, and is therefore, unable to defend himself. Martinez communicates mainly through grunts and primitive drawings.

Authorities found Martinez’s semen in the victim and slivers of his scratched off skin under her fingernails, which allowed for DNA evidence to ultimately link the man to the crime, along with a three quarters full 20 ounce bottle of Minute Maid Strawberry Passion found near the body. A nearby convenience store, Miller Mart, caught Martinez on camera buying the product just prior to the murder. He was arrested seven weeks later, on February 18th, 2005. What would have normally been a “a slam dunk”, as one investigator indicated, however, unfortunately turned out to be much more complicated, even if experts say he is not psychotic or severely intellectually impaired.

Martinez entered the country just a year before Binger was strangled to death. He is currently being held at a secure state mental hospital, and his attorney, Timothy Clancy, is pushing for the case to be dismissed due to violations regarding his client’s right to due process, equal protection under the law and a speedy trial despite his limitations.

However Commonwealth’s Attorney, Nathan Green, the prosecutor in the case, insists there is a provision which allows for Martinez to be held without limitation when charged with the capital murder crime. Green, who has declined deportation of Martinez, saying “justice would not be served” if he was allowed to return to his home country, further explains that the United States Immigration and Customs Enforcement (ICE) has so far shown no interest in giving Martinez the boot. “ICE has been unable to verify his alienage or potential for removability”, a representative confirmed. Green states the law cites criminals charged can be held “without limitation” while “medically appropriate” treatment is sought.

Clancy has fired back that the “without limitation” provision is unconstitutional and should be thrown out, allowing the case to be dismissed altogether. “I’ve represented a number of capital defendants in my time,” Clancy, who has been practicing law for 30 years, stated. “This case by far is the most unusual I’ve had — completely unique.”

The medical center staff has attempted to teach Martinez sign language without success. They don’t believe they’ll ever be able to teach the man, as experts indicate he would have had to be taught at a much younger age in order to grasp the language. A psychiatrist has also watched as Martinez was subjected to mock trials designed to show him how a real case would play out, noting that the man would “saunter into the bathroom” once realizing what was going on. The possibility of Martinez one day being set free is a very real threat.

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Twelve years after his arrest, accused murderer remains incompetent for trial because he can’t talk

Deaf, mute and accused of murder, an undocumented immigrant has been in legal limbo for 12 years