For now, deaf-mute beats trial

From: Daily Press, VA - Sep 30, 2005

A judge rules that an illegal immigrant from El Salvador is incompetent to be tried in the rape and slaying of a James City County teen.

BY KEITH RUSHING
247-7870
September 30, 2005

JAMES CITY -- A judge found Oswaldo Martinez incompetent to stand trial in the rape and killing of a 16-year-old James City County girl Thursday after defense and prosecution experts said he lacked the communication skills to assist in his own defense.

Williamsburg-James City Circuit Judge Samuel T. Powell III directed the state's commissioner of health to have Martinez treated for his hearing and language deficiencies for at least six months.

Powell said he would assess Martinez's progress at an April 5 hearing and reconsider whether he is competent for trial.

In February, James City County police charged Martinez with capital murder, rape and sodomy several weeks after Brittany Binger's body was found under a tree near Whispering Pines Mobile Home Court, not far from where Martinez lived.

Martinez is a deaf-mute illegal immigrant from El Salvador who, experts said Thursday, has had no schooling or sign-language instruction.

After police found Brittany's body, they discovered that Martinez's image was captured on a store videotape where he'd taken a juice bottle that was similar to a bottle found at the crime scene. Martinez's DNA matched DNA found on that bottle. His DNA also matched DNA taken from Brittany's body and DNA under her fingernails.

Martinez is being held at Central State Hospital and was wearing a hearing aid on his right ear in the courtroom Thursday. His attorneys told Powell they would like him to be placed at Western State Hospital, where he could be immersed in sign-language instruction.

Before Powell determined Martinez was incompetent, defense attorneys and Williamsburg-James City Commonwealth's Attorney Mike McGinty questioned experts who tested Martinez's communication skills in recent months.

"Right now his words are at a 1- to 2-year-old level," said Carolyn Corbett, a Gallaudet University psychologist who specializes in communication with the deaf.

Corbett, a defense expert, said when she and a team from Gallaudet tested Martinez at the Virginia Peninsula Regional Jail, he didn't show an understanding of words they tried to communicate orally or any ability to use American Sign Language.

"He mouthed Oswaldo, Ow, Mama and Papa," said Corbett, adding that he seemed only to be able to say a few words.

Although Martinez used hand gestures for certain objects, Corbett said, he didn't show any ability to understand concepts or link a series of drawings that conveyed a story.

"He didn't see relationships," Corbett said. Martinez didn't have a sign to communicate the word "future," she said.

But Corbett said Martinez did convey a story about being involved in an accident in El Salvador when a truck rolled over and he hurt his back. He used the word "ow," she said in referring to the back injury he described.

Martinez, who wore a black T-shirt over a long-sleeved white shirt with tan pants, often looked down or to the side during proceedings Thursday. Corbett said Martinez could spell his first name slowly in capital letters and knew his age. But he didn't recognize his last name.

When asked about his competency, Corbett said: "Mr. Martinez didn't understand the role of his attorney. He would not be able to tell his own story. He would not be able to help his attorney with things that need to be clarified."

U.S. law forbids trials of defendants who can't communicate effectively enough to participate in their own defense.

McGinty questioned the degree of Martinez's impairments, asking Corbett if she would be surprised to know that Martinez was able to use a calendar and write down his age.

"Would it surprise you if he wrote down $60 and the sign for money?" McGinty asked. Corbett said that she would be surprised but that she was aware that Martinez could use hand gestures to demonstrate paying money.

But she said, "When we asked him why he was in jail, he was not able to understand it. It's not clear to me that he understands why is here today."

McGinty asked if Corbett was aware of the progress Martinez had made in learning signs. Corbett said that she did know about it and that she and other experts taught him some signs when they tested him.

Western State Hospital psychologist Barbara Haskins, a prosecution expert, said she might be able to communicate with Martinez about Thursday's hearing when he has had more instruction. But she said it would be difficult to get him to understand the difference between a court hearing and a trial.

"We would have to help him understand that he may be here again and it won't be to return to a hospital but to a prison or to be executed," she said.

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