Deaf Undocumented Immigrant Without Language Accused of 2005 Rape and Murder: No Trial

March 14, 2017



 I read an article in the Washington Post about a Deaf man, an undocumented immigrant from El Salvador and without any language ability, who was accused of raping and murdering a 16-year old girl in Virginia — 12 years ago. His name is Oswaldo Martinez (33 at the time), the girl name is Brittany Binger.  


The sign for El Salvador is this. [“E” on left shoulder, then move the hand to make a “S” on the right hip]


This happened in January 2005. Brittany was walking on a road towards her home, which was in a mobile home community when the attack happened. Her body was found the next morning, jeans pulled down, her shoes off — in a scene that showed clear signs of rape, struggle, and murder by strangulation.


There was a fruit drink near her body. Police tracked the lot # on it to a nearby store, and security video showed the Deaf man, Oswaldo buying it around the same time of the girl’s murder. The DNA from the semen in the body and skin under the girl's fingernails matched with Oswaldo. 


He was arrested and charged with capital murder, and police thought it was an easy case to convict him with all the evidence. 


But Oswaldo has not yet been in a trial — because in 2005, a judge declared him to be unfit for court, determining that he does not understand what is going on in the courtroom and is unable to assist/communicate with his defense lawyer. 


He has been placed in alternating state/mental health hospitals for the past 12 years — one in Staunton and another in Richmond. He is still in custody, now 45 years old. 


Various psychiatrists and ASL teachers, even a psychologist from Gallaudet University — have attempted to teach him ASL and help him understand what a trial is, sometimes using mock trials, but Oswaldo was not interested to learn or understand it. 


A psychiatrist said he made gestures and drawings to describe his journey to America — describing railroad tracks, a boat, and an airplane — but nothing more advanced than that. 


He has two brothers, also from El Salvador, who were in the U.S. with valid work permits and lived in the same mobile home community as the girl. 


They said Oswaldo showed up 2004 unexpectedly to live with them — and apparently Oswaldo left his wife and two sons in El Salvador. 


A brother said they kicked him out to live in a shed by the mobile home with a mattress, power cord, space heater, and a camp stove. That’s where he lived for a year leading to the murder — working as a day laborer and often going to a bar at night. 


His defense lawyer said he can’t describe what what he did the night of the murder, due to communication issues. In 2013, a judge declared him “unrestorably incompetent.” Virginia law allows a murder suspect to be locked up without limitation without a trial while getting treatment. 


Virginia does have a legal process to commit an incompetent person for an unlimited period, but the state attorney general declined to start the proceeding in 2014, saying he does not meet the criteria because he is not a convicted sexual predator and has not been diagnosed as either psychotic or severely intellectually disabled. So Oswaldo is in "limbo."


His lawyer says this is unconstitutional and that the law was written without any expectation of someone like Oswaldo. He is still fighting it in court. 


The prosecutor said it is frustrating but he is following the law to keep Oswaldo locked up. He said he could dismiss the case and ask immigration officials to deport him to El Salvador, but that would require a “removal hearing” in immigration court, but he is not competent to undergo a court hearing. But the prosecutor said deporting him would not be justice. 


The girl’s father is frustrating and said the court process is crazy and unreal. He went to at least 20 court hearings and from watching him in the courtroom, he said he thinks Oswaldo can undergo trial. He also said he hopes Oswaldo brutally dies in jail. 


Oswaldo is still in a state hospital and now there’s now the court challenge on whether it is constitutional or not to keep him there. A very complicated situation all around. 



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