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The Unspeakable
A Teen Is Raped and Killed, And a Suspect Is Charged. But the Legal Case Has Both Sides at a Loss for Words.

By Paul Duggan
Washington Post Staff Writer
Tuesday, August 2, 2005; Page C01

WILLIAMSBURG The girl, raped and strangled, had been dead for nearly 48 hours when two police officers and a dog handler burst into Y-B's tavern, led by a drooling bloodhound named Patton, the big dog sniffing frantically.
From the hound's pawing and howling, it was clear that the man they were looking for had recently spent time in the bar, a blue-collar watering hole done up in a NASCAR motif. The tavern, off a country road southeast of here, is a short walk from the trailer park entrance where 16-year-old Brittany Binger, estranged from her broken family and struggling to build a life, had been attacked and killed.
In the dim light of Y-B's, as a dozen or so late-afternoon regulars looked on, the dog circled the barroom, his nose dipping and darting at the carpet, the booths, the pool tables, the jukebox. The suspect's scent was everywhere.
The officers, Bill Gibbs and Lesa Branch, gave the startled patrons no explanation -- they just asked them to hold still while Patton did his work -- but the folks in the bar knew what the search was about.
In James City County, 160 miles south of Washington on the Virginia Peninsula, homicides don't happen often -- there are two a year, on average -- and whodunits are rarer still. In the hours since a newspaper carrier had discovered Binger's body on a roadside patch of grass, the killing had been the buzz of the tavern, a topic of nonstop beery speculation that would persist as the case grew stranger.
The search would go on for weeks -- the biggest investigation in years for the county's 73-member police force. Detectives finally made an arrest, and the chief prosecutor here said he hopes to seek the death penalty. But he knows he may not get the chance.
There may not be a trial for years. In fact, there may not be a trial at all: It's possible that the alleged killer, who remains something of a mystery even now, after five months in custody, will sit confined in legal limbo indefinitely.
Because, it turned out, the scent Patton chased into the tavern that January day had come from no ordinary suspect.

Following a Hound's Nose

In Y-B's, as she clung to the dog's leash, Margie Spencer couldn't tell whether the suspect had been in the bar before the killing or after it. But she knew he wasn't there at the moment.
Like all people, the man they were looking for shed a microscopic trail of dead skin cells with a unique odor that Patton could follow. The dog had picked up the scent at the trailer park entrance and tracked it a few hundred yards to Y-B's. If the suspect were in the bar, Patton would have homed in and then turned to Spencer, his owner, for a treat.
What the hound was hitting on instead were "scent pools" in places in the barroom where the suspect had lingered. And one of the strongest of these was on the yellow plastic booth nearest the restrooms, between a shelf of dart trophies and a life-size cardboard cutout of Dale Earnhardt Jr.
This was Tuesday, Jan. 4. Binger had been killed Sunday night, her body found on Monday. As Gibbs watched the dog sniff and paw at the booth, he recalled what Y-B's bartender, Tim Parks, had said the day before, when police were canvassing in the tavern.
Gibbs had asked Parks if he'd noticed anyone unusual in the bar Sunday evening.
Well, replied Parks, just "the Mexican guy."
"The Mexican guy," odd but seemingly harmless, had been coming in regularly, sitting alone, sipping Budweiser and staring silently. Parks knew nothing about him, not even his name. But he remembered seeing him Sunday night, drinking quietly as usual -- in the booth nearest the restrooms.
"Tim referred to him as just this Mexican guy who kept to himself all the time," Gibbs recalled. "A guy who didn't talk to anyone."

A Trail of Mystery

"The Mexican guy" isn't Mexican; he's a Salvadoran immigrant, Oswaldo Martinez, and he had just turned 33 at the time of the killing.
A day laborer then, 5-foot-4 and 130 pounds, with a thin mustache and black hair pulled into a short ponytail, he had been in the country illegally for about a year. And for weeks, before and after the Jan. 2 killing, he was a fixture in Y-B's.
"He was a lonely person, I think," said Tom Cail, 60, drinking beer one recent night with a half-dozen other denizens of the bar.
Y-B's draws a working-class crowd, many of its regulars coming from trailer parks nearby. They show up on their lunch hours and after quitting time -- women with sore hands and tired feet, men in NASCAR ball caps and old jeans, their fingernails rimmed with factory grime. They drink Bud in bottles for $2.15, drafts for $1.25, and lounge or shoot pool while the jukebox plays country-and-western.
Cail and his friends said that Martinez started showing up in November. And because he had nothing to say to people, most folks stopped wondering what his story was and just accepted him as part of the scenery. They figured he didn't speak English.
Adrift in a foreign culture, he seemed socially clueless. Women in the bar said he sometimes propositioned them by waving to get their attention, pointing to himself, then pursing his lips and making kissing sounds. They laughed him off. Mostly, he sat quietly, and on the few occasions when people tried to talk with him, he said nothing.
When he wanted a beer, he'd show waitress Carol Howard his hands, one above the other -- close together for a draft, farther apart for a bottle. If he flashed six fingers, she'd bring him a half-dozen fried dumplings. If he wanted a burger, he'd cup his hands as if he were about to bite into one.
He never acted drunk and, except for his occasional leering at women, he never got out of line in the bar, patrons said.
"For a long time, he'd just sit over there and stare," said Patricia Pratt, 37. "I got real mad at him one time for staring at me."
One December night, Pratt decided to sit down with him.
"I felt sorry for him," she said.
Although his staring had angered her at first, her attitude had softened. He had become a familiar face in Y-B's over the weeks, and a few of the regulars eventually had caught on to his problem. Pratt knew why he behaved as he did.
"I found out he was deaf."
He didn't talk because he didn't know how. He could emit some intelligible sounds, low and dense -- "Mama" and "Mario" -- but he'd never heard words strung together.
Sitting in the bar or walking the streets, he looked out at the world from a peculiar kind of solitary confinement. Even in crowds, he was isolated. He didn't know sign language and couldn't read lips -- and he was illiterate. Enveloped in silence since birth, never able to share his thoughts, to absorb or question ideas, he lived each day inside himself, a loner, learning what he could by watching other people.
It didn't take long for Pratt to grasp the extent of his disability. He could print his name in a child's scrawl. But except for crude drawings and simple hand gestures, he couldn't communicate.
"I was trying to teach him a little sign language," said Pratt, who once considered training to be an interpreter for the deaf and had read a book on the subject. "I don't know nothing but the basics: 'good boy,' 'good girl,' 'thank you,' 'you're welcome.' . . ." With Martinez, she realized the difficulty of conveying even the simplest abstract word concepts to a man as removed from language as he was.
"I didn't teach him much," she said.

A Rocky Start

Two of his brothers, Mario and Santiago, had come here before him, each with a valid work permit, Oswaldo Martinez's attorney said.
One found a job in construction, the other at a restaurant, in a part of the peninsula with a small but fast-growing Hispanic community. Bustling development in James City County (population 54,000) and a hospitality industry fueled by Busch Gardens and Colonial Williamsburg have drawn Latino workers of several nationalities -- immigrants generically labeled "Mexicans" by some in the county, which is 82 percent white.
Midway down the peninsula, Route 60 becomes Pocahontas Trail, lined with trailer parks named Country Village, Heritage, Windy Hill -- and Whispering Pines, where Binger was killed. Mario and Santiago Martinez rented trailers in Windy Hill, behind a parcel of drab storefronts that includes Y-B's, and lived there quietly with their families -- until their brother Oswaldo arrived from El Salvador.
His history is sketchy, just a few details gathered by his attorney, who said Martinez was born in 1971 and came of age amid the chaos of El Salvador's 12-year civil war. One of nine siblings, he grew up in squalor, toiling in sugar-cane fields beside his mother, who lost her husband to a grenade blast. The attorney said Martinez never attended school and, except for his name and a few small words, he can't read or write.
Asked how Oswaldo managed the journey to Virginia, Mario Martinez shrugged. "We don't know," he said, speaking briefly outside his trailer on Beckie Lane, where Oswaldo stayed. He said his newly arrived brother, who showed up by surprise, was a nuisance -- coming and going at all hours of the night, smoking cigarettes and swilling beer in the trailer.
So it was decided that Oswaldo would move out and live in a shed in the yard.
"He was okay to do it," Mario Martinez said.
The shed, resting on cinder blocks, became his little apartment, a 6-by-7-foot plywood box with a peaked ceiling seven feet high. Martinez, no stranger to hardship, found it livable. Water and electricity came from the trailer. An air conditioner cooled him and a small camp stove gave him heat. He slept on a mattress, kept his meager belongings in a pint-size dresser and showered in a tiny stall.
As for his day-labor wages, there was a country tavern close by where he could spend them.
By the end of the year, weeks after he began showing up in Y-B's, he was still just "the Mexican guy" to most people, including bartenderParks, who noticed him in the booth by the restrooms on the night of Sunday, Jan. 2.
Jo Ann Johnson, 60, and other regulars saw him in the bar then, too, in baggy jeans and a light-colored sweat shirt.
"He kept going in and out" of the tavern, Johnson recalled. "And he kept staring at me. And I told people, I said, 'I'm really getting nervous. He's just staring and staring.' . . . He seemed very fidgety. Very hyped or whatever. And he was going in and out, in and out. . . ."
Sometime before 7:40 p.m., he went out and didn't come back.
Searching for Stability
In her kitchenette that night, Brittany Binger finished her burger, downed her macaroni and cheese and got up from the table. It was almost 7:30, and she was going out.
Moments later, she pulled on her waist-length leather coat, picked up the purple fabric pouch from Crown Royal whiskey that she used as a purse and stepped out of the mobile home. She was off to visit a friend in his trailer that Sunday, walking alone in the January chill.
Two of the women she lived with, sisters Danielle Hollingsworth, 18, and Kristin Thurston, 22, watched her go, not expecting her back until morning.
She was a slender, pretty girl, sentimental by nature, tough by necessity. Her life had been 16 years of bad road. A high school dropout, daughter of a bulldozer operator and a mini-mart clerk, she was an orphan of divorce, estranged from her father, out of touch with her mother. Her dreams were simple, her friends said. She wanted a steady job and a stable home.
Late in the fall, Hollingsworth and Thurston and the sisters' mother had taken Binger in, making room for her in their mobile home in Windy Hill. It's less than a mile from there to the trailer she was headed to in Whispering Pines. A shortcut runs through the parking lot of Y-B's tavern and the convenience store beside it.
Now, in jeans and white sneakers, she walked in the dark past the bar and the mini-mart. She made it only a few hundred yards farther, to a swath of grass at the Whispering Pines entrance. And as she lay there dead that night, no one missed her; the friend didn't know she was coming.
A newspaper carrier found her two hours before dawn Monday. She was on her back, legs together, arms outstretched -- "a crucifix position," police called it. Her sneakers were off and her jacket was unsnapped. Her T-shirt was hiked up and her jeans were yanked down. An autopsy confirmed that she had been raped.
Someone had strangled her, likely from behind with an arm, while pressing his other hand over her nose and mouth, suffocating her. There was skin under her left-hand fingernails, meaning she almost certainly had scratched whoever killed her. She had died between 7:30 and 9:30 the night before.
Because her Crown Royal pouch and most of its contents were scattered along the sidewalk, police surmised that the attacker had rifled through the purse as he fled, discarding things he didn't want. Detectives bagged the belongings as evidence, along with some scattered trash, including a plastic juice bottle, which was nearly full. It was standing upright on a driveway 12 feet from the dead girl.
With all seven detectives on the police force working the case, the investigation was moving in several directions when Margie Spencer arrived Tuesday from the nearby Hampton Roads area. She and other members of a volunteer group travel frequently with their tracking dogs, aiding law enforcement agencies all over the country. Patton, 5 years old, has been training since he was a puppy.
He lives to sniff.

Narrowing the Field

"Find the man!" Spencer commanded.
At the Whispering Pines entrance that afternoon, after a police officer rubbed a small gauze pad against Binger's jacket, Spencer had held the pad to Patton's nose. The dog registered the strongest scent that wasn't Binger's. And when he heard the order, he started tracking, straining his leash, pulling Spencer behind him.
After the hound was done rooting in Y-B's that day, he followed the suspect's scent back out to the parking lot. He nosed along the ground, leading Spencer and the two police officers -- Gibbs and Branch -- past several storefronts in the faded little plaza until they came to the convenience store: Miller Mart. Patton was as frantic there as he had been in the tavern, howling to be let in, then tracking to a drink cooler, sniffing and pawing at the glass door.
So, the clues: Someone whose fresh scent was on Binger's jacket likely hung out in Y-B's, had sat in the booth by the restrooms recently, and had stopped in Miller Mart for something to drink.
Lots of people fit that bill -- many bar patrons had sat in that booth. Detectives decided to start by checking out the oddest man known to have sat there lately.
On Wednesday night, one of the investigators, Pat Murray, saw "the Mexican guy" standing near Y-B's and asked him for identification. At first, Murray thought the man didn't speak English, but then he realized what the problem was. After the detective managed to get across what he wanted, the man motioned for him to follow, and they walked a short distance into the Windy Hill park behind the bar.
When they reached a mobile home on Beckie Lane -- just a block from where the victim had been staying -- the detective waited as the man rummaged inside a shed. He came out with a government-issued ID card from El Salvador bearing his date of birth and name: Oswaldo Elias Martinez.
Murray jotted down the particulars. And before he left, he did one other thing: Standing in the dark, he took out a camera and snapped a photo of Martinez's face.
Detectives asked around about him and kept his name in mind -- one of many names -- as they hunted for Binger's killer through January and into February, investigating ex-boyfriends, estranged relatives, registered sex offenders and others, and searching in vain for drug or gang connections serious enough to result in homicide.
Meanwhile, in Y-B's, Martinez found a social life.
It began one night not long after the killing, when Carol Howard wanted to mop near the man's booth and gestured for him to get up. "So we waved to him, you know, 'C'mon, sit with us,' " said Joan Specht, 54, who knew by then that he was deaf.
He seemed uncomfortable at first, sitting with the others like an appendage, his eyes darting around the table, watching lips move. Specht, who carries a tattered little notebook, printed "Your name" and showed it to him. He scrawled, "Oswaldo Martinez," which was pretty much all he could read or write. And then he just sat there, smiling occasionally at the conversations he couldn't hear.
As weeks passed, though, he loosened up, and the regulars could tell he enjoyed their company. He'd sit with one small group or another and buy a round when his turn came.
"A very nice guy, very nice," said Tom Cail. "Oswaldo had a lot of friends in here after he started meeting all of us."

A Key Clue Emerges

Six weeks after the killing, the boss called a meeting.
With the investigation coming up empty, Maj. Stan Stout assembled his detectives in their squad room, along with patrol officers who worked the stretch of Pocahontas Trail where the girl had been killed. They were going to watch a DVD.
Before Binger's death, the company that owns Miller Mart had installed digital security cameras in the store, but no one working in the mini-mart or for the county police could figure out how to download images from the system.
After a series of delays, Stout had finally gotten the video on a disc. Now, in the squad room, looking at images from Jan. 2 on a PowerPoint screen, the officers studied the faces of Miller Mart customers in the hours before Binger was attacked. The detectives wanted names for the faces -- these were people in the vicinity of a homicide. More than a dozen patrol officers peered at the screen, searching for people they knew from their beats.
Afternoon became evening on the DVD as hours passed in the squad room. The officers watched customers come and go, the digital images crisp and in color. Then the video time stamp reached 7:42 p.m.
Stout was sipping a Coke, leaning on a desk, when up on the screen a man walked into Miller Mart in baggy jeans and a light-colored sweat shirt and headed for a drink case. In the instant before anyone spoke, the detectives leaned toward the video, riveted by what they saw.
Then someone said, "That's that Spanish guy from the bar."
Freeze that.
Stout, on his feet, turned to Gibbs, and Gibbs, staring at the screen, said yeah -- that's the cooler the dog liked.
They watched, amazed.
"What the [expletive] is that in his hand?" Stout asked.
Gibbs put the video on a smaller screen and enhanced it, focusing on a 20-ounce bottle the man had taken from the cooler. Detectives craned in, reading the label: Minute Maid, Strawberry Passion.
Stout sent Sgt. Jeff Vellines to the property room to look in an evidence box, then turned his attention back to the video.
A different camera showed the man in baggy jeans pacing in front of the store with his drink -- about the time Binger would have been cutting through the parking lot. To the detectives, he seemed anxious, stirred up -- hyped.
Then Vellines reported back: Item No. 4 -- the plastic bottle standing upright near the body, almost full -- was Minute Maid.
Strawberry Passion, 20 ounce.

The Stumbling Block

Stout and his detectives, and the commonwealth's attorney here, Michael E. McGinty, have charged Martinez with capital murder. They allege that he saw Binger, a stranger, in the parking lot and followed her in the dark to the Whispering Pines entrance, where he put down his juice bottle, jumped her from behind, raped her, killed her and ran away.
And they said they can prove it -- based on what they found out in the hectic few days after the detectives saw the Miller Mart video.
But they may not get the chance.
"I've never had a case like it," said Edward W. Webb, sitting with Martinez's file in Virginia's Office of the Capital Defender in Norfolk. Webb said he doesn't know what his client did or didn't do along Pocahontas Trail that night seven months ago. He and Martinez, of course, aren't able to discuss it.
Which is the problem.
An accused criminal who can't assist in his own defense -- who can't communicate in any meaningful way with his attorney -- is legally incompetent to stand trial. The U.S. Supreme Court says so. A vast majority of such cases involve mentally ill defendants, but that's not the issue for Martinez. His claim is "linguistic incompetence."
Two Gallaudet University psychologists, who are not deaf, evaluated him at Webb's request and supported a defense motion asking a judge to rule him incompetent. In a second evaluation, done at McGinty's request, specialists at Virginia's Western State Hospital agreed that Martinez is unfit to stand trial. A court hearing on the issue is set for Aug. 9.
In Virginia, a capital defendant -- one facing lethal injection or life in prison without parole if convicted -- can be institutionalized indefinitely if found incompetent while treatment specialists work to "restore competence."
For Martinez, that would mean absorbing the first formal education of his life.
He would have to learn words -- what they are, what they signify -- and become proficient enough at sign language to work with his lawyer. The process could take years and could prove fruitless, depending on his aptitude and willingness to learn, experts said. His incentive: Eventually he could leave a hospital for jail, stand trial for murder and possibly be executed.
"The success rate for this type of thing evidently is not terribly high," Webb said.
Lawyers in similar cases across the country agreed, citing several ongoing, protracted efforts to render "language-less" deaf people competent for trials. In one case -- portrayed in a 1970s book and TV movie, both titled "Dummy" -- Donald Lang, now about 60, is still confined to a Chicago treatment center 40 years after he allegedly killed a prostitute.
Based on the two evaluations, McGinty said he will not contest the incompetence motion. He said the court hearing likely will focus on the types of education that might make Martinez fit for trial someday.
"Certainly from our perspective, it's frustrating," McGinty said. "We want our day in court as quickly as possible. But at the same time, we'll be patient. We recognize that our evidence isn't going anywhere."

Disbelief, Then Discoveries

The detectives still had work to do, but now, after seeing the video, all their energy was focused in one direction. Except for a drunken-driving arrest here in early 2004, Martinez had no police record in the United States, and the FBI found no official reports of sexual assaults or other crimes by him in El Salvador. Within a week, though, officers would be rousing him from sleep in his shed and leading him out of the trailer park in handcuffs.
And in Y-B's, among his friends, there was disbelief.
"He never gave us any kind of sign, no indication at all," Cail said.
"I thought they were just trying to pin this murder on him because he's deaf," Pratt said. "I still have a hard time believing it."
DNA tests at the state crime lab matched the saliva on the juice bottle to the semen in the dead girl and to the skin under her fingernails. The bottle had belonged to her killer, and the lot number showed it had come from Miller Mart.
Those discoveries, plus the video, were enough to support a search warrant for hair and saliva from Martinez for DNA testing. But the detectives worried what might happen if their suspect found out he was under a microscope. If officers lost track of him while waiting for the DNA results, Stout said, "it could be bye-bye, U.S. -- hello, El Salvador."
Stout considered what to do. Like others in the squad room, he often replayed the killing in his mind, imaging the girl's panic -- the attacker's arm squeezing her neck, cutting off air; his open palm pressed against her mouth and nose, stifling her. Stout could see her flailing, maybe reaching up with that left hand and gouging her attacker -- a scratch that almost surely would have healed by now.
Before Stout could decide about the DNA samples, two of the investigators, Jake Rice and Rich Schugeld, walked into Y-B's late Tuesday afternoon, Feb. 15, and saw Martinez sitting at the bar, sipping a 12-ounce Bud.
The detectives sat in a booth, ordered chicken sandwiches from the owner, Young Belliveau, and quietly explained what they wanted her to do.
Just then, as if on cue, Martinez downed the last of his Bud and got up, gesturing to the bartender that he was going out for smokes. He headed for Miller Mart.
As she had been told to do, Belliveau carefully picked up Martinez's empty Bud bottle and carried it to the kitchen. Rice joined her there and slipped the prize into an evidence bag. After locking the bottle in his car trunk, he was back in the booth with Schugeld, waiting for lunch, when Martinez came through the door and returned to his stool. The two detectives watched him order another beer with his hands. And then they ate their sandwiches.
Two days later, a DNA report said the saliva on the Budweiser bottle matched the semen and the fingernail skin. Martinez went to jail that night after the detectives wrote an affidavit for an arrest warrant laying out their evidence.
The evidence: the hound, the video, the DNA.

The photo.

Pat Murray's photo -- the one the detective had taken of Martinez outside his shed early in the investigation, when "the Mexican guy" was just an odd little man in a barroom booth whose name the police wanted to know.
They hadn't bothered to look at the photo then -- it was just something to have available if they needed it. Not until they were about to arrest Martinez did they call up his image on the digital camera. And they saw what Murray hadn't noticed in the dark outside the shed, three nights after the killing.
"An abrasion on the lower left side of his face," they wrote. "Closer examination of this abrasion revealed that the flesh had been taken off his face."


Follow-up:   Due to his inability to communicate, Martinez was remanded to Western State Hospital in Staunton, VA.  He was ordered to undergo sign language therapy in an effort to allow him to understand the charges against him and assist with his defense.  His case is reviewed every 6 months.  Martinez is charged with rape, murder, sodomy, and robbery in connection to Ms Binger’s death.  If convicted, Martinez could face the death penalty.

In May 2007, because of his progress in learning sign language, lawyers had begun to work on Martinez’s defense.  A Williamsburg judge ruled that a trial date may be possibly set in 6 months.

Since May 2007, after the defense attorneys pointed out to Martinez the fact that the faster he learned sign language the faster he would go on trial and face the death penalty, his rate of learning suffered a predictable, rapid  decline.

Brittney Binger
Oswaldo Martinez