Changes to Virginia bill provides clarifications for cases of incompetency

Oswaldo Martinez appeared in the Williamsburg-James City County Circuit Court on Nov. 27, 2018. (WYDaily/Sarah Fearing)
Oswaldo Martinez, 47, appeared in the Williamsburg-James City County Circuit Court on Nov. 27, 2018. (Southside Daily/Sarah Fearing)

Amendments to a Virginia bill from the General Assembly have been approved by the Senate Courts of Justice Committee to address questions of mental deficiency in defendants.

Bill 1231 was approved by the panel on Monday and provides clarification on the length of time an incompetent defendant may receive treatment before going to trial and the measures of treatment, according to Virginia’s Legislative Information System.

The bill would help address situations such as the one presented in the case of Oswaldo Martinez, 37, who is currently in custody charged with the rape and murder of Brittany Binger in 2005 in James City County.

Martinez’s case has created a complex legal situation because as a deaf and mute undocumented immigrant from El Salvador, Martinez does not possess the communication skills to properly understand and aide his attorney during court proceedings.

As a result, Martinez has been subjected to more than a decade of medical treatments and education attempts to try and teach him how to communicate with others. After years of bi-annual check-ups, judges have determined that Martinez is unrestorably incompetent, according to court documents filed in the case.

But this poses a challenge because Martinez is being held indefinitely without going to trial but also without being able to go free. Prior, the bill had said the defendant could be held without limitation if they have semi-annual competency reviews.

The new bill would provide clarification that an incompetent defendant in capital murder cases will not be allowed to be released unless under a court order.

The changes come after an appeal from Martinez’s lawyer which argued that Martinez’s indefinite treatment was against the law because he is presumed innocent until proven guilty.

The Supreme Court of Virginia dismissed the appeal in December 2018 stating they did not have jurisdiction over the matter and that it should be determined in a jurisdiction’s circuit court.

In that appeal, Tim Clancy, Martinez’s attorney, argued Martinez’s competency restoration efforts, such as teaching him sign language, were educational in nature and therefore were not a proper interpretation of Virginia Code.

Previously, Commonwealth’s Attorney Nate Green noted the efforts were not required to be medical in nature.

Neither Clancy nor Green were immediately available for comment.

In the bill, language has been changed to clarify it applies not only to incompetent defendants charged with capital murder, but specifically to those deemed “unrestorably incompetent.”

In addition, where the code previously stated the defendant will receive continued treatment, the bill would be changed to specify that a defendant would receive continued “medically appropriate” treatment.

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John Mangalonzo ( is the managing editor of Local Voice Media’s Virginia papers – WYDaily (Williamsburg), Southside Daily (Virginia Beach) and HNNDaily (Hampton-Newport News). Before coming to Local Voice, John was the senior content editor of The Bellingham Herald, a McClatchy newspaper in Washington state. Previously, he served as city editor/content strategist for USA Today Network newsrooms in St. George and Cedar City, Utah. John started his professional journalism career shortly after graduating from Lyceum of The Philippines University in 1990. As a rookie reporter for a national newspaper in Manila that year, John was assigned to cover four of the most dangerous cities in Metro Manila. Later that year, John was transferred to cover the Philippine National Police and Armed Forces of the Philippines. He spent the latter part of 1990 to early 1992 embedded with troopers in the southern Philippines as they fought with communist rebels and Muslim extremists. His U.S. journalism career includes reporting and editing stints for newspapers and other media outlets in New York City, California, Texas, Iowa, Utah, Colorado and Washington state.