The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
In this petition brought pursuant to 28 U.S.C. § 2254, Eleutorio
Cortijo ("Cortijo") seeks a writ of habeas corpus to set aside a judgment
of conviction issued on October 5, 1999 by the Supreme Court of the State
of New York, New York County. After a jury trial, Cortijo was convicted
of one count of Murder in the Second Degree under N.Y. Penal Law §
125.25(1) and was sentenced to a prison term of 25 years to life. He is
currently incarcerated at the Elmira Correctional Facility in Chemung
County, New York pursuant to that judgment. For the reasons stated below,
the petition should be granted.
1. The Prosecution's Case
The following evidence was presented by the prosecution at Cortijo's
a. The Discovery of Jose Antonio Cortijo's Body
The body of Cortijo's father, Jose Antonio Cortijo ("Jose"), was
discovered on the morning of December 12, 1977 in the sub-basement of the
office building in Manhattan where Jose had been employed as
superintendent for over ten years. (Ramirez: Tr. 55-56; Parham: Tr. 115,
121, 183). Cortijo lived in a small room on the 15th floor of this
building. (Parham: Tr. 103-04).
Charles Parham, the building's concierge, discovered Jose's body.
(Parham: Tr. 95, 121). He testified that Jose would normally come to work
early in the morning, before Parham arrived for his shift at 8:00 a.m.
(Parham: Tr. 101-02, 146-47, 192). When Jose arrived, he would unlock the
front door of the building and the passenger elevator. (Parham: Tr.
146-47, 149). On the day of Jose's death, Parham arrived for work at the
building between 7:30 and 8:00 a.m. (Parham: Tr. 115). Upon walking past
the exterior entrance to the building's freight elevator, he saw that it
was stopped on the ground floor. (Parham: Tr. 116-17). Parham found this
strange because the freight elevator, which was manually operated and
could not be called to a different floor, generally remained on the
sub-basement floor. (Parham: Tr. 106, 116, 154, 176-77). Parham thought
this meant that Jose had brought it to the ground floor and then
accidently locked himself out as he exited. (Parham: Tr. 116-17, 176-77).
Parham entered the building through the front entrance, which was
unlocked, and took the passenger elevator, which was also unlocked, to
the sub-basement. (Parham: Tr. 117, 171-72, 190). Jose's workshop, where
Parham believed Jose would be, was in the sub-basement. (Parham: Tr.
106-07, 117-19). Upon exiting the elevator, he heard a radio blasting
disco. music. (Parham: Tr. 119). While walking down the corridor toward
Jose's workshop, he began to smell what was later determined to be burnt
gunpowder. (Parham: Tr. 119-20; Amato: Tr. 310-11). Parham then saw what
he thought was a pile of clothing on the floor in front of the entrance
to Jose's workshop. (Parham: Tr. 119-21). Bending over to examine it, he
realized that the pile was in fact Jose lying face down on the floor.
(Parham: Tr. 121). At first, Parham thought that Jose had suffered a
heart attack and so he shook him. (Parham: Tr. 121, 158). When he saw
blood, he realized that part of Jose's head was gone. (Parham: Tr. 121,
158). He ran up the stairway and called the police. (Parham: Tr. 121-23,
b. Police Investigation in the Immediate Aftermath
Police Officers Albert Milite and James Reid responded to the call.
(Milite: Tr. 199-200). The officers went to the sub-basement and found
Jose lying face down in a pool of blood with a gunshot wound to the back
of his head. (Milite: Tr. 200-01, 204). The officers noticed that Jose
was holding a set of keys in his left hand. (Milite: Tr. 207-08). In
Jose's workshop, Officer Milite found two shotguns and an inoperable
pistol. (Milite: Tr. 205, 209-10). These were all subsequently dusted for
fingerprints but none were recovered. (Milite: Tr. 207). The officers
searched the sub-basement for drugs but found none. (Milite: Tr. 211-12).
Two jackets were hanging on a coat rack in the workshop one was a
beige trench coat, which Jose had been wearing when he left for work that
day, and the other was a leather jacket hanging on top of the
beige trench coat. (Ramirez: Tr. 64-68; Richard: Tr. 233-35). Jose
did not own a leather jacket but Cortijo did. (Ramirez: Tr. 68).
An autopsy performed on Jose the day after his death determined that he
had died as a result of a single shotgun wound to the back of his head.
(Gill: Tr. 85, 88, 90). The bullet entered the back right side of his
head and exited the forehead, making a path upward and to the left.
(Gill: Tr. 88-89). The pathologist called to testify at trial opined that
the muzzle of the shotgun was no farther than two feet from the back of
Jose's head when it was fired. (Gill: Tr. 90-91). Recovered from the
track of the wound were pellets and plastic material, which were
consistent with shotgun pellets and wadding. (Gill: Tr. 89). An
examination of these materials revealed that they came from a 16-gauge
shotgun. (Amato: Tr. 299-300, 303-05). The two shotguns found in the
sub-basement were 12-gauge shotguns and were not used to fire the shot
that killed Jose. (Amato: Tr. 308).
c. Cortijo's Relationship with Jose
Jose had been married to Lydia Cortijo, with whom he had four children
including Cortijo. (Ramirez: Tr. 55-56; Vullo: Tr. 339). At some point
prior to 1977, Jose and Lydia separated and Jose married Gregoria
Cortijo, with whom he had four children Louis Ramirez, Richard
Cortijo, Raymond Cortijo, and Marisol Vega. (Ramirez: Tr. 54-55; Richard:
Tr. 224-25). Jose's children with Gregoria did not learn about Jose's
other family, including Cortijo, until 1974 or 1975. (Richard: Tr. 225).
Early in 1977, Cortijo was living in Puerto Rico. with his mother and
three siblings. (Richard: Tr. 226-27). At some point during 1977, when
Cortijo was 17 years old, he moved to New York to live with Jose and
Jose's family with Gregoria. (Ramirez: Tr. 57; Richard: Tr. 227-28).
Cortijo was not allowed to stay, however, either because their apartment
was too small or because Gregoria believed that Cortijo was stealing from
them. (Ramirez: Tr. 57-60; Richard: Tr. 228). Instead, Jose put Cortijo up
in a small room on the 15th floor of the building where Jose worked as
superintendent. (Parham: Tr. 103; Richard: Tr. 228-29). Cortijo still
visited Jose's second family on occasion, however. (Ramirez: Tr. 59-60;
Richard: Tr. 228, 231-32, 238).
Cortijo and Jose had several arguments in the months immediately
preceding Jose's death. Around Thanksgiving 1977, Cortijo was at Jose's
apartment when Jose took him into a room and closed the door. (Ramirez:
Tr. 61-62; Richard: Tr. 232). A loud argument ensued and Jose threatened
to send Cortijo back to Puerto Rico. (Ramirez: Tr. 62-63; Richard: Tr.
232-33). When the door opened, Cortijo ran out, bleeding heavily from his
face and holding his mouth and stomach. (Ramirez: Tr. 63; Richard: Tr.
232). Jose had a roll of quarters taped to the palm of his hand, which he
had been carrying around for a week and had apparently used to strike
Cortijo. (Ramirez: Tr. 63-64, 74-76). Later, at the end of November
1977, Jose told Parham that he was going to send Cortijo back to Puerto
Rico. (Parham: Tr. 110-13). Jose said that he had to get Cortijo "out of
there" before Christmas. (Parham: Tr. 112-13). Parham thought that
Cortijo had also been made aware that his father intended to return him
to Puerto Rico. (Parham: Tr. 111-12). On December 9, 1977 the Friday
before Jose's death Parham saw and overheard several arguments between
Jose and Cortijo. (Parham: Tr. 113-15, 160). At one point, Parham heard
what he believed was a slap and thought that Jose was "kicking
[Cortijo's] butt." (Parham: Tr. 115).
d. Cortijo's Incriminating Statements
Jose's murder remained unsolved until, many years after Jose's death,
Cortijo made various statements indicating that he had killed his
father. Cortijo moved to suppress these statements prior to trial. See
Transcript of Hearing, June 11, 1998, at 63-74. His motion was denied,
see People v. Cortijo, 684 N.Y.S.2d 435, 442 (Sup.Ct. 1998), and the
statements were admitted.
i. Statements to Richard Cortijo, Richard Cortijo ("Richard") is one of
Jose's sons with Gregoria and thus Cortijo's half-brother. (Richard: Tr.
224). On November 28, 1986, Cortijo was released from Attica Correctional
Facility in Attica, New York after serving a sentence on an unrelated
conviction. (Richard: Tr. 239, 281). The next day, Cortijo visited
Richard at his apartment and told Richard that he wanted to speak with
him in private. (Richard: Tr. 239-41). During this conversation, Cortijo
said to Richard, "I did it, I killed Popi [the name by which Jose was
known to his children]. He wasn't a good father anyway." (Richard: Tr.
242, 268-69, 276-77). Richard asked Cortijo to repeat what he had said
but Cortijo ran out of the apartment. (Richard: Tr. 242). The following
day, Cortijo returned to Puerto Rico. (Richard: Tr. 276, 281).*fn1
Although Richard testified that he had no difficulty understanding
Cortijo and that Cortijo did not appear to be under the influence of any
drugs or alcohol, Richard did not say anything to authorities about
Cortijo's statement for over ten years, until a detective investigating
Jose's murder contacted him in April 1997. (Richard: Tr. 244-45, 251-53,
By April 1997, Richard had a significant criminal history with felony
and misdemeanor convictions for various narcotics and stolen-property
offenses. (Richard: Tr. 218-22). In April 1997, Richard was serving a
prison sentence at Ogdensburg Correctional Facility in St. Lawrence
County, New York. (Richard: Tr. 252-54, 270). On April 3, 1997, Detective
Frank Colaianni, who had been investigating Jose's murder, called Richard
at Ogdensburg. (Richard: Tr. 270; Colaianni: Tr. 612-13). During their
conversation, Detective Colaianni asked Richard what he knew about his
father's murder. (Richard: Tr. 270). Richard told him of his conversation
with Cortijo in November 1986 in which Cortijo said that he had killed
their father. (Richard: Tr. 270-71).
Another detective followed up with Richard in early 1998. On January 5,
1998, Detective Daniel Danaher interviewed Richard, who had recently been
released from prison, at his parole office. (Richard: Tr. 255, 271-72;
Danaher: Tr. 369, 372). Detective Danaher asked Richard about Cortijo's
statement to him in November 1986. (Richard: Tr. 272; Danaher: Tr.
369-72). According to Detective Danaher, Richard responded that Cortijo
had told him that "he killed our father because he was not a good father
and that the father owed [Cortijo] money." (Danaher: Tr. 370).
ii. Statements to Probation Officer Urania Vullo, In the meantime, in
April 1995, Cortijo was convicted after a jury trial of a drug-related
crime. (Vullo: Tr. 319, 322). On April 11, 1995, retired Probation
Officer Urania Vullo conducted a routine pre-sentence interview of
Cortijo. (Vullo: Tr. 316, 319-23). After asking him various preliminary
questions, Vullo asked Cortijo about his mother. (Vullo: Tr. 327-30).
Cortijo responded that she lived in Puerto Rico.
(Vullo: Tr. 330). Vullo then asked about Cortijo's father. (Vullo:
Tr. 330, 341). Vullo recounted the ensuing conversation as follows:
He said I killed him. We both then stared at each
other. He then said no, he was killed, someone killed
What happened to the person that killed him, he
said I don't know. In an angry tone of voice he
said I killed him, I killed him.
[I] said you killed him? There was silence for a
few seconds. He then said someone killed him.
(Vullo: Tr. 341). Prior to this conversation, Vullo had received no
information regarding Cortijo's father, including whether or not he was
alive. (Vullo: Tr. 330).
Vullo thereafter continued the interview without further questioning
Cortijo regarding his statement. (Vullo: Tr. 331). When Vullo asked him
about his mental health, Cortijo related that he had experienced
psychiatric problems since the age of 16 and that he had suffered from
suicidal ideations in the past, the most recent episode occurring two
months earlier. (Vullo: Tr. 341-43). He also complained of having
nightmares and of having difficulty returning to reality. (Vullo: Tr.
343). Cortijo stated that he was taking Navane an anti-psychotic
prescription medication used to help organize thought processes and to
calm agitation but Vullo testified that he did not appear to be
under the influence of drugs or alcohol when she spoke with him. (Vullo:
Tr. 332, 335-36, 343; Bergen Tr. 583-84).
iii. Statements to Detective Frank Colaianni, Detective Colaianni
became involved in the investigation during the summer of 1995 after
Vullo contacted him and conveyed the substance of Cortijo's statement to
her on April 11, 1995. (Colaianni: Tr. 612-13, 620). On October 12,
1995, he and two fellow officers visited Cortijo at Fishkill Correctional
Dutchess County, New York where Cortijo was serving a sentence on his
April 1995 drug conviction. (Colaianni: Tr. 613). After the officers
introduced themselves and told Cortijo that they were there to
investigate his father's death, Cortijo stated not in response to any
particular question that "he was hearing voices that said he shot his
father and he heard a loud noise." (Colaianni: Tr. 616, 624). After
Cortijo made this statement, one of the officers read Cortijo his
Miranda warnings and asked him whether he was willing to answer any
questions. (Colaianni: Tr. 616-18, 623). Cortijo refused to answer any
questions but then stated again, not in response to any particular
question that he had been sleeping on the subway the day his father was
killed. (Colaianni: Tr. 618-19).
iv. Statements to Detective Daniel Danaher, Two-and-a-half years
later, on April 2, 1998, Detective Danaher and another detective went to
Sing Sing Correctional Facility in Ossining, New York where Cortijo was
serving a sentence on an unrelated conviction. (Danaher: Tr. 350-51).
Detective Danaher read Cortijo his Miranda rights from a pre-printed
Miranda card. (Danaher: Tr. 352-55). After being advised of his Miranda
rights, Cortijo indicated that he was willing to answer questions and
signed the Miranda card. (Danaher: Tr. 355). Detective Danaher then told
Cortijo that "we are here to ask you about why you killed your father in
1977." (Danaher: Tr. 360). Cortijo stood up, placed both hands on the
table, and said in a raised voice, "[Y]eah, I killed him, so what."
(Danaher: Tr. 360). He then stated, "[W]hat the fuck are you guys going
to do about it. You are the second guys to come up here and break my
balls about this. I killed him. If I get taken to court I'll say the same
thing." (Danaher: Tr. 360). Detective Danaher asked Cortijo why he killed
his father and Cortijo responded, "I killed him because I felt like it."
(Danaher: Tr. 360).
Detective Danaher testified that this interview lasted five to seven
minutes, during which Cortijo did not display any manifestations of drug
and/or alcohol use and did not slur his speech or talk of hearing voices.
(Danaher: Tr. 358-59, 361). Additionally, Detective Danaher testified
that Cortijo appeared relaxed upon entering the interview room and only
became agitated once the subject of his father's death was addressed.
(Danaher: Tr. 358-61).
Dr. Robert Berger a board certified psychiatrist and the director
of forensic psychiatry at Bellevue Hospital was the sole witness called
by the defense. Dr. Berger provided his expert opinion concerning
"whether there were factors that had contributed or had in some way
undermined [Cortijo's] capacity, his ability to accurately relate,
accurately recall, accurately perceive events in his life and then
accurately relate those." (Berger: Tr. 404-05). Dr. Berger reviewed
Cortijo's psychiatric and mental health records from examinations at
Central New York Psychiatric Center ("CNYPC") in 1983 and 1984, Creedmoor
Psychiatric Center in 1991, Rockland Psychiatric Center in 1992,
Metropolitan Hospital Center in 1994, Rikers Island Health Services and
Montefiore Medical Center in 1991 and 1995, and the Sing Sing Mental
Health Unit of Central New York between 1995 and 1998. (Berger: Tr.
407-09). In addition, Dr. Berger reviewed Cortijo's criminal records, the
police reports generated in connection with Jose's homicide, and some
testimony before the grand jury. (Berger: Tr. 406-07).
Dr. Berger diagnosed Cortijo as a paranoid schizophrenic. (Berger: Tr.
412-13). He defined schizophrenia as a chronic mental condition
characterized by a gradual deterioration of an individual's functions
over time. (Berger: Tr. 413). The symptoms of this condition, which
include hallucinations, delusions, and hearing nonexistent voices, begin
to emerge during late
adolescence. (Berger: Tr. 413-14). Dr. Berger defined a "delusion" as
follows: "A delusion is an idea. It's an inaccurate false idea that the
person maintains in spite of any logic or reason that he is confronted
with still maintains that false idea, that's a delusion." (Berger: Tr.
414). An individual suffering from paranoid schizophrenia experiences
varying degrees of stability, depending on whether the individual is
going through an "acute exacerbation" period, in which the symptoms are
more prevalent; whether the individual is consistently taking medication;
and whether the individual is abusing drugs and/or alcohol. (Berger: Tr.
413-15, 474-75). An individual suffering from paranoid schizophrenia is
capable of both telling the truth and lying, of both being accurate and
inaccurate, and of both remembering events and not remembering events.
(Berger: Tr. 475-76).
Dr. Berger explained that, in light of Cortijo's contentious
relationship with his father and in light of the fact that Cortijo was
only 17 years old when his father died, Cortijo would have been
experiencing feelings of guilt, a sense of responsibility in having
perhaps at times wished his father dead, and a sense of ambivalence over
the loss of his father on the one hand and increased independence on the
other. (Berger: Tr. 420-21). Dr. Berger also noted that, based on medical
records, Cortijo began hearing voices and experiencing sensations of
lights flashing at him shortly after his father's death. (Berger: Tr.
421). He also indicated that these reactions would not have been uncommon
for any adolescent experiencing the death of a family member. (Berger:
Dr. Berger's review of Cortijo's records revealed a longstanding
history of symptoms associated with paranoid schizophrenia. Cortijo began
experiencing auditory hallucinations and delusions during his youth.
(Berger: Tr. 422-23). In 1983 and 1984, physicians described him as
being "irritable, negativistic and hosfile" and noted that he was
"staring blankly, mumbling to himself, [and] completely disorganized and
irrelevant in his thinking." (Berger: Tr. 555-56). For example, while at
CNYPC in 1984, Cortijo refused to eat because he was under the belief
that his food was being poisoned by people from the planet Venus.
(Berger: Tr. 423, 556).
Dr. Berger found it significant that the day after Cortijo's alleged
confession to Richard, Cortijo was arrested for an assault that resulted
from Cortijo's conclusion that a passenger on his flight to Puerto Rico
had stolen money from him. (Berger: Tr. 424-25). Because of this
incident, Cortijo spent several years in a federal medical center where
he received treatment for his paranoid schizophrenia. (Berger: Tr. 425).
Dr. Berger opined that, based on the airplane incident, Cortijo was
experiencing active psychotic symptoms that impaired his sense of what
was real when he made his statements to Richard. (Berger: Tr. 425).
Cortijo pled guilty to menacing charges sometime in 1991 and was
incarcerated at Rikers Island. (Berger: Tr. 426). Records from Rikers
Island indicated that Cortijo's speech was "confused and rambling," which
Dr. Berger cited as "one hallmark of an active phase of a schizophrenic
illness." (Berger: Tr. 426). Records also indicated that Cortijo
experienced a "constant assault" of delusions and hallucinations that
affected "his ability to sense what has been real in his life and what
[has not]." (Berger: Tr. 426). Cortijo was described in the records as
being "delusional," which Dr. Berger characterized as "having these . . .
fixed false beliefs and paranoid feeling[s] others are against" you.
(Berger: Tr. 426).
Cortijo was released from Rikers Island sometime in 1991 but was again
arrested later that year for assaulting a couple who were picketing in
front of the United Nations. (Berger: Tr. 427). Medical notes indicate
that the attack was precipitated by Cortijo's belief that the two
individuals were controlling his mind through the use of a mechanical
car. (Berger: Tr. 427). He was transferred to Creedmoor Psychiatric
Center. (Berger: Tr. 428). There, he was described as having auditory
hallucinations commanding him to hurt and kill others and as having a
history of acting on such commands. (Berger: Tr. 428-29, 572). He also
was described as experiencing suicidal and homicidal ideations, as having
delusional and paranoid beliefs of others wanting to hurt him, and as
feeling that he was being guided by both God and the Devil. (Berger: Tr.
429, 572-73). In addition, notes from Creedmoor indicate that Cortijo
claimed to have been raised by adoptive parents and that he knew nothing
about his biological parents except that he believed that these adoptive
parents had killed his biological father. (Berger: Tr. 429-31). Cortijo
indicated that this information came from voices inside his head.
(Berger: Tr. 432-33). He also told his therapist, in March 1994, that the
voices commanded him to kill his father. (Berger: Tr. 578).
Dr. Berger explained that because Cortijo did not engage easily in
treatment and often stopped taking his medications, he frequently
maintained false beliefs, heard voices, and had hallucinations. (Berger:
Tr. 426). According to Dr. Berger, this constant assault of distorted
thoughts and ideas adversely affected Cortijo's ability to sense what was
real and what was not, most notably around highly-charged emotional
issues. (Berger: Tr. 426-27). Thus, Dr. Berger opined, Cortijo's
distorted thinking undermined his ability to accurately reflect on and
recall important, emotionally-charged events, leading him to believe
extraordinarily bizarre things. (Berger: Tr. 427-28).
Additionally, Dr. Berger spoke of an uncommon syndrome called Capgrass
Syndrome or "Body Snatcher" Syndrome, where the afflicted person develops
the delusion that a close
relative, frequently a parent, has been killed by an evil entity
and that his or her body has been taken over by that entity. (Berger: Tr.
431-32, 551-53). Dr. Berger believed that Cortijo's father's death may
have precipitated the development of this syndrome in Cortijo. (Berger:
Tr. 432, 553).
Dr. Berger reviewed Cortijo's medical records for the months
immediately prior to his inculpatory statements to Vullo on April 11,
1995. (Berger: Tr. 433-34). In January 1995, it was recorded that Cortijo
was hearing voices, actively hallucinating, and seeing a powerful light
coming from behind him. (Berger: Tr. 434-35). Cortijo had been
experiencing these symptoms for many years but they became worse after
his father's death. (Berger: Tr. 434). On February 2, 1995, Cortijo's
therapist noted that he was "psychotic" and unable to distinguish reality
from fantasy. (Berger: Tr. 435-37). The therapist described Cortijo as
speaking about his father, about a light shining inside his head, about
his experience traveling to outer space, and about his belief that he was
at one moment traveling on a subway and the next moment in Nicaragua
fighting on the front lines. (Berger: Tr. 435-36). In mid-February 1995,
Cortijo spoke about having been homeless since his father's death.
(Berger: Tr. 437). While speaking about his father's death, Cortijo began
acting irrationally. (Berger: Tr. 437-38). On March 8 and 11, 1995,
Cortijo was described as being delusional and paranoid, as experiencing
auditory hallucinations, and as acting quite angrily. (Berger: Tr.
450-51, 528). On March 14, Cortijo talked about his all knowing, all
seeing third eye and about being brainwashed so that his thoughts were
not his own. (Berger: Tr. 451, 528). He also spoke of hearing voices
telling him that he should prepare to die, of having shot himself in the
head several times, of having out-of-body experiences, and of hearing his
mother's voice stating that he had been told to, and in fact did, kill
someone in the
past. (Bergen Tr. 452, 577). On March 23, Cortijo was documented as
"experiencing dreams that turn into convictions." (Berger: Tr. 453). Dr.
Berger opined that Cortijo's statements and actions demonstrated that the
death of his father was the pivotal point of Cortijo's life. (Berger: Tr.
On April 11, 1995, Cortijo made his inculpatory statements to Vullo.
Dr. Berger testified that Cortijo did not elaborate on his statement that
he had killed his father and it was thus impossible to know what Cortijo
was thinking when he made the statement. (Berger: Tr. 453). Because of
Cortijo's 20-year period of illogical thinking, however, Dr. Berger
opined that his statement to Vullo could have been a distortion. (Berger:
Dr. Berger also examined records from October 12, 1995, when Detective
Colaianni and other officers visited Cortijo at Fishkill Correctional
Facility. (Berger: Tr. 454). Dr. Berger testified that Cortijo made two
very different statements that day: one, that he was hearing voices that
said he had shot his father and, two, that he had been sleeping on the
subway when his father was shot. (Berger: Tr. 454-55). Dr. Berger opined
that these two diverging accounts demonstrated that Cortijo was
experiencing mixed messages typical of a schizophrenic. (Berger: Tr.
454). In light of Cortijo's history of hearing voices, Dr. Berger
indicated that it was possible that he had heard a voice telling him that
he had shot his father and that he had then incorporated it as the
explanation of what had happened to his father. (Berger: Tr. 455).
Concerning Cortijo's statements to Detective Danaher on April 2, 1998,
Dr. Berger testified that Cortijo had been relatively stable while at
Sing Sing Correctional Facility and that he had been taking
anti-psychotic medication on a consistent basis. (Berger: Tr. 458). As a
result, Dr. Berger thought that this was Cortijo's "clearest period,"
with records describing him
as acting coherently and logically and as displaying no acute symptoms of
schizophrenia. (Berger: Tr. 458). However, when Detective Danaher visited
and asked him why he had killed his father, Cortijo's response was very
angry and hosfile, which Dr. Berger attributed to the emotional nature of
the issue and Cortijo's protracted mental illness. (Berger: Tr. 459-61).
Dr. Berger believed that Cortijo did not want to discuss the subject and
that his hosfile response was his way of making that clear. (Berger: Tr.
460). Dr. Berger concluded that these indicators demonstrated that
Cortijo was again experiencing distorted and illogical ideas in relation
to his father's death. (Berger: Tr. 460-61).
On cross-examination, Dr. Berger acknowledged that a person who
committed a horrendous act could cope with the reality of his conduct in
a number of ways, including repressing it, rationalizing it, and/or
confessing to it, and that the first option, repression, could exact a
terrible price on the individual's physical and mental health. (Berger:
Tr. 477-80). Additionally, Dr. Berger acknowledged that a person
suffering from paranoid schizophrenia could be capable of both telling
the truth and lying and of giving both accurate and inaccurate statements
in response to questions. (Berger: Tr. 475-76, 523, 544-45). Nonetheless,
Dr. Berger concluded that, although Cortijo may have given truthful
answers to most questions posed to ...