Dad fears accused killer will go free

JAMES CITY COUNTY, Va. (WAVY) - The deaf, mute, illegal immigrant arrested five years ago for allegedly raping and murdering a 16-year-old girl could possibly be set free without ever standing trial.

Oswaldo Martinez, 36, from El Salvador, is not able to speak, hear, read or write. Prosecutors said Tuesday that if the state is not able to teach the accused killer sufficient sign language so that he can communicate with his attorneys and stand trial, it is possible the judge would be unable to figure out what to do with Martinez, except set him free.

Martinez was charged in February 2005 with Capital Murder. Police said his DNA matched evidence from the crime scene where Brittany Binger's body was found the month before, at the grassy entrance to Whispering Pines Mobile Home Park where she lived.

There has been no trial because the judge ruled five years ago that Martinez was not capable of assisting in his own defense, which is a right guaranteed by the Constitution, according to prosecutors. James City County Commonwealth's Attorney Nate Green said his office has been working since 2005 to provide Martinez, who is being held in Central State Hospital, with lessons in sign language.

"This is beyond unusual," said Green, who has been trying to navigate unchartered waters with this case. He said there are very few cases like this in the entire country. "For the past five years we have been trying to provide him with the skills, the tools he needs to learn sign language so that he can communicate with his attorneys," said Green. The prosecutor said that is the only way Martinez will be ruled competent to stand trial.

Binger's father, Jim, said on Tuesday that this long wait for justice has been unbearable. "It's been a nightmare. Most of the time I don't sleep," he said with tears welling up in his eyes. "You know, I go once a week out to visit her in the cemetery and I wish I could go out there one day and say, 'Brittany, we finally took care of this.'"

Three months from now a James City County Circuit Court judge will decide if Martinez has finally learned enough sign language to stand trial. If not, the judge could decide the accused killer will never know enough sign language to communicate sufficiently.

"The judge could decide this is as good as it's going to get so it does not make sense to keep sending him back to Central State Hospital because he will never obtain the adequate amount of communication skills," said Green. "In all likelihood it would mean that (Martinez) would be released from custody because the Commonwealth is not able to make him ready to stand trial."

If the judge rules Martinez be released from incarceration, Green vowed that his office would immediately alert immigration officials that the illegal immigrant was about to be set free. Martinez would likely be deported back to El Salvador.

Brittany's father said that is a prospect that terrifies him. "My goal right now in life is to make sure this man stays in jail for the rest of his life and never hurts another child again."

The competency hearing is set for September 16.