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October 1, 2005

Court can hold Martinez indefinitely

From: Virginia Gazette - Williamsburg,VA,USA - Oct 1, 2005

By Amanda Kerr
The Virginia Gazette

Published October 1, 2005

JAMES CITY -- Just because Oswaldo Martinez is incompetent to stand trial doesn't mean he'll go free anytime soon, if ever.

Because Martinez is accused of a capital crime, Virginia law permits the courts to hold him indefinitely, according to James Morris, director of Forensic Facility Services for the Virginia Department of Mental Health. Had his alleged crime been a lesser offense, the state would have a limited time to attempt to restore his competency.

Martinez, a deaf-mute immigrant from El Salvador, was in Williamsburg-James City Circuit Court on Thursday to determine if he is competent to stand trial. He's accused of raping and strangling 16-year-old Brittany Binger last January near a trailer park on Pocahontas Trail.

Judge Samuel Powell III ruled that Martinez is "presently incompetent to stand trial" and recommended that the Virginia commissioner of mental health have Martinez treated for his communication deficiencies. An update on his progress is due April 15.

Morris said the state is required to make an effort to rehabilitate Martinez.

"The Code of Virginia states that if someone is found incompetent, an attempt for restoration of competency must be made," he said. "Custody of the person goes to the commissioner, who decides the best treatment site based on the patient's needs and risks."

In Martinez's case, Powell can order another six months of evaluation and treatment if the defendant is not ready for trial.

"The person being treated would would receive continued treatment for additional six-month periods, with a hearing at the completion of every period to review competency," Morris added.

Martinez was arrested in February and charged with capital murder, sodomy and rape. He was linked to the crime after DNA recovered from a juice bottle found near Binger's body matched samples of Martinez's DNA recovered from a beer bottle. The DNA also matched samples on Binger's body and under her fingernails.

During Thursday's hearing, Martinez sat silently, with his head down most of the time. He has grown a full beard, and was dressed in a black T-shirt, a long-sleeved white shirt and khaki pants. Although he has been fitted with a hearing aid, Martinez seemed oblivious to the proceedings.

Carolyn Corbett, a psychologist at Gallaudet University who specializes in communication with the deaf, testified that she didn't think Martinez has had any formal education or formal sign-language training.

Corbett, a defense expert, was part of a team from Gallaudet who evaluated Martinez at the Virginia Peninsula Regional Jail.

"He did not speak or use any aspect of his voice," Corbett said. "He did not respond to our Spanish expert or our sign-language expert.

"He did use gestures and pantomime to try to communicate," she said. "He also mouthed the words 'Oswaldo,' 'mama' and 'papa.'"

In addition, Martinez displayed no evidence of being able to read in either English or Spanish, Corbett said.

Barbara Haskins, an attending psychiatrist of mental health at Western State Hospital, agreed that Martinez has serious communication deficiencies.

Haskins, an expert witness for the defense, spent two hours attempting to communicate with Martinez during an evaluation.

"There were isolated occasions of definite understanding, where I felt I understood what he was trying to communicate," Haskins said. "But this may be a subjective interpretation of his gestures."

Haskins also expressed concern that Martinez may not understand the court process and why he is coming to court.

"Another whole challenge is getting him to understand the difference between a hearing and a trial," she said. "He needs to understand that some day he may not go back to a hospital. He may go to jail or be executed."

Although commonwealth's attorney Mike McGinty did not argue that Martinez is competent, he did present facts that suggest Martinez has a stronger grasp on communication skills than defense witnesses stated.

McGinty asked Corbett if she would be surprised to know that during a police investigation, Martinez used anatomically correct dolls to simulate intercourse after being shown a picture of Brittany Binger.

McGinty also asked, "Would it surprise you that he wrote down $60 and the sign for money?" Corbett said that she would be surprised.

Timothy Clancy, defense attorney for Martinez, told the court that he would like Martinez to be placed at Western State Hospital for his competency restoration treatment.

Western State has an extensive mental health program for the deaf that would allow Martinez to be immersed in sign-language instruction.

Copyright ©2005 The Virginia Gazette