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.
A. Evidence at Trial
1. The Prosecution's Case
The following evidence was presented by the prosecution at Cortijo's
a. The Discovery of Jose Antonio Cortijo's Body
The body of Cortijo's father, Jose Antonio Cortijo ("Jose"), was
discovered on the morning of December 12, 1977 in the sub-basement of the
office building in Manhattan where Jose had been employed as
superintendent for over ten years. (Ramirez: Tr. 55-56; Parham: Tr. 115,
121, 183). Cortijo lived in a small room on the 15th floor of this
building. (Parham: Tr. 103-04).
Charles Parham, the building's concierge, discovered Jose's body.
(Parham: Tr. 95, 121). He testified that Jose would normally come to work
early in the morning, before Parham arrived for his shift at 8:00 a.m.
(Parham: Tr. 101-02, 146-47, 192). When Jose arrived, he would unlock the
front door of the building and the passenger elevator. (Parham: Tr.
146-47, 149). On the day of Jose's death, Parham arrived for work at the
building between 7:30 and 8:00 a.m. (Parham: Tr. 115). Upon walking past
the exterior entrance to the building's freight elevator, he saw that it
was stopped on the ground floor. (Parham: Tr. 116-17). Parham found this
strange because the freight elevator, which was manually operated and
could not be called to a different floor, generally remained on the
sub-basement floor. (Parham: Tr. 106, 116, 154, 176-77). Parham thought
this meant that Jose had brought it to the ground floor and then
accidently locked himself out as he exited. (Parham: Tr. 116-17, 176-77).
Parham entered the building through the front entrance, which was
unlocked, and took the passenger elevator, which was also unlocked, to
the sub-basement. (Parham: Tr. 117, 171-72, 190). Jose's workshop, where
Parham believed Jose would be, was in the sub-basement. (Parham: Tr.
106-07, 117-19). Upon exiting the elevator, he heard a radio blasting
disco. music. (Parham: Tr. 119). While walking down the corridor toward
Jose's workshop, he began to smell what was later determined to be burnt
gunpowder. (Parham: Tr. 119-20; Amato: Tr. 310-11). Parham then saw what
he thought was a pile of clothing on the floor in front of the entrance
to Jose's workshop. (Parham: Tr. 119-21). Bending over to examine it, he
realized that the pile was in fact Jose lying face down on the floor.
(Parham: Tr. 121). At first, Parham thought that Jose had suffered a
heart attack and so he shook him. (Parham: Tr. 121, 158). When he saw
blood, he realized that part of Jose's head was gone. (Parham: Tr. 121,
158). He ran up the stairway and called the police. (Parham: Tr. 121-23,
b. Police Investigation in the Immediate Aftermath
Police Officers Albert Milite and James Reid responded to the call.
(Milite: Tr. 199-200). The officers went to the sub-basement and found
Jose lying face down in a pool of blood with a gunshot wound to the back
of his head. (Milite: Tr. 200-01, 204). The officers noticed that Jose
was holding a set of keys in his left hand. (Milite: Tr. 207-08). In
Jose's workshop, Officer Milite found two shotguns and an inoperable
pistol. (Milite: Tr. 205, 209-10). These were all subsequently dusted for
fingerprints but none were recovered. (Milite: Tr. 207). The officers
searched the sub-basement for drugs but found none. (Milite: Tr. 211-12).
Two jackets were hanging on a coat rack in the workshop one was a
beige trench coat, which Jose had been wearing when he left for work that
day, and the other was a leather jacket hanging on top of the
beige trench coat. (Ramirez: Tr. 64-68; Richard: Tr. 233-35). Jose
did not own a leather jacket but Cortijo did. (Ramirez: Tr. 68).
An autopsy performed on Jose the day after his death determined that he
had died as a result of a single shotgun wound to the back of his head.
(Gill: Tr. 85, 88, 90). The bullet entered the back right side of his
head and exited the forehead, making a path upward and to the left.
(Gill: Tr. 88-89). The pathologist called to testify at trial opined that
the muzzle of the shotgun was no farther than two feet from the back of
Jose's head when it was fired. (Gill: Tr. 90-91). Recovered from the
track of the wound were pellets and plastic material, which were
consistent with shotgun pellets and wadding. (Gill: Tr. 89). An
examination of these materials revealed that they came from a 16-gauge
shotgun. (Amato: Tr. 299-300, 303-05). The two shotguns found in the
sub-basement were 12-gauge shotguns and were not used to fire the shot
that killed Jose. (Amato: Tr. 308).
c. Cortijo's Relationship with Jose
Jose had been married to Lydia Cortijo, with whom he had four children
including Cortijo. (Ramirez: Tr. 55-56; Vullo: Tr. 339). At some point
prior to 1977, Jose and Lydia separated and Jose married Gregoria
Cortijo, with whom he had four children Louis Ramirez, Richard
Cortijo, Raymond Cortijo, and Marisol Vega. (Ramirez: Tr. 54-55; Richard:
Tr. 224-25). Jose's children with Gregoria did not learn about Jose's
other family, including Cortijo, until 1974 or 1975. (Richard: Tr. 225).
Early in 1977, Cortijo was living in Puerto Rico. with his mother and
three siblings. (Richard: Tr. 226-27). At some point during 1977, when
Cortijo was 17 years old, he moved to New York to live with Jose and
Jose's family with Gregoria. (Ramirez: Tr. 57; Richard: Tr. 227-28).
Cortijo was not allowed to stay, however, either because their apartment
was too small or because Gregoria believed that Cortijo was stealing from
them. (Ramirez: Tr. 57-60; Richard: Tr. 228). Instead, Jose put Cortijo up
in a small room on the 15th floor of the building where Jose worked as
superintendent. (Parham: Tr. 103; Richard: Tr. 228-29). Cortijo still
visited Jose's second family on occasion, however. (Ramirez: Tr. 59-60;
Richard: Tr. 228, 231-32, 238).
Cortijo and Jose had several arguments in the months immediately
preceding Jose's death. Around Thanksgiving 1977, Cortijo was at Jose's
apartment when Jose took him into a room and closed the door. (Ramirez:
Tr. 61-62; Richard: Tr. 232). A loud argument ensued and Jose threatened
to send Cortijo back to Puerto Rico. (Ramirez: Tr. 62-63; Richard: Tr.
232-33). When the door opened, Cortijo ran out, bleeding heavily from his
face and holding his mouth and stomach. (Ramirez: Tr. 63; Richard: Tr.
232). Jose had a roll of quarters taped to the palm of his hand, which he
had been carrying around for a week and had apparently used to strike
Cortijo. (Ramirez: Tr. 63-64, 74-76). Later, at the end of November
1977, Jose told Parham that he was going to send Cortijo back to Puerto
Rico. (Parham: Tr. 110-13). Jose said that he had to get Cortijo "out of
there" before Christmas. (Parham: Tr. 112-13). Parham thought that
Cortijo had also been made aware that his father intended to return him
to Puerto Rico. (Parham: Tr. 111-12). On December 9, 1977 the Friday
before Jose's death Parham saw and overheard several arguments between
Jose and Cortijo. (Parham: Tr. 113-15, 160). At one point, Parham heard
what he believed was a slap and thought that Jose was "kicking
[Cortijo's] butt." (Parham: Tr. 115).
d. Cortijo's Incriminating Statements
Jose's murder remained unsolved until, many years after Jose's death,
Cortijo made various statements indicating that he had killed his
father. Cortijo moved to suppress these statements prior to trial. See
Transcript of Hearing, June 11, 1998, at 63-74. His motion was denied,
see People v. Cortijo, 684 N.Y.S.2d 435, 442 (Sup.Ct. 1998), and the
statements were admitted.
i. Statements to Richard Cortijo, Richard Cortijo ("Richard") is one of
Jose's sons with Gregoria and thus Cortijo's half-brother. (Richard: Tr.
224). On November 28, 1986, Cortijo was released from Attica Correctional
Facility in Attica, New York after serving a sentence on an unrelated
conviction. (Richard: Tr. 239, 281). The next day, Cortijo visited
Richard at his apartment and told Richard that he wanted to speak with
him in private. (Richard: Tr. 239-41). During this conversation, Cortijo
said to Richard, "I did it, I killed Popi [the name by which Jose was
known to his children]. He wasn't a good father anyway." (Richard: Tr.
242, 268-69, 276-77). Richard asked Cortijo to repeat what he had said
but Cortijo ran out of the apartment. (Richard: Tr. 242). The following
day, Cortijo returned to Puerto Rico. (Richard: Tr. 276, 281).*fn1
Although Richard testified that he had no difficulty understanding
Cortijo and that Cortijo did not appear to be under the influence of any
drugs or alcohol, Richard did not say anything to authorities about
Cortijo's statement for over ten years, until a detective investigating
Jose's murder contacted him in April 1997. (Richard: Tr. 244-45, 251-53,
By April 1997, Richard had a significant criminal history with felony
and misdemeanor convictions for various narcotics and stolen-property
offenses. (Richard: Tr. 218-22). In April 1997, Richard was serving a
prison sentence at Ogdensburg Correctional Facility in St. Lawrence
County, New York. (Richard: Tr. 252-54, 270). On April 3, 1997, Detective
Frank Colaianni, who had been investigating Jose's murder, called Richard
at Ogdensburg. (Richard: Tr. 270; Colaianni: Tr. 612-13). During their
conversation, Detective Colaianni asked Richard what he knew about his
father's murder. (Richard: Tr. 270). Richard told him of his conversation
with Cortijo in November 1986 in which Cortijo said that he had killed
their father. (Richard: Tr. 270-71).
Another detective followed up with Richard in early 1998. On January 5,
1998, Detective Daniel Danaher interviewed Richard, who had recently been
released from prison, at his parole office. (Richard: Tr. 255, 271-72;
Danaher: Tr. 369, 372). Detective Danaher asked Richard about Cortijo's
statement to him in November 1986. (Richard: Tr. 272; Danaher: Tr.
369-72). According to Detective Danaher, Richard responded that Cortijo
had told him that "he killed our father because he was not a good father
and that the father owed [Cortijo] money." (Danaher: Tr. 370).
ii. Statements to Probation Officer Urania Vullo, In the meantime, in
April 1995, Cortijo was convicted after a jury trial of a drug-related
crime. (Vullo: Tr. 319, 322). On April 11, 1995, retired Probation
Officer Urania Vullo conducted a routine pre-sentence interview of
Cortijo. (Vullo: Tr. 316, 319-23). After asking him various preliminary
questions, Vullo asked Cortijo about his mother. (Vullo: Tr. 327-30).
Cortijo responded that she lived in Puerto Rico.
(Vullo: Tr. 330). Vullo then asked about Cortijo's father. (Vullo:
Tr. 330, 341). Vullo recounted the ensuing conversation as follows:
He said I killed him. We both then stared at each
other. He then said no, he was killed, someone killed
What happened to the person that killed him, he
said I don't know. In an angry tone of voice he
said I killed him, I killed him.
[I] said you killed him? There was silence for a
few seconds. He then said someone killed him.
(Vullo: Tr. 341). Prior to this conversation, Vullo had received no
information regarding Cortijo's father, including whether or not he was
alive. (Vullo: Tr. 330).
Vullo thereafter continued the interview without further questioning
Cortijo regarding his statement. (Vullo: Tr. 331). When Vullo asked him
about his mental health, Cortijo related that he had experienced
psychiatric problems since the age of 16 and that he had suffered from
suicidal ideations in the past, the most recent episode occurring two
months earlier. (Vullo: Tr. 341-43). He also complained of having
nightmares and of having difficulty returning to reality. (Vullo: Tr.
343). Cortijo stated that he was taking Navane an anti-psychotic
prescription medication used to help organize thought processes and to
calm agitation but Vullo testified that he did not appear to be
under the influence of drugs or alcohol when she spoke with him. (Vullo:
Tr. 332, 335-36, 343; Bergen Tr. 583-84).
iii. Statements to Detective Frank Colaianni, Detective Colaianni
became involved in the investigation during the summer of 1995 after
Vullo contacted him and conveyed the substance of Cortijo's statement to
her on April 11, 1995. (Colaianni: Tr. 612-13, 620). On October 12,
1995, he and two fellow officers visited Cortijo at Fishkill Correctional
Dutchess County, New York where Cortijo was serving a sentence on his
April 1995 drug conviction. (Colaianni: Tr. 613). After the officers
introduced themselves and told Cortijo that they were there to
investigate his father's death, Cortijo stated not in response to any
particular question that "he was hearing voices that said he shot his
father and he heard a loud noise." (Colaianni: Tr. 616, 624). After
Cortijo made this statement, one of the officers read Cortijo his
Miranda warnings and asked him whether he was willing to answer any
questions. (Colaianni: Tr. 616-18, 623). Cortijo refused to answer any
questions but then stated again, not in response to any particular
question that he had been sleeping on the subway the day his father was
killed. (Colaianni: Tr. 618-19).
iv. Statements to Detective Daniel Danaher, Two-and-a-half years
later, on April 2, 1998, Detective Danaher and another detective went to
Sing Sing Correctional Facility in Ossining, New York where Cortijo was
serving a sentence on an unrelated conviction. (Danaher: Tr. 350-51).
Detective Danaher read Cortijo his Miranda rights from a pre-printed
Miranda card. (Danaher: Tr. 352-55). After being advised of his Miranda
rights, Cortijo indicated that he was willing to answer questions and
signed the Miranda card. (Danaher: Tr. 355). Detective Danaher then told
Cortijo that "we are here to ask you about why you killed your father in
1977." (Danaher: Tr. 360). Cortijo stood up, placed both hands on the
table, and said in a raised voice, "[Y]eah, I killed him, so what."
(Danaher: Tr. 360). He then stated, "[W]hat the fuck are you guys going
to do about it. You are the second guys to come up here and break my
balls about this. I killed him. If I get taken to court I'll say the same
thing." (Danaher: Tr. 360). Detective Danaher asked Cortijo why he killed
his father and Cortijo responded, "I killed him because I felt like it."
(Danaher: Tr. 360).
Detective Danaher testified that this interview lasted five to seven
minutes, during which Cortijo did not display any manifestations of drug
and/or alcohol use and did not slur his speech or talk of hearing voices.
(Danaher: Tr. 358-59, 361). Additionally, Detective Danaher testified
that Cortijo appeared relaxed upon entering the interview room and only
became agitated once the subject of his father's death was addressed.
(Danaher: Tr. 358-61).
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
adolescence. (Berger: Tr. 413-14). Dr. Berger defined a "delusion" as
follows: "A delusion is an idea. It's an inaccurate false idea that the
person maintains in spite of any logic or reason that he is confronted
with still maintains that false idea, that's a delusion." (Berger: Tr.
414). An individual suffering from paranoid schizophrenia experiences
varying degrees of stability, depending on whether the individual is
going through an "acute exacerbation" period, in which the symptoms are
more prevalent; whether the individual is consistently taking medication;
and whether the individual is abusing drugs and/or alcohol. (Berger: Tr.
413-15, 474-75). An individual suffering from paranoid schizophrenia is
capable of both telling the truth and lying, of both being accurate and
inaccurate, and of both remembering events and not remembering events.
(Berger: Tr. 475-76).
Dr. Berger explained that, in light of Cortijo's contentious
relationship with his father and in light of the fact that Cortijo was
only 17 years old when his father died, Cortijo would have been
experiencing feelings of guilt, a sense of responsibility in having
perhaps at times wished his father dead, and a sense of ambivalence over
the loss of his father on the one hand and increased independence on the
other. (Berger: Tr. 420-21). Dr. Berger also noted that, based on medical
records, Cortijo began hearing voices and experiencing sensations of
lights flashing at him shortly after his father's death. (Berger: Tr.
421). He also indicated that these reactions would not have been uncommon
for any adolescent experiencing the death of a family member. (Berger:
Dr. Berger's review of Cortijo's records revealed a longstanding
history of symptoms associated with paranoid schizophrenia. Cortijo began
experiencing auditory hallucinations and delusions during his youth.
(Berger: Tr. 422-23). In 1983 and 1984, physicians described him as
being "irritable, negativistic and hosfile" and noted that he was
"staring blankly, mumbling to himself, [and] completely disorganized and
irrelevant in his thinking." (Berger: Tr. 555-56). For example, while at
CNYPC in 1984, Cortijo refused to eat because he was under the belief
that his food was being poisoned by people from the planet Venus.
(Berger: Tr. 423, 556).
Dr. Berger found it significant that the day after Cortijo's alleged
confession to Richard, Cortijo was arrested for an assault that resulted
from Cortijo's conclusion that a passenger on his flight to Puerto Rico
had stolen money from him. (Berger: Tr. 424-25). Because of this
incident, Cortijo spent several years in a federal medical center where
he received treatment for his paranoid schizophrenia. (Berger: Tr. 425).
Dr. Berger opined that, based on the airplane incident, Cortijo was
experiencing active psychotic symptoms that impaired his sense of what
was real when he made his statements to Richard. (Berger: Tr. 425).
Cortijo pled guilty to menacing charges sometime in 1991 and was
incarcerated at Rikers Island. (Berger: Tr. 426). Records from Rikers
Island indicated that Cortijo's speech was "confused and rambling," which
Dr. Berger cited as "one hallmark of an active phase of a schizophrenic
illness." (Berger: Tr. 426). Records also indicated that Cortijo
experienced a "constant assault" of delusions and hallucinations that
affected "his ability to sense what has been real in his life and what
[has not]." (Berger: Tr. 426). Cortijo was described in the records as
being "delusional," which Dr. Berger characterized as "having these . . .
fixed false beliefs and paranoid feeling[s] others are against" you.
(Berger: Tr. 426).
Cortijo was released from Rikers Island sometime in 1991 but was again
arrested later that year for assaulting a couple who were picketing in
front of the United Nations. (Berger: Tr. 427). Medical notes indicate
that the attack was precipitated by Cortijo's belief that the two
individuals were controlling his mind through the use of a mechanical
car. (Berger: Tr. 427). He was transferred to Creedmoor Psychiatric
Center. (Berger: Tr. 428). There, he was described as having auditory
hallucinations commanding him to hurt and kill others and as having a
history of acting on such commands. (Berger: Tr. 428-29, 572). He also
was described as experiencing suicidal and homicidal ideations, as having
delusional and paranoid beliefs of others wanting to hurt him, and as
feeling that he was being guided by both God and the Devil. (Berger: Tr.
429, 572-73). In addition, notes from Creedmoor indicate that Cortijo
claimed to have been raised by adoptive parents and that he knew nothing
about his biological parents except that he believed that these adoptive
parents had killed his biological father. (Berger: Tr. 429-31). Cortijo
indicated that this information came from voices inside his head.
(Berger: Tr. 432-33). He also told his therapist, in March 1994, that the
voices commanded him to kill his father. (Berger: Tr. 578).
Dr. Berger explained that because Cortijo did not engage easily in
treatment and often stopped taking his medications, he frequently
maintained false beliefs, heard voices, and had hallucinations. (Berger:
Tr. 426). According to Dr. Berger, this constant assault of distorted
thoughts and ideas adversely affected Cortijo's ability to sense what was
real and what was not, most notably around highly-charged emotional
issues. (Berger: Tr. 426-27). Thus, Dr. Berger opined, Cortijo's
distorted thinking undermined his ability to accurately reflect on and
recall important, emotionally-charged events, leading him to believe
extraordinarily bizarre things. (Berger: Tr. 427-28).
Additionally, Dr. Berger spoke of an uncommon syndrome called Capgrass
Syndrome or "Body Snatcher" Syndrome, where the afflicted person develops
the delusion that a close
relative, frequently a parent, has been killed by an evil entity
and that his or her body has been taken over by that entity. (Berger: Tr.
431-32, 551-53). Dr. Berger believed that Cortijo's father's death may
have precipitated the development of this syndrome in Cortijo. (Berger:
Tr. 432, 553).
Dr. Berger reviewed Cortijo's medical records for the months
immediately prior to his inculpatory statements to Vullo on April 11,
1995. (Berger: Tr. 433-34). In January 1995, it was recorded that Cortijo
was hearing voices, actively hallucinating, and seeing a powerful light
coming from behind him. (Berger: Tr. 434-35). Cortijo had been
experiencing these symptoms for many years but they became worse after
his father's death. (Berger: Tr. 434). On February 2, 1995, Cortijo's
therapist noted that he was "psychotic" and unable to distinguish reality
from fantasy. (Berger: Tr. 435-37). The therapist described Cortijo as
speaking about his father, about a light shining inside his head, about
his experience traveling to outer space, and about his belief that he was
at one moment traveling on a subway and the next moment in Nicaragua
fighting on the front lines. (Berger: Tr. 435-36). In mid-February 1995,
Cortijo spoke about having been homeless since his father's death.
(Berger: Tr. 437). While speaking about his father's death, Cortijo began
acting irrationally. (Berger: Tr. 437-38). On March 8 and 11, 1995,
Cortijo was described as being delusional and paranoid, as experiencing
auditory hallucinations, and as acting quite angrily. (Berger: Tr.
450-51, 528). On March 14, Cortijo talked about his all knowing, all
seeing third eye and about being brainwashed so that his thoughts were
not his own. (Berger: Tr. 451, 528). He also spoke of hearing voices
telling him that he should prepare to die, of having shot himself in the
head several times, of having out-of-body experiences, and of hearing his
mother's voice stating that he had been told to, and in fact did, kill
someone in the
past. (Bergen Tr. 452, 577). On March 23, Cortijo was documented as
"experiencing dreams that turn into convictions." (Berger: Tr. 453). Dr.
Berger opined that Cortijo's statements and actions demonstrated that the
death of his father was the pivotal point of Cortijo's life. (Berger: Tr.
On April 11, 1995, Cortijo made his inculpatory statements to Vullo.
Dr. Berger testified that Cortijo did not elaborate on his statement that
he had killed his father and it was thus impossible to know what Cortijo
was thinking when he made the statement. (Berger: Tr. 453). Because of
Cortijo's 20-year period of illogical thinking, however, Dr. Berger
opined that his statement to Vullo could have been a distortion. (Berger:
Dr. Berger also examined records from October 12, 1995, when Detective
Colaianni and other officers visited Cortijo at Fishkill Correctional
Facility. (Berger: Tr. 454). Dr. Berger testified that Cortijo made two
very different statements that day: one, that he was hearing voices that
said he had shot his father and, two, that he had been sleeping on the
subway when his father was shot. (Berger: Tr. 454-55). Dr. Berger opined
that these two diverging accounts demonstrated that Cortijo was
experiencing mixed messages typical of a schizophrenic. (Berger: Tr.
454). In light of Cortijo's history of hearing voices, Dr. Berger
indicated that it was possible that he had heard a voice telling him that
he had shot his father and that he had then incorporated it as the
explanation of what had happened to his father. (Berger: Tr. 455).
Concerning Cortijo's statements to Detective Danaher on April 2, 1998,
Dr. Berger testified that Cortijo had been relatively stable while at
Sing Sing Correctional Facility and that he had been taking
anti-psychotic medication on a consistent basis. (Berger: Tr. 458). As a
result, Dr. Berger thought that this was Cortijo's "clearest period,"
with records describing him
as acting coherently and logically and as displaying no acute symptoms of
schizophrenia. (Berger: Tr. 458). However, when Detective Danaher visited
and asked him why he had killed his father, Cortijo's response was very
angry and hosfile, which Dr. Berger attributed to the emotional nature of
the issue and Cortijo's protracted mental illness. (Berger: Tr. 459-61).
Dr. Berger believed that Cortijo did not want to discuss the subject and
that his hosfile response was his way of making that clear. (Berger: Tr.
460). Dr. Berger concluded that these indicators demonstrated that
Cortijo was again experiencing distorted and illogical ideas in relation
to his father's death. (Berger: Tr. 460-61).
On cross-examination, Dr. Berger acknowledged that a person who
committed a horrendous act could cope with the reality of his conduct in
a number of ways, including repressing it, rationalizing it, and/or
confessing to it, and that the first option, repression, could exact a
terrible price on the individual's physical and mental health. (Berger:
Tr. 477-80). Additionally, Dr. Berger acknowledged that a person
suffering from paranoid schizophrenia could be capable of both telling
the truth and lying and of giving both accurate and inaccurate statements
in response to questions. (Berger: Tr. 475-76, 523, 544-45). Nonetheless,
Dr. Berger concluded that, although Cortijo may have given truthful
answers to most questions posed to 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,
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).
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
. . .
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
prosecution] proved that his statements are
truthful[?] The answer is no, not now, not ever. It
cannot be done.
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).
The prosecutor's final reason, and "the most important powerful
persuasive argument of all" (Tr. 728), derived from the testimony of Dr.
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
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
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:
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
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.
(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
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.
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
(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
(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
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
(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
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
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
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
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.
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.
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
(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
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).
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.
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)
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.
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
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
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
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
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
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
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.
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
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
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
(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
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
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
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
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
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
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
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
523-24 (1979). In keeping with this principle, the Second Circuit has
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.
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
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
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
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
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
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
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
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
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).
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.
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.
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
[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
"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
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
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,
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
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