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CORTIJO v. BENNETT

United States District Court, S.D. New York


March 8, 2004.

ELEUTORIO CORTIJO, Petitioner, -v.- FLOYD G. BENNETT, JR., Superintendent, Elmira Correctional Facility, and ELIOT SPITZER, New York State Attorney General, Respondents

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. Page 2

I. BACKGROUND

  A. Evidence at Trial

  1. The Prosecution's Case

  The following evidence was presented by the prosecution at Cortijo's trial:

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). Page 3

  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, 172, 191).

  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 Page 4 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). Page 5 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). Page 6

  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, 275, 278-79). Page 7

  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. Page 8 (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 him.
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 Facility in Page 9 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). Page 10

  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).

  2. Cortijo's Case

  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 Page 11 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: Tr. 421).

  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 Page 12 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 Page 13 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 Page 14 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 Page 15 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. 435-37).

  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: Tr. 452-53).

  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 Page 16 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 him, Cortijo's longstanding mental illness undermined his ability to accurately recall, relate, and perceive the emotionally-charged topic of his father's death. (Berger: Tr. 461-62, 601-02).

  B. Summations

  In summations to the jury, counsel for Cortijo argued that the prosecution was seeking a conviction "based almost entirely on the statements of [Cortijo]." (Tr. 658). Page 17

 

If you are tempted in the jury room to give any credence to anything that [Cortijo] said, I want you to remember that [he] is the man whose mind was controlled by a mechanical car, that [he] is the man who was adopted and whose biological parents killed his father. That [he] is a man who traveled to outer space. That [he] is the man who took a gun and shot himself in the head a number of times. That [he] is the man who has three eyes. That [he] is the man whose food is being poisoned by people from the planet Venus. That [he] is the adventurer who took the [subway] to go fight with the rebels on the front line of Nicaragua. That man is seriously ill inside his brain, seriously ill and he is not malingering. He's not faking and to even suggest otherwise is grasping at straws.
. . .
This is an individual who . . . does not engage easily in treatment, does not continue the treatment that is [prescribed] to him and so is frequently experiencing some active level of his illness, some kind of false belief, some type of hallucination, hearing a voice and it is the chronicity, the constant assault of those kinds of thoughts and ideas and experiences on him that, in [Dr. Berger's] opinion, affects and impacts on his ability to sense what has been real in his life and what [has not].
. . .
That's paranoid schizophrenia and that is Eleutorio Cortijo. A man who you can't rely on when he says anything. Certainly, you can't rely on him to prove something and to prove something beyond a reasonable doubt. It is impossible.
. . . [The prosecution has] a number of problems and the first problem is they have to prove that Cortijo's statements are truthful when every single person in this courtroom knows you can't believe what he says and that his statements can never be proven as truthful. It can't happen. That's a problem.
. . . [The prosecution is] going to attempt to corroborate [Cortijo's] statements . . . with other evidence that existed in 1977 and that leads to a second problem. There is no evidence. There is no other evidence of guilt. There is no incriminating evidence that Cortijo killed his father in 1977.
(Tr. 662-67). In conclusion, defense counsel stated:

  [T]his case always comes back to the exact same issue, the statements of that mental patient, the mental patient, are they truthful and [has the Page 18 prosecution] proved that his statements are truthful[?] The answer is no, not now, not ever. It cannot be done.

 (Tr. 694).

  In his closing arguments, the prosecutor listed "a dozen different reasons that the defendant is guilty." (Tr. 702). First was motive — the prosecution argued that Cortijo wanted to kill his father because his father beat him and because "his mother and father [shipped] him back and forth [from Puerto Rico. to New York] like a pingpong ball" and his father was planning to send him back to Puerto Rico. again. (Tr. 702-03). Second, Cortijo had the opportunity to kill his father, largely because he had a key for opening the exterior doors to the freight elevator. (Tr. 705-07). Reason number three was the leather jacket found in Jose's workshop, which the prosecution argued belonged to Cortijo and was left there by him after he shot Jose. (Tr. 707-09). Fourth, the angle of fire was upward, which was consistent with Cortijo shooting Jose because Cortijo was shorter than Jose. (Tr. 710). Number five was the fact that Jose was shot in the back and, according to the prosecutor, "Whom else would he turn his back on besides his son?" (Tr. 710-11). Sixth was the fact that the weapon used to kill Jose — a 16-gauge shotgun — was never recovered and that it must have been hidden in the building by someone who lived there since a pedestrian on the street would have spotted it had the murderer left the building. (Tr. 711-12). Seventh, only a person familiar with the sub-basement could have killed Jose since it was impossible to see the freight elevator from where Jose was shot yet the murderer used it to escape. (Tr. 712-14). Reasons eight through eleven were Cortijo's statements to Richard, Vullo, Detective Colaianni, and Detective Danaher, respectively. (Tr. 714-28). Page 19

  The prosecutor's final reason, and "the most important powerful persuasive argument of all" (Tr. 728), derived from the testimony of Dr. Bergen

 

What is [Cortijo's] diagnosis from Dr. Berger and from everyone else's treatment? He's a paranoid schizophrenic. Absolutely true. Does that prevent him from being truthful? No. Dr. Berger said [so]. Does that prevent him from being accurate? No, Dr. Berger said so. Is there any evidence whatsoever that the defendant is more or less likely to be truthful, to be accurate? No, none whatsoever. There is no single piece of evidence in the record that indicates that the defendant because he is a paranoid schizophrenic is any more likely or less likely to be truthful or accurate.
(Tr. 730).

  C. Jury Charge and Deliberations

  At the close of the proceedings, the trial judge instructed the jury that the People bore the burden of proving Cortijo's guilt beyond a reasonable doubt and that the burden never shifted to the defense. (Tr. 760). With regard to Cortijo's inculpatory statements, the judge instructed the jurors that they should give "no weight" to any statement unless they found beyond a reasonable doubt that the statement was in fact made, that it was voluntarily made, and that it was truthful in whole or in part. (Tr. 765-66).

  Over the course of four days of deliberations, the jury sent a number of notes to the trial judge. On the afternoon of the first day of deliberations, the jury made several requests, including asking for a reading of those portions of Parham's testimony concerning whether keys were needed to operate the freight elevator and to open its external doors (Tr. 788-89) and asking for guidance on whether it was "possible or proper to refer at all to counsel's closing arguments" (Tr. 789). The trial judge informed the jury that, according to Parham, no key was needed to operate the freight elevator or to open its external doors from the inside but that a key was needed Page 20 to open the external doors from the street. (Tr. 794). In addition, the court instructed the jury that it could refer to the attorneys' closing arguments. (Tr. 795). Later that day, the jury made two more requests. They asked for a reading of Ramirez's and Richard's testimony concerning the two jackets found hanging on the coat rack in Jose's workshop. (Tr. 796-97). Those portions were read back to them. (Tr. 800-01). In addition, the jury inquired whether a term used on a police report — "negative results" — meant that "no prints were found or that no identifiable prints were found or that the prints were unreadable (smudged)." (Tr. 796). On this question, the court ordered for portions of Officer Milite's testimony to be read back to the jury. (Tr. 800).

  On the second day of deliberations, the jury requested that the court re-read its reasonable doubt charge and provide "any helpful advice or admonition." (Tr. 805). The court responded by re-reading the reasonable doubt charge and by advising the jury that it could not give any advice or admonition other than to keep deliberating, to analyze the evidence, and to apply the law as the court had instructed. (Tr. 806-11).

  The jury next sent a note asking to hear those portions of Dr. Berger's testimony concerning Cortijo's inculpatory statements. (Tr. 812). "In particular, we would only like to hear Dr. Berger's testimony as to whether each of the specific statements could be the result of the defendant's illness." (Tr. 812-13). The court responded as follows:

The rules of law do not permit the lawyers to ask Dr. Berger that question, and they weren't allowed to ask that question. That is the ultimate question of fact for the jury to decide. The effect of the defendant's mental illness on the defendant's statements, if any, is a question of fact for the jury to decide from all of the evidence in the case. So there is no testimony at this trial from Dr. Berger as to the effect of the defendant's mental illness on his statements.
(Tr. 818). Thereafter, the jury re-worded the query: Page 21

 

We, the jury, request that Dr. Berger's testimony regarding whether a person suffering from paranoid schizophrenia could claim to commit a crime which they did not commit be read back to us.
Also, we request that any testimony by Dr. Berger which refers to whether statements made by a person suffering from paranoid schizophrenia COULD (not whether they were) be [the] result of or consistent with his illness. Please read back to us.
(Tr. 821). On the first part of the jury's question, the court responded as follows:
There is no testimony on that first portion that you requested of Dr. Berger's testimony because the lawyers did not ask that question. The question that you are asking for testimony to be read back on is not a proper question. That is the ultimate issue for the jury to decide. There was no testimony from Dr. Berger.
(Tr. 834-35). On the second part of the jury's question, the court provided a read-back from Dr. Berger's testimony. (Tr. 835-36).

  The jury also asked to hear any testimony of Richard, Vullo, and Detectives Colaianni and Danaher "directly related to the specific statement that [Cortijo] made about the killing of his father." (Tr. 823). After the judge and the attorneys isolated this testimony, it was read back to them. (Tr. 834, 836). At the end of the second day, the jury sent a note asking for guidance on how to proceed if the jurors were not moving toward a unanimous verdict. (Tr. 837). The court instructed the jury to cease deliberations for the day (Tr. 840) and, the following morning, delivered a modified Alien charge (Tr. 845-47). See generally Alien v. United States, 164 U.S. 492(1896).

  On the afternoon of the third day of deliberations, the jury sent the following note:

  We the jury request that we receive further instructions on reasonable doubt and the burden of proof in the context of the People's rebuttal to the defendant's case. Page 22

 

With regards to the People's initial case, [the trial judge] instructed us that the People must prove beyond a reasonable doubt that the defendant's statement[s] were one, made in fact; two, voluntary[;] and three, truthful.
The defendant's case included evidence that the defendant's statements may not be truthful and that the statements [may] be the result of delusions.
Do the People have the burden to rebut this evidence? And what is the standard of proof? In other words, must the People prove beyond a reasonable doubt that the defendant's statements were not a result of delusions?
(Tr. 847-48). Defense counsel indicated that he believed the jury was concerned with the issue of burden-shifting, "who has the burden of doing what?" (Tr. 848-49). He characterized the issue as follows:
Since the defendant presented evidence, does that change the burden? Does that shift the burden, etcetera, etcetera. I think that's fairly clear, even though they don't know the precise term "burden shifting." I think that's what they are concerned with.
(Tr. 849). He asked the court to respond with the following charge:
That the People always have the burden of proof, beyond a reasonable doubt, that the defendant is guilty of the crime charged. That burden never shifts to a defendant, whether or not he offers evidence on his own behalf.
As part of that burden, the People must prove, beyond a reasonable doubt, that the statements . . . were made, were voluntary and were truthful in whole or in part. . . .
[E]ven though he was not required to present evidence, the defendant offered evidence [that] the statements made by the defendant might not be truthful because of the defendant's psychiatric condition.
I charge you that if you believe that the People have not proven, beyond a reasonable doubt, that the defendant's statements were truthful[,] whether they were the product of delusions or not, that you must acquit.
(Tr. 849-50). The prosecutor objected to the proposed charge on two grounds. First, that instead of stating that the People must prove that the statements were truthful "in whole or in part," the Page 23 court should instruct the jury that they should accept those portions of the statements that "they find to be truthful, and reject those portions they find not to be truthful." (Tr. 850, 852-53). Second, the prosecutor objected to the last sentence of defense counsel's proposed charge and asked the court to respond to the last portion of the jury's question — "must the People prove beyond a reasonable doubt that the defendant's statements were not a result of delusions" (Tr. 848) — with simply a "no." (Tr. 853-54). Defense counsel objected to this proposed charge and asked the court to buttress any "no" response with the following: "However, if you find that [Cortijo's] statements were the product of delusion, and have not been proven truthful beyond a reasonable doubt, then you have to disregard the statement[s]." (Tr. 857).

  After considering the proposed charges, the court instructed the jury as follows:

The burden of proof at a criminal trial is always on the People [and] never shifts to the defendant. It doesn't matter if the defendant presents evidence or doesn't present evidence. The burden of proof is always on the People and that standard is proof of guilt beyond a reasonable doubt. It never shifts to the defendant.
Concerning the statements — concerning the statements allegedly made to the two detectives, the People have the burden of proof, beyond a reasonable doubt, to show three things: First, that the statements were in fact made; that they were voluntarily made[;] and that they were truthful in whole or in part. Those three things must [be] proven concerning the detectives, two detectives. They must be proven beyond a reasonable doubt.
Concerning the statements allegedly made to Probation Officer Vullo and to Richard Cortijo, [the] People again have the burden of proof, beyond a reasonable doubt, to show that the statements were, in fact, made and they were truthful in whole or in part.
  Concerning all four statements, you can only accept those portions of the statements which you believe are truthful and you reject such portions of the statements that you believe are not truthful. . . . [T]he burden of proof does not change at all. The burden always remains on the People. Page 24

 

In response to your last question, "Must the People prove beyond a reasonable doubt the defendant's statements were not the result of delusions?" The answer is no. That doesn't shift the burden of proof to the defense but the answer to that question is no. The People are not required to prove that the statements the defendant allegedly made were not the result of delusions.
(Tr. 861-63).

  Minutes after receiving this instruction, the jury sent a note indicating that some of the jurors "couldn't quite hear" the court's "response to our final question on the last request." (Tr. 864-65). Over defense counsel's objection (Tr. 867), the court responded as follows:

The last thing I said in response to your question and the question is, in other words, "Must the People prove beyond a reasonable doubt that the defendant's statements were not a result of delusions." And the answer is no.
However, the People have the burden of proof to prove their case beyond a reasonable doubt and the burden never shifts to the defendant to prove or disprove anything.
(Tr. 868). No further substantive jury notes were submitted.

  D. Jury Verdict and Sentence

  On the afternoon of the fourth day of deliberations, the jury convicted Cortijo of Murder in the Second Degree. (Tr. 884). On October 5, 1999, the court sentenced him to a prison term of 25 years to life. (Sentencing: Tr. 15).

  E. State Court Appellate Proceedings

  Represented by new counsel, Cortijo appealed his conviction to the Appellate Division, First Department. On appeal, Cortijo raised several issues, including that the trial court's supplemental jury charge reduced the People's burden of proof below the constitutionally — required standard of proof beyond a reasonable doubt. See Appellate Division Brief of Petitioner, dated March 2001 (reproduced in part in Petitioner's Memorandum of Law and Page 25 Appendix in Support of Petition for Writ of Habeas Corpus, filed July 10, 2003 (Docket #3) ("Pet. Mem.")), at 66.

  On February 28, 2002, the Appellate Division affirmed Cortijo's conviction. People v. Cortijo, 291 A.D.2d 352 (1st Dep't 2002). The court held in pertinent part that the "supplemental charge meaningfully responded to a jury note, [see People v. Malloy, 55 N.Y.2d 296, cert. denied, 459 U.S. 847 (1982)], and correctly stated the law with respect to the People's burden of proving that defendant's statements were truthful." Cortijo, 291 A.D.2d at 353. Cortijo sought leave to appeal to the Court of Appeals of New York, setting forth the above argument in his application. See Letter from Judith Stern to the Hon. Judith S. Kaye, dated March 21, 2002 (reproduced in Pet. Mem.), at 1. On June 20, 2002, the Court of Appeals denied his leave application. People v. Cortijo, 98 N.Y.2d 674 (2002).

  F. The Instant Habeas Corpus Petition

  In his habeas petition, Cortijo alleges a single ground for relief: "Whether the trial court's supplemental charge, by improperly diminishing and shifting the burden of proof, so infected the entire trial that the resulting conviction violated [Cortijo's] right to due process as guaranteed by the Fourteenth Amendment." Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed July 10, 2003 (Docket #2) ("Petition"), ¶ 12(A). Page 26

 II. GOVERNING LAW

 

A. The Legal Standard for Habeas Petitions Brought Pursuant to 28 U.S.C. § 2254
The federal habeas corpus statute provides:
[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a). Errors of state law are thus not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Rather, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.

  Not every violation of federal law will suffice for habeas purposes, however. Where a state court's decision is "on the merits," a habeas court may grant relief only if that decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision involves an "unreasonable application" of Supreme Court precedent if the state court unreasonably applied a governing legal rule to the particular facts of a case. Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, if the state court decision is "on the merits," a federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable" — not whether the application was simply incorrect. Id. at 409-10. Page 27

  For a decision to be "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims, with res judicata effect," and be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (citation omitted): accord Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) (as long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered "on the merits"). Here, the decision of the Appellate Division with respect to the issue raised in the instant petition was "on the merits." See Cortijo, 291 A.D.2d at 353. Thus, the deferential standard of 28 U.S.C. § 2254(d) applies. Where, as here, the state court does not set forth an explicit holding as to the federal constitutional claim, a federal court must necessarily apply the deferential 28 U.S.C. § 2254(d) standard to the state court's "implicit holding." Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003); see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (standard satisfied as long as "the result" of the state court decision does not contradict governing Supreme Court law).

  B. The Law Governing Habeas Relief for Improper Jury Charges

  To obtain habeas relief with respect to a jury instruction, it must be shown "not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973): accord Davis v. Strack, 270 F.3d 111. 123 (2d Cir. 2001). A jury charge that defectively defines the prosecution's burden to prove the elements of an offense against a criminal defendant beyond a reasonable doubt constitutes just such a federal due process violation. See, e.g., Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993); Cage v. Louisiana, 498 U.S. 39, 39-41 (1990) (per curiam). Page 28

  For an erroneous jury charge to result in a conviction that violates federal due process, the error must be one that "infected the entire trial." Cupp, 414 U.S. at 147; accord Blazic v. Henderson, 900 F.2d 534. 541 (2d Cir. 1990): see also Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (one consideration in determining whether the error "infected the entire trial" is whether the error consisted of an omission or a misstatement of the law, since "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law"). In making this determination, a court should view the challenged portion "in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (citing Cupp, 414 U.S. at 147); accord Mullings v. Meachum, 864 F.2d 13, 16 (2d Cir. 1988). Special attention should be paid to the "particularly telling impact" of supplemental instructions. Rock v. Coombe, 694 F.2d 908, 915 (2d Cir. 1982). cert. denied, 460 U.S. 1083 (1983); accord Arrovo v. Jones, 685 F.2d 35, 39 (2d Cir.) (discussing the "special prominence" of supplemental instructions and how they make "a special impression on the jurors"), cert. denied, 459 U.S. 1048 (1982).

  While, as Cortijo notes, see Pet. Mem. at 32, 34-35, Cage phrases the court's inquiry as an examination of "how reasonable jurors could have understood the charge," 498 U.S. at 41 (emphasis added), Estelle has disavowed that standard, see 502 U.S. at 72 n.4. The Supreme Court has made clear that a jury instruction violates a petitioner's constitutional rights only where "`there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)); accord Gaines v. Kelly, 202 F.3d 598, 606 (2d Cir. 2000). Our focus is thus on whether there is a "reasonable likelihood" that such a circumstance existed here. Page 29

 III. DISCUSSION

  The disposition of this case turns on how the jury understood the trial court's final two sets of supplemental instructions given in response to the jury's question, "[M]ust the People prove beyond a reasonable doubt that the defendant's statements were not a result of delusions?" But in order to determine how the jury understood those instructions, it is first necessary to understand what the jury intended to convey by its question. Only then will we be able to understand how "the jury . . . applied" the judge's instructions in response to that question, Estelle, 502 U.S. at 72 (internal quotation marks and citation omitted).

  Accordingly, the Court's analysis proceeds in the following manner: (1) what did the jury mean by its question?; (2) in light of that interpretation, was the trial judge's "no" answer contrary to the requirements of the Due Process Clause of the Fourteenth Amendment?; and (3) how did the jury understand, and thus apply, the instructions given by the trial court in response to its question?

  A. What Did the Jury Mean by Its Question?

  The jury's question was as follows: "[M]ust the People prove beyond a reasonable doubt that the defendant's statements were not a result of delusions?" (Tr. 848). There is no dispute between the parties — and the context makes clear — that the "statements" referred to in the jury's question were the admissions made by Cortijo that he had killed his father.

  The parties offer two sharply contrasting views of what this question meant. In Cortijo's view, the phrase "a result of delusions" is a shorthand for "delusional" or, in other words, "false." See Pet. Mem. at 33-34. Thus, in Cortijo's view the meaning of the question becomes: "[M]ust the People prove beyond a reasonable doubt that the defendant's admissions that he had killed his Page 30 father were not false?" — or, stated more clearly, "[M]ust the People prove beyond a reasonable doubt that the defendant's admissions that he had killed his father were true?"

  The respondents' view, on the other hand, is that the jury was inquiring whether the People had some burden to show that the truthful confessions given by Cortijo did not come into being because of Cortijo's delusions. See Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus, filed October 10, 2003 (Docket #7) ("Resp. Mem."), at 29. The respondents illustrate this argument with the following example:

For example, if a person actually killed someone, and thus was not under the sway of a delusion in that regard, but was motivated to confess by a delusion that a dragon would attack him if he did not confess his guilt, there would be no basis for disregarding the statement as untruthful.
Id. accord id. at 30 ("Since the jurors could have found that [Cortijo's] statements had been the product of other delusions, they did not necessarily have to conclude that [Cortijo's] statements were false."). Under this argument — which for convenience the Court will refer to as the "dragon argument" — the respondents implicitly posit that Cortijo's jury might have been asking the judge whether, in order to use the purportedly truthful confessions in its case against Cortijo, the prosecution was required to prove beyond a reasonable doubt that Cortijo's delusions were not the cause of Cortijo making these confessions. Thus, under this view the jury was wondering if there was some special burden on the prosecution to show that the truthful confessions did not come about because of Cortijo's mental illness.

  If the jury's question were taken in isolation, the question might be susceptible to either interpretation — although it would certainly be strange for the jury even to imagine that the prosecution would have a special burden of the kind the respondents posit since no such burden Page 31 had theretofore been mentioned in the jury charge. But it would be improper to judge the meaning of the question in isolation because in fact the context of the question makes clear that the jury meant what Cortijo argues it meant. See, e.g., Estelle, 502 U.S. at 72 (a court should view the challenged portion "in the context of the instructions as a whole and the trial record"). To put it simply: absolutely nothing in the trial record would have led the jury to believe that the existence of "truth — inducing delusions" — as opposed to whether Cortijo falsely believed that he had killed his father — had ever been at issue in the case. And even more persuasively, the other portions of the jury's notes to the court make absolutely clear that the jury was referring to delusions that may have caused Cortijo to give false confessions. We discuss the trial record and the jury's notes in sequence.

  1. The Trial Record Prior to the Jury's Question

  The trial record presented to the jury — consisting of testimony, summations, and the judge's instructions — contains nothing to suggest that the jury might have been inquiring about truth-inducing delusions. First, there was no testimony from any witness regarding such delusions. Rather, the testimony regarding delusions related to Cortijo's inability to "differentiate fantasy from reality." (Berger: Tr. 437). Dr. Berger defined "delusional" as "having these . . . fixed false beliefs and paranoid feeling[s] others are against" you. (Berger: Tr. 426). Thus, Dr. Berger testified that Cortijo had spoken of many beliefs Cortijo had harbored that were obviously impossible and therefore false — for example, traveling to outer space, being at one moment on a subway and the next moment in Nicaragua fighting on the front lines, and being controlled by a mechanical car. (Berger: Tr. 427, 435-36). Dr. Berger never testified to the existence of any delusions — as posited by the "dragon argument" — that would have caused Page 32 Cortijo to tell the truth. Nor did any other witness. Although the respondents are correct in asserting that there was no testimony that Cortijo suffered from a single delusion and that this delusion was that he had killed his father, see Resp. Mem. at 30, Dr. Berger repeatedly testified at trial to Cortijo's experiencing symptoms that impaired his ability to recognize what was real and what was not (see, e.g., Berger: Tr. 417, 423-32, 435-37, 451-53, 460-62, 601-02).*fn2

  Second, during summations neither defense counsel nor the prosecutor adverted to any theory or argument that Cortijo had experienced truth — inducing delusions. Defense counsel went over the many beliefs Cortijo held that were obviously false (Tr. 662-63) to support his argument that "[Cortijo's] statements can never be proven as truthful" (Tr. 666). In other words, Cortijo's counsel recounted the delusions in the hope of persuading the jury that if these other beliefs were false then so too were Cortijo's statements that he had killed his father. The prosecutor countered by exhorting the jury that Cortijo was telling the truth when he made those statements. (Tr. 714-28). He pointed out that Cortijo had performed other lucid acts in the periods when he made the confessions (Tr. 717-20, 723-24), that he had on other occasions given confessions in other cases which showed that he was the sort of person who made truthful confessions regarding his crimes (Tr. 724-28, 731-34), and that being mentally ill did not prevent the statements he made about his father's death from being truthful (Tr. 730-34).

  Thus, the focus of the arguments centered entirely on whether Cortijo's mental condition was such that the jury could believe that the statements he made regarding his father's murder Page 33 were truthful. Nothing was said regarding the possibility that Cortijo's mental condition had prompted him to make truthful confessions.

  Finally, the trial court's instructions to the jury made no reference, either direct or implied, to truth — inducing delusions. (See Tr. 765-70). In short, nothing in the record would suggest that the jury was inquiring of truth — inducing delusions when it asked its question.

  2. The Jury's Notes

  While the above evidence strongly suggests the meaning behind the jury's question, additional and conclusive evidence comes from the jury's own writings — specifically, its notes to the trial court. Not only do these notes make clear that the jury was not asking about truth-inducing delusions but they also show that the jurors were asking the trial judge to identify for them which of the two parties — the prosecution or the defense — had the burden of proof on the issue of whether Cortijo's statements were true.

   The jury's first note referring to Cortijo's confessions asked for a read-back of any testimony from Dr. Berger "as to whether each of the specific statements could be the result of the defendant's illness." (Tr. 812-13). As discussed, in the context of the evidence presented at trial and the closing arguments, the phrase "result of the defendant's illness" cannot reasonably be construed as referring to an illness that had some truth-inducing aspect, as there was no such evidence or arguments on that point. Significantly, in a discussion regarding how to answer this question, defense counsel specifically referred to the fact that it was for the jury to decide whether Cortijo's mental illness "undermine[d]" his ability to tell the truth — a proposition with which the prosecutor agreed. (Tr. 815). Throughout the colloquy, neither the trial judge nor the attorneys ever suggested that the psychiatric testimony might have shown that Cortijo's mental Page 34 illness "induced" him to tell the truth, rather than "undermined" his ability to tell the truth. (See Tr. 813-16). In other words, the lawyers who considered the jury's note thought that they needed to respond to the issue of whether Cortijo's mental illness (to wit, his delusions) might have caused his confessions to be false — not whether the delusions had prompted Cortijo to make truthful confessions. The trial judge implicitly agreed with this assessment in responding to the jury that there was no testimony from Dr. Berger on the issue of "whether each of the specific statements could be the result of the defendant's illness," charging: "That is the ultimate question of fact for the jury to decide" (Tr. 818).

   The next note from the jury made their inquiry unmistakable. The note asked for Dr. Berger's testimony regarding "whether a person suffering from paranoid schizophrenia could claim to commit a crime which they did not commit" and "whether statements made by a person suffering from paranoid schizophrenia COULD (not whether they were) be [the] result of or consistent with his illness." (Tr. 821 (emphasis added)). In other words, the jury was wrestling with the issue of whether Cortijo had falsely confessed to the crime and whether any such false confession arose because of Cortijo's mental illness. This note is completely inconsistent with the "dragon argument" — that is, the notion that the jury was considering whether Cortijo's delusions had prompted him to give truthful confessions.

   After asking for a read — back of the testimony of Richard, Vullo, and Detectives Colaianni and Danaher "directly related to the specific statement that [Cortijo] made about the killing of his father" (Tr. 823), the jury sent the note at issue in this case. The preamble to the jury's question specifically adverted to the fact that "[t]he defendant's case included evidence that the defendant's statements may not be truthful and that the statements [may] be the result of Page 35 delusions." (Tr. 848 (emphasis added)). This coupling of lack of truthfulness with "the result of delusions" makes plain that the jury was not inquiring about any truth-inducing delusions but rather about how it should consider the evidence suggesting that Cortijo's delusions had prompted false — not true — confessions.

   After stating the preamble for its question, the jury asked:

Do the People have the burden to rebut this evidence? And what is the standard of proof? In other words, must the People prove beyond a reasonable doubt that the defendant's statements were not a result of delusions?
(Tr. 848). Because it was given in the context described above, it is clear that the jury wanted to know who bore the burden of proving whether or not Cortijo's delusions had prompted false confessions. Specifically, it wanted to know if the prosecution had the burden of proving that the confessions were not delusional — that is, if the prosecution had the burden of proving that the confessions were true.

   In sum, there is not a shred of evidence in the record to support the respondents' "dragon argument." All of the evidence in the record is consistent with a single interpretation of the note: that the jury was asking whether the prosecution bore the burden of proof as to whether or not Cortijo's delusions had caused him to make false confessions to his father's murder.

   B. The Trial Judge's "No" Answer to the Jury's Question

   The respondents' brief essentially begins and ends with the "dragon argument." That is, the respondents make no argument that, if the jury's question in fact meant what Cortijo contends it meant, the trial judge's instruction could be saved. If the "dragon argument" is taken out of the equation, the respondents do not appear to believe that the court's instruction can be justified. The respondents reach this result under the assumption that the jury had to determine — as the Page 36 trial court repeatedly instructed — whether the People met the "burden of proving that petitioner's statements were truthful," Resp. Mem. at 28. Thus, the respondents offer the "dragon argument" in their effort to show that the jury's question had nothing to do with the issue of which side bore the "burden of proving that petitioner's statements were truthful," id. This Court having reached the opposite conclusion, it would appear that the respondents are conceding that the judgment of conviction cannot stand. And, ultimately, the Court agrees with the respondents' implicit assumption that this conviction cannot stand if the jury's question is interpreted in the manner the Court believes it must be interpreted — for reasons that will now be explained.

   The respondents give no citation for their assumption that the People bore the "burden of proving that petitioner's statements were truthful," id. Certainly, an instruction to this effect was given on several occasions by the trial court in its charge to the jury. (See Tr. 765-66, 769-70, 862-63). Nonetheless, stated as a general proposition, the giving of such an instruction is not a federal constitutional requirement, as the respondents mention in a footnote to their brief. See Resp. Mem. at 28 n.18. Indeed, even though this instruction has been included in a version of New York's pattern jury instructions, see 1 Comm. on Criminal Jury Instructions, Criminal Jury Instructions: New York § 11.01, at 656-57, 659, 661 (1st ed. 1983) ("N.Y.C.J.I."), it was not even a correct statement of the law in New York at the time of Cortijo's trial in 1999. New York law contains a statutory requirement only that the jury be instructed to disregard a confession if the jury finds that it was involuntarily made. See N.Y. Crim. Proc. Law § 710.70(3). New York's pattern jury instructions have added an instruction that the prosecution must prove beyond a reasonable doubt that the confession was "truthful." N.Y.C.J.I. § 11.01, at 656-57, 659, 661. Case law, however, makes clear that there is no requirement to give such an instruction Page 37 under New York law. See, e.g., People v. Johnson, 303 A.D.2d 903, 906-07 (3d Dep't 2003); People v. Bowen, 134 A.D.2d 356, 357 (2d Dep't 1987).

   Nor is there a general federal constitutional requirement that a jury be instructed that the prosecution must prove the truthfulness of a defendant's confession — under any burden of proof. While the prosecution's burden of proof beyond a reasonable doubt applies to each element of its case, the reasonable doubt standard does not "operate upon each of the many subsidiary facts on which the prosecution may collectively rely to persuade the jury that a particular element has been established beyond a reasonable doubt." United States v. Viafara-Rodriguez, 729 F.2d 912, 913 (2d Cir. 1984) (citing United States v. Valenti, 134 F.2d 362, 364 (2d Cir.), cert. denied, 319 U.S. 761 (1943)).

   Nonetheless, the fact that an instruction of this kind is not generally required does not mean that the jury in this case properly could be given a "no" answer to its question under the Constitution. This is true for three reasons.

   First, the jury was not asking merely whether the prosecution bore a special burden of proof with respect to the truthfulness of the confessions. The jury was also asking, by implication, whether Cortijo bore a burden of proof on this point. As will be recalled, the jury's question to the trial judge specifically noted that there was evidence from Cortijo that his statements may not have been true and that they might have been the result of delusions. (Tr. 848). Thus the jury explicitly recognized that there was some evidence — placed in the record solely through Dr. Berger's testimony — that Cortijo's confessions were false. By then inquiring whether the People had the burden to "rebut" this evidence, a reasonable assumption is that, in the jury's mind, the defense was bearing some burden of convincing the jury of the delusional Page 38 nature of the confessions. The unstated implication of the jury's question thus became: who has the burden to persuade the jury on this point? Having been told numerous times that the burden of proof was on the People, the jury naturally asked whether, as would seem consistent with the judge's prior instructions, the People had the burden to rebut this evidence (that is, to prove that Cortijo's confessions were not delusional). When told the answer was "no," the jury would logically assume that the defense must bear some burden on this point: specifically, that the defense must have some burden of showing that the confessions were in fact delusional. In other words, when the jury was given a definitive "no" answer to its question, it could quite reasonably interpret that "no" as meaning Cortijo, not the People, bore some burden of proof as to the truthfulness or lack of truthfulness of the confessions.

   Any implication that Cortijo bore such a burden is of course contrary to the requirements of the Due Process Clause. As the Supreme Court stated in In re Winship:

Lest there remain any doubt about the constitutional stature of the reasonable — doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
397 U.S. 358, 364 (1970); accord Sandstrom v. Montana, 442 U.S. 510, 520, 523-24 (1979). In keeping with this principle, the Second Circuit has stated:

   A jury instruction that permits conviction on a lesser standard — by shifting the burden of proof from the prosecution to the defendant . . . — is constitutionally deficient. Any such deficiency would be a per se ground for reversal of a criminal conviction: because the Sixth Amendment and the Fourteenth Amendment's Due Process Clause together require a jury verdict of guilty "beyond a reasonable doubt," a guilty verdict rendered by a jury applying a less demanding standard of proof is not a jury verdict at all within the meaning of the Sixth Amendment. Page 39

  Vargas v. Keane, 86 F.3d 1273, 1276 (2d Cir.) (citing Sullivan, 508 U.S. at 278, 280), cert. denied, 519 U.S. 895 (1996).*fn3

   The second reason a definitive "no" answer could not be a proper response to the jury's question is that in some circumstances — such as in this case — the prosecution as a practical matter does shoulder the burden of proving the truthfulness of a confession beyond a reasonable doubt. This is because where a confession consists of a single admission that the crime was committed — without any specifics as to the manner in which the crime was committed — it would be impossible for the jury to convict without having concluded that the content of the confession was true. For example, even if there had been ample evidence of Cortijo's having committed the murder — such as an eyewitness — the prosecution still logically would have had to have proven that the content of Cortijo's confessions was true. In these circumstances, it would be misleading to give an affirmative instruction that the prosecution need not prove the truthfulness of the confessions.

   Third, and more importantly, this was not a case where the confessions merely supplemented other evidence available to support a conviction. Without the confessions, the evidence against Cortijo would not have met the requirement that a defendant be convicted only by evidence sufficient to support each element of the offense charged. See, e.g., Jackson v. Virginia, 443 U.S. 307, 316-19 (1979). As the respondents concede, in Cortijo's case "the Page 40 dispositive issue was whether or not the jury found [Cortijo's] statements to be truthful." Resp. Mem. at 31; accord id. at 28 n.18 ("[Cortijo's] statements were the only direct evidence of his guilt and central to the People's case."). Thus, if the jury could not have found that the People had proven beyond a reasonable doubt that the confessions accurately reflected what had occurred, the jury could not have found Cortijo guilty. While the reasonable doubt standard does not operate on every single piece of the prosecution's evidence individually, the prosecution nonetheless "must persuade the factfinder `beyond a reasonable doubt' of the facts necessary to establish" the elements of the charged offense. Sullivan, 508 U.S. at 278; accord Montana v. Egelhoff, 518 U.S. 37, 54-56 (1996). Where, as here, the only evidence sufficient to support a conviction requires that a jury accept the accuracy of the confessions of the defendant, it is constitutionally infirm to affirmatively instruct the jury that the prosecution bears "no" burden with respect to those confessions.

   The "central[ity]" of the confessions to the prosecution's case is reflected not only in the absence of other evidence sufficient to show Cortijo's involvement in the murder but also in the extensive nature of jury deliberations devoted to the confessions. There were approximately 24 hours of jury deliberations, excluding read — backs, over the course of four days. (See Tr. 871, 882). The jury first requested Dr. Berger's testimony early in the afternoon of the second day (shortly after it first requested additional instruction on the People's burden of proof). (Tr. 805, 812-13). All subsequent substantive notes related either to his testimony, to any testimony concerning Cortijo's statements, or to the burden of proof. (See Tr. 821, 823, 847-48). Inasmuch as deliberations had begun only on the afternoon of the first day, it appears that the vast bulk of the 24 hours of deliberations — probably as much as 16 hours — were devoted to Page 41 considering the issue of Cortijo's mental condition and, presumably, its effect on the truthfulness of his statements. Notably, the inquiry regarding whether "the People [must] prove beyond a reasonable doubt that [Cortijo's] statements were not a result of delusions" (Tr. 848) was the only substantive inquiry made by the jury after it asked for guidance from the court in the event that it was "not progressing toward a unanimous verdict" (Tr. 837). In these circumstances, the jury obviously was struggling with whether the confessions were true and this struggle was critical to its resolution of the case.

   The focus on the "central[ity]" of the confessions is the inverse of the analysis that occurred in Mancuso v. Harris, 677 F.2d 206 (2d Cir.) cert. denied, 459 U.S. 1019(1982). In Mancuso, the Second Circuit considered an instruction that arguably shifted the burden of proof to the defendant on the issue of the defendant's intent to commit the crime charged. See id. at 207, 210. The court took into account "the circumstances and extent to which [the defendant's] intent was an issue at his trial." Id. at 211 (citing Washington v. Harris, 650 F.2d 447, 453 (2d Cir. 1981), cert. denied, 455 U.S. 951 (1982)). Because it determined that the defendant's intent was not an issue, the court concluded that there was "no significant possibility that harm was done" by the challenged instruction. Id. (internal quotation marks and citation omitted). Here, however, following Mancuso's admonition to consider "the circumstances and extent to which" Cortijo's confessions "[were] an issue at his trial," this Court must conclude that there is at least a "significant possibility" that harm was done by the improper answer to the jury's question on this point.

   This is not to say that a trial court is required to determine in advance whether a particular piece of evidence is "central" or "dispositive" and then give an instruction that the prosecution Page 42 bears the burden of proving the existence or truth of that particular piece of evidence. Rather, the centrality of the confessions is relevant to judging how the jury in Cortijo's case interpreted the trial judge's affirmative statement that the prosecution did not bear the burden of proving the truth of the confessions. Given the centrality of the confession evidence, it was imperative that the jury not be led to believe that the prosecution bore no burden of proving that those confessions were true. Thus, where a jury's note picks out a certain fact that is constitutionally necessary for proof and makes inquiry about it, the trial court cannot affirmatively respond that the prosecution bears no burden of showing this fact to be true.

   Taking the "no" response in isolation, the answer might "literally" be true in some hypothetical situations. But the oft-quoted admonition of Judge Learned Hand is particularly appropriate here: "There is no surer way to misread any document than to read it literally," Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (Hand, J., concurring), aff'd, 324 U.S. 244 (1945). The law properly does not inquire into the "literal" truth of a jury instruction but rather admonishes that the instruction be judged by whether there is a "reasonable likelihood" that the jury misapplied it. See, e.g., Estelle, 502 U.S. at 72. For the reasons discussed, the direct "no" answer to the jury's question resulted in such a likelihood.

   Having determined that under the Constitution the jury's question could not be answered simply with a "no," we now examine the remainder of the judge's responses to the jury's notes to determine how the instructions were understood — and thus applied — by the jury.

   C. How the Jury Understood and Applied the Instruction

   As already discussed, the jury — in two separate requests to the court — was struggling to determine which side had the burden of proof when it came to determining whether it would Page 43 accept Cortijo's confessions as truthful. Even though the jury had been instructed on numerous occasions that the prosecution bore the burden of proof on each element of the crime charged, and even the burden of proving the truthfulness of the confessions themselves, the jury's notes show that the jurors nonetheless remained confused on this point. The jury thus inquired of the trial court whether the prosecution bore the burden of proving that the statements were truthful. Implicit in this request was the jury's assumption that there existed a possibility that the opposite was true: in other words, that the defense bore the burden of proving that the confessions were false (that is, that the confessions were "a result of [Cortijo's] delusions").

   Despite the numerous instructions that had been given stating that the burden of proof was always on the prosecution, the very fact that the jury asked its question regarding the burden of proof shows that the jurors still entertained the possibility that some special rule might operate with respect to evidence offered by the defendant, or at least with respect to psychiatric evidence of delusions. This would not be a strange thought for a layperson to harbor. A layperson might speculate that, even if the prosecution bore the burden of proving beyond a reasonable doubt the elements of a crime or even the truth of a confession, that rule might not apply where a defendant offered some specialized evidence to argue that the confession was not true. Indeed, one or more jurors may have been aware — through newspaper coverage of trials featuring the insanity defense or otherwise — that a defendant bears the burden of proving insanity, see, e.g., 18 U.S.C. § 17(b); N.Y. Penal Law §§ 25.00(2), 40.15, and wondered if the same rule might apply to a defendant's psychiatric evidence that his confessions were delusional. Certainly, the notes to the judge reflect the jury's confusion on this score. Page 44

   Accordingly, when the jury heard that the answer to its question was "no" — in other words, that, in light of the psychiatric evidence of the confessions' falsity that was adverted to in their note, the prosecution did not bear the burden of proving that the confessions were true — the jury naturally would be led to assume that the defendant bore some burden of proof on this issue. As discussed, placing such a burden on the defendant is contrary to the requirements of the Due Process Clause. The question thus becomes whether the balance of the judge's instructions erased the effect of the unequivocal "no."

   In the analogous context of a jury instruction that potentially created a presumption shifting the burden of proof to the defendant, the Supreme Court noted:

If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. [Cupp, 414 U.S. at 147]. This analysis "requires careful attention to the words actually spoken to the jury. . . ."
Francis v. Franklin, 471 U.S. 307, 315 (1985) (quoting Sandstrom, 442 U.S. at 514).*fn4

   As noted, at the same time the trial judge gave the unequivocal "no" response to the jury's question, the trial judge also stated, "That doesn't shift the burden of proof to the defense." (Tr. 863). The court also repeated its instruction regarding the burden of proof, including the instruction that the People always bore the burden of proof and that the People had to prove the truthfulness of the confessions beyond a reasonable doubt. (Tr. 861-63). Page 45

   As the Second Circuit has noted, however, such repeated admonitions are not necessarily sufficient to cure jury confusion on the burden of proof. For example, in United States v. Doyle the Second Circuit noted that "instructions correctly explaining the presumption of innocence and the prosecution's burden of proving guilt beyond a reasonable doubt, when given `repeatedly,' can render a charge in its entirety adequate to avoid reversal" despite the existence of an improper instruction. 130 F.3d 523, 539 (2d Cir. 1997) (citations omitted). Nonetheless, the court held that the trial judge's "repeated" correct instructions of the law were insufficient to overcome the effect of the single improper and potentially burden-shifting instruction and thus reversed the conviction. Id. at 539-40.

   As discussed, the "no" answer misled the jury into thinking the judge was telling them that the defense had the burden of proving that the statements were delusional. The jury's understanding on this topic would not necessarily have been changed by the judge's subsequent instruction that this "doesn't shift the burden of proof to the defense" (Tr. 863). First, the trial judge might simply have meant that the burden of proof generally did not shift to the defense — as opposed to the particular burden of proof on the truthfulness of these statements. Second, the trial judge followed up this instruction by again announcing that "the answer to [the jury's] question is no. The People are not required to prove that the statements [Cortijo] allegedly made were not the result of delusions." (Tr. 863). By following the potentially curative instruction with another definitive "no" answer, there certainly is a "reasonable likelihood" that the jurors were led to believe that it was not the prosecution that had to prove these particular statements were true but rather the defense that had to prove they were false. Page 46

   The next issue is whether the court's other, proper instructions — including the one given at the same time as the challenged instruction in this case — were enough to cure the confusion necessarily engendered by the "no" answer to the jury's question. As already discussed, the trial judge on multiple occasions explained that it was the People's burden to prove its case beyond a reasonable doubt and that the People had the burden to prove the truthfulness of the confessions. (Tr. 760-61, 765-66, 769-70, 773, 807, 862-63, 868).

   This Court is convinced that these repeated instructions did not result in there being no "reasonable likelihood" that the jury misapplied the court's answer to its question. The strongest reason to believe that the confusion was not alleviated is the fact that the jury's own question had actually repeated almost verbatim the judge's earlier instruction regarding the People bearing the burden of proof on the truthfulness of the confessions. (Compare Tr. 848 with Tr. 765). That is, the jury's note indicated that the jurors were already aware that the People bore the burden of proof on the truthfulness of the confessions. Despite this knowledge, the jury still wished to know whether that same burden-of-proof rule applied to the psychiatric evidence regarding the potential falsity of Cortijo's confessions. The judge answered "no" and the instruction did nothing to clarify this answer when it simply repeated the premise that had already been stated in the jury's note (that is, that the prosecution bore the burden of proof on the truthfulness of the confessions). The respondents argue that "if the jurors required further clarification of the answer, they would have asked for it at that time or after the answer was repeated." Resp. Mem. at 33. But it would have been pointless for the jury to request "further clarification" when it had already sought clarification by asking the very question at issue in this case. Page 47

   An analogy may be seen in the principle of statutory construction that "[a] specific provision controls over one of more general application," Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991) (citation omitted). This principle represents a common-sense understanding of language. We are often presented with general rules that are almost always applicable (e.g., cars must stop at a red light) but recognize that there may be unusual circumstances where the rule is not to be followed (e.g., proceed through the red light when instructed to do so by a police officer directing traffic). When faced with conflicting admonitions, a jury would logically choose to follow the more specific direction. See Humanik v. Beyer, 871 F.2d 432, 442 (3d Cir.) (more likely than not that jurors, when considering evidence regarding the defendant's mental disease or defect, applied the instruction "specifically directed to that subject matter rather than the more general charge"), cert. denied, 493 U.S. 812 (1989).

   Case law on supplemental jury instructions further supports this view. In Bollenbach v. United States, the Supreme Court reversed a defendant's conviction because of an improper "last-minute" presumption charge given by the trial judge. 326 U.S. 607, 611-12, 615 (1946). In so doing, the Court stated: "Particularly in a criminal trial, the judge's last word is apt to be the decisive word. If it is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptional and unilluminating abstract charge." Id. at 612. The Court went on to indicate that "[w]hen a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Id. at 612-13; accord Rock, 694 F.2d at 915 (discussing the "particularly telling impact ordinarily made by a supplemental instruction, and especially the last such instruction"). The Second Circuit has noted that Page 48

  

[a] supplemental charge must be viewed in a special light. It will enjoy special prominence in the minds of the jurors for several reasons. First, it will have been the most recent, or among the most recent, bit of instruction they will have heard, and will thus be freshest in their minds. Moreover, it will have been isolated from the other instructions they have heard, thus bringing it into the foreground of their thoughts. Because supplemental instructions are generally brief and are given during a break in the jury's deliberations, they will be received by the jurors with heightened alertness rather than with the normal attentiveness which may well flag from time to time during a lengthy initial charge. And most importantly, the supplemental charge will normally be accorded special emphasis by the jury because it will generally have been given in response to a question from the jury.
Arroyo, 685 F.2d at 39.

   After receiving the charge at issue on the afternoon of the third day of deliberations, no further substantive questions were asked by the jury prior to its verdict on the fourth day of deliberations. This indicates that the judge's "last word" was relied upon by the jury in concluding its deliberations and reaching its verdict. As was true in Sandstrom, "we cannot discount the possibility that [Cortijo's] jurors actually did proceed upon" an incorrect interpretation, 442 U.S. at 519. Accordingly, the trial judge's error in leading the jury to believe that the People did not have to prove beyond a reasonable doubt that Cortijo's statements "were not a result of delusions" was not cured by his internally inconsistent instructions that the People had the burden to prove beyond a reasonable doubt that Cortijo's statements were truthful and that the burden never shifted to Cortijo. The improper "no" answer thus "`by itself so infected the entire trial that the resulting conviction violates due process.'" Henderson, 431 U.S. at 154 (quoting Cupp, 414 U.S. at 147). The Second Circuit's words in Doyle are almost precisely applicable here:

   "What influences juries, courts seldom know." [United States v. Farina, 184 F.2d 18, 21 (2d Cir.) (Frank, J., dissenting), cert. denied, 340 U.S. 875 (1950)]. We cannot be sure whether [the defendants'] jury actually misunderstood its Page 49 obligations under the presumption of innocence and the reasonable doubt standard. But, under the Boyde analysis and under Sullivan, we need not be sure. We need only determine whether there is a reasonable likelihood, even if less than a probability, that the jury misunderstood these principles of law, As discussed above, we are persuaded that the charge in its entirety created more than a possibility of jury misinterpretation and risked the factual error and unjust conviction against which Winship warned. We therefore hold that it created a reasonable likelihood that the jury misunderstood the reasonable doubt standard and the presumption of innocence.

  130 F.3d at 539 (emphasis added).

   In sum, there is a "reasonable likelihood" that the jury construed the trial judge's answer to its specific question as diluting the People's burden of proving beyond a reasonable doubt the truth of Cortijo's statements and potentially shifting some burden on this issue to Cortijo and thus that the jury "`applied the challenged instruction in a way' that violates the Constitution," Estelle, 502 U.S. at 72 (quoting Boyde, 494 U.S. at 380). The respondents do not argue that any error was harmless in light of additional evidence presented at trial. Nor could they, as Cortijo's "statements were the only direct evidence of his guilt and central to the People's case," Resp. Mem. at 28 n. 18.

   Of course, it is not sufficient to obtain a writ of habeas corpus merely because the state court incorrectly applied the "reasonable likelihood" standard elucidated in Estelle, Instead, Cortijo must demonstrate that the Appellate Division's decision was "contrary to, or involved an unreasonable application of" Estelle or other clearly established Supreme Court law, 28 U.S.C. § 2254(d). A state court decision involves an "unreasonable application" of Supreme Court precedent if the state court unreasonably applied Supreme Court law to the particular facts of a prisoner's case. Williams, 529 U.S. at 409. Thus, this Court must decide "whether the state court's application of clearly established federal law was objectively unreasonable" — not Page 50 whether the application was simply incorrect. Id. at 409-10. In other words, we must determine whether the Appellate Division was objectively unreasonable in implicitly deciding that there was no "reasonable likelihood" that the jury applied the trial court's instruction in a way that violated the Constitution.

   The Supreme Court has noted that "[t]he term `unreasonable' is . . . difficult to define," id at 410, and this Court has no easier time of doing so here — particularly since the governing legal rule to be applied is itself based on "reasonableness." But for the same reasons already described, this Court is persuaded that the Appellate Division's failure to conclude that there was at least a "reasonable likelihood" that the jury applied the instruction unconstitutionally represents "`[s]ome increment of incorrectness beyond error'" — even though that increment is not "`great,'" Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (alteration in original) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). There was simply too obvious a potential for the jury to have applied the trial court's instruction in a manner that violated the Constitution. Thus, the Appellate Division's decision upholding the instruction represents an "unreasonable application" of the standard set forth in Estelle, Conclusion

   For the foregoing reasons, the petition should be granted. The State of New York should be directed either to release Cortijo or to provide him with a new trial within 90 days.

  

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
   Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any Page 51 objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Richard C. Casey, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Casey. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).


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