'Unspeakable justice': the Oswaldo Martinez case and the failure of the legal system to adequately provide for incompetent defendants.

• Author: Mickelson, Jamie

INTRODUCTION

On January 3, 2005, a man in James City County, Virginia, was leaving for work in the early hours of the morning. (2) He noticed what appeared to be a body lying on the side of the road. (3) He called the police, who discovered the body of sixteen-year-old Brittany Binger. She had been attacked, raped, and strangled to death on January 2. (4) Binger's body was found in a position that made it almost appear as if she had been posed: her arms were stretched out to each side, making a cross, and her pants were partially pulled down. (5) The police concluded that her assailant attacked her "from behind, covering her mouth with one hand while cutting off her air supply with the other." (6) Her assailant raped Binger and left her for dead, leaving with some of her possessions. (7)

The investigation began immediately, and important evidence was gathered in the first two days. The scene contained valuable clues: semen found inside Binger's body, DNA under her fingernails, and a juice bottle left next to her body which contained the same DNA. (8) A tracking dog was brought in to follow the killer's scent. The dog led police first to a nearby convenience store, from which police obtained a security tape, and then to a local bar, and even to a specific booth. (9) The bartender, when questioned, knew only that there was a "Mexican" who often sat there. (10) Police tracked down the man about whom the bartender was talking and found Oswaldo Martinez. (11) Police took a picture of Martinez and added his picture to the growing list of suspects. (12) The original suspect list was enormous. Police obtained DNA samples from nineteen different men, none of which matched the DNA taken from the body. (13)

A few weeks into the investigation, police officers, who initially had trouble viewing the surveillance tape from the convenience store because it was encoded, were finally able to view the tape. (14) The first thing they noticed was the same man whom they had found in the bar, Oswaldo Martinez, buying a bottle of juice that exactly matched the bottle found next to the body. (15) Police then noticed that the picture of Martinez, which was taken during the investigation and only two days after the attack, showed a long scratch on the left side of his face. (16) Brittany Binger had skin under her fingernails. (17) Nonuniformed police officers then went back to the local bar, waited while Martinez drank a beer, and took the empty bottle when he left. They swabbed DNA from the bottle and sent it to the lab for testing. (18) A few days later, the results came back. The DNA from the beer bottle was the same DNA that had been taken from Brittany Binger's body. (19)

Police then arrested Oswaldo Martinez, a thirty-three-year-old illegal immigrant from El Salvador. (20) This would seem to be an easy case for the prosecution: "[a]n outrageous crime and an obvious suspect." (21) Martinez was indicted for the robbery, rape, and murder of Brittany Binger on May 19, 2005. (22) The evidence has been described as "overwhelming' against Martinez.

Oswaldo Martinez is, however, an illiterate deaf-mute with virtually no communication skills. (23) It is likely that he has been deaf since birth or shortly thereafter, (24) He knows very little sign language and does not even seem to have many "home signs." (25) Police used his brother when trying to interrogate Martinez, and found that even family members have surprisingly little ability to communicate with him. Martinez has survived since he arrived from El Salvador by completing various labor jobs, usually learning what to do after having a supervisor point to other workers who were performing similar tasks, and imitating their behavior. (26)

Once Martinez had been formally charged, his attorneys quickly objected to the continuation of the case, based on the defendant's inability to communicate with them, (27) and argued that he was not competent to stand trial. A competency hearing was held on September 29, 2005. The prosecution, although not arguing that Martinez was competent in his present state, did present a strong case that he both understands and can communicate more than it may at first appear. (28) For example, the prosecution noted that while being interrogated, Martinez recognized a picture of Binger, and subsequently imitated sexual acts using anatomic dolls. (29) He also wrote down "$60" in relation to the dolls, thus implying that he had paid Binger for sex. (30) This admission has even been called a confession on Martinez's part. (31) Despite the prosecution's arguments, at the conclusion of the hearing a James City County judge found Martinez incompetent to stand trial because of his inability to communicate with his attorneys. (32) Under Virginia law, he has to be reevaluated every six months to determine whether he remains incompetent. (33) In April 2006, Martinez had another competency hearing and was again found incompetent. (34) His attorney stated that his client had learned approximately 150 signs, but the clinical psychologist who is working with Martinez testified that he may never learn enough to be found competent. (35) He was reevaluated, and again found incompetent, in an October 2006 competency hearing. During this hearing, his psychologists reported that Martinez is making "great progress" but that he remains incompetent to stand trial. (36) Martinez's next competency hearing is scheduled for May 2007. (37)

In the meantime, Martinez has been fitted with a hearing aide, and he has been sent to Western State Hospital in Staunton, Virginia, to undergo a rigorous language-immersion program designed to teach him to communicate--either by spoken word or by formal sign language. (38) Martinez's cooperation in learning to communicate may have a good deal to do with how much he does in fact understand about his situation. As a friend of Binger's commented, "who's to say he wants to learn how do to it? Because he knows--I know he [has] to know up in his head that, once he learns, he [is] going to die. And that's all there is to it." (39)

Understandably, the community is outraged that this suspected killer might never face a jury. (40) At the same time, Martinez finds himself in an interesting and complicated legal situation; one that, this Note will argue, the legal system is unprepared to handle. (41) Martinez cannot be held indefinitely, as this Note will discuss more thoroughly, nor can he be civilly committed because he does not have a mental illness, as required by the Virginia civil commitment statute. (42) He thus finds himself in "legal limbo" (43) where the charges against him cannot be resolved.

A defendant like Martinez who is found to be incompetent to stand trial not because of a mental disorder but because of a physical inability to communicate has been termed "linguistically incompetent." (44) While this is not a common disability, it is more common than one might imagine. (45) Regardless of what happens at Martinez's May 2007 hearing, therefore, his case is illustrative of serious gaps in the present judicial system in dealing with linguistically incompetent defendants, not only in Virginia, but also across the country. The Martinez case will be used throughout this Note to illustrate the gaps in the current law, to understand how those gaps affect defendants, and to examine what needs to be done to fill the gaps.

Part I of this Note will discuss the case of Donald Lang, a case that is very similar to Martinez's, in order to examine the difficulties involved in a case with a defendant who cannot communicate. Part II will analyze Supreme Court decisions in this area and the ethical and legal implications of requiring Martinez to learn to communicate for the purpose of having him face the death penalty for his alleged crime. Part III will analyze the current standards defendants must meet in order to be found competent to stand trial and the gaps those standards leave regarding linguistically incompetent defendants. Part IV will discuss what can be done with Martinez and with other defendants like him. Finally, this Note will conclude by discussing the failure of the legal system to account for defendants who cannot communicate and will offer suggestions for what can be done with future cases like Martinez.

1. THE "DUMMY": (46) THE STORY OF DONALD LANG

   Donald Lang's case is remarkably similar to Martinez's story. (47) Lang's tale is one of an illiterate deaf-mute linked by circumstantial evidence to the brutal killing of a prostitute in the late 1960s. (48) Lang, like Martinez, knew only a few signs and was virtually unable to communicate anything other than his immediate physical needs. (49) Like Martinez, he was found incompetent to stand trial and ordered to a treatment center for the purpose of teaching him how to communicate. (50)

   Lang's case provides a helpful illustration of the legal system's failure to account for defendants like Martinez and Lang, who are not competent because of their inability to communicate, but who do not suffer from any type of mental deficiency. Lang's case also provides insight into what could potentially happen in Martinez's case, and into the long and difficult legal battle which is likely to ensue. (51)

   Lang's case is especially interesting because Lang was actually tried while incompetent. (52) When it became apparent that Lang would not be able to learn enough to communicate with his attorneys at any time in the near future, Lang's attorney, Lowell Myers, asked the court to take the case to trial, stating that he was waiving the defendant's right not to be tried while incompetent. (53) The court refused to grant this order, leading one commentator to note that "[the law] was a neat trap, a Catch-22 of jurisprudence.... [E]ven if the defendant was innocent, he had no right to prove it because he was incompetent to stand trial." (54) In the effort to protect his due process rights, therefore, the state...