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CORTIJO v. BENNETT

March 8, 2004.

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


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

In this petition brought pursuant to 28 U.S.C. § 2254, Eleutorio Cortijo ("Cortijo") seeks a writ of habeas corpus to set aside a judgment of conviction issued on October 5, 1999 by the Supreme Court of the State of New York, New York County. After a jury trial, Cortijo was convicted of one count of Murder in the Second Degree under N.Y. Penal Law § 125.25(1) and was sentenced to a prison term of 25 years to life. He is currently incarcerated at the Elmira Correctional Facility in Chemung County, New York pursuant to that judgment. For the reasons stated below, the petition should be granted. Page 2

I. BACKGROUND

  A. Evidence at Trial

  1. The Prosecution's Case

  The following evidence was presented by the prosecution at Cortijo's trial:
a. The Discovery of Jose Antonio Cortijo's Body
  The body of Cortijo's father, Jose Antonio Cortijo ("Jose"), was discovered on the morning of December 12, 1977 in the sub-basement of the office building in Manhattan where Jose had been employed as superintendent for over ten years. (Ramirez: Tr. 55-56; Parham: Tr. 115, 121, 183). Cortijo lived in a small room on the 15th floor of this building. (Parham: Tr. 103-04).

  Charles Parham, the building's concierge, discovered Jose's body. (Parham: Tr. 95, 121). He testified that Jose would normally come to work early in the morning, before Parham arrived for his shift at 8:00 a.m. (Parham: Tr. 101-02, 146-47, 192). When Jose arrived, he would unlock the front door of the building and the passenger elevator. (Parham: Tr. 146-47, 149). On the day of Jose's death, Parham arrived for work at the building between 7:30 and 8:00 a.m. (Parham: Tr. 115). Upon walking past the exterior entrance to the building's freight elevator, he saw that it was stopped on the ground floor. (Parham: Tr. 116-17). Parham found this strange because the freight elevator, which was manually operated and could not be called to a different floor, generally remained on the sub-basement floor. (Parham: Tr. 106, 116, 154, 176-77). Parham thought this meant that Jose had brought it to the ground floor and then accidently locked himself out as he exited. (Parham: Tr. 116-17, 176-77). Page 3

  Parham entered the building through the front entrance, which was unlocked, and took the passenger elevator, which was also unlocked, to the sub-basement. (Parham: Tr. 117, 171-72, 190). Jose's workshop, where Parham believed Jose would be, was in the sub-basement. (Parham: Tr. 106-07, 117-19). Upon exiting the elevator, he heard a radio blasting disco. music. (Parham: Tr. 119). While walking down the corridor toward Jose's workshop, he began to smell what was later determined to be burnt gunpowder. (Parham: Tr. 119-20; Amato: Tr. 310-11). Parham then saw what he thought was a pile of clothing on the floor in front of the entrance to Jose's workshop. (Parham: Tr. 119-21). Bending over to examine it, he realized that the pile was in fact Jose lying face down on the floor. (Parham: Tr. 121). At first, Parham thought that Jose had suffered a heart attack and so he shook him. (Parham: Tr. 121, 158). When he saw blood, he realized that part of Jose's head was gone. (Parham: Tr. 121, 158). He ran up the stairway and called the police. (Parham: Tr. 121-23, 172, 191).

  b. Police Investigation in the Immediate Aftermath

  Police Officers Albert Milite and James Reid responded to the call. (Milite: Tr. 199-200). The officers went to the sub-basement and found Jose lying face down in a pool of blood with a gunshot wound to the back of his head. (Milite: Tr. 200-01, 204). The officers noticed that Jose was holding a set of keys in his left hand. (Milite: Tr. 207-08). In Jose's workshop, Officer Milite found two shotguns and an inoperable pistol. (Milite: Tr. 205, 209-10). These were all subsequently dusted for fingerprints but none were recovered. (Milite: Tr. 207). The officers searched the sub-basement for drugs but found none. (Milite: Tr. 211-12). Two jackets were hanging on a coat rack in the workshop — one was a beige trench coat, which Jose had been wearing when he left for work that day, and the other was a leather jacket hanging on top of the Page 4 beige trench coat. (Ramirez: Tr. 64-68; Richard: Tr. 233-35). Jose did not own a leather jacket but Cortijo did. (Ramirez: Tr. 68).

  An autopsy performed on Jose the day after his death determined that he had died as a result of a single shotgun wound to the back of his head. (Gill: Tr. 85, 88, 90). The bullet entered the back right side of his head and exited the forehead, making a path upward and to the left. (Gill: Tr. 88-89). The pathologist called to testify at trial opined that the muzzle of the shotgun was no farther than two feet from the back of Jose's head when it was fired. (Gill: Tr. 90-91). Recovered from the track of the wound were pellets and plastic material, which were consistent with shotgun pellets and wadding. (Gill: Tr. 89). An examination of these materials revealed that they came from a 16-gauge shotgun. (Amato: Tr. 299-300, 303-05). The two shotguns found in the sub-basement were 12-gauge shotguns and were not used to fire the shot that killed Jose. (Amato: Tr. 308).

  c. Cortijo's Relationship with Jose

  Jose had been married to Lydia Cortijo, with whom he had four children including Cortijo. (Ramirez: Tr. 55-56; Vullo: Tr. 339). At some point prior to 1977, Jose and Lydia separated and Jose married Gregoria Cortijo, with whom he had four children — Louis Ramirez, Richard Cortijo, Raymond Cortijo, and Marisol Vega. (Ramirez: Tr. 54-55; Richard: Tr. 224-25). Jose's children with Gregoria did not learn about Jose's other family, including Cortijo, until 1974 or 1975. (Richard: Tr. 225).

  Early in 1977, Cortijo was living in Puerto Rico. with his mother and three siblings. (Richard: Tr. 226-27). At some point during 1977, when Cortijo was 17 years old, he moved to New York to live with Jose and Jose's family with Gregoria. (Ramirez: Tr. 57; Richard: Tr. 227-28). Page 5 Cortijo was not allowed to stay, however, either because their apartment was too small or because Gregoria believed that Cortijo was stealing from them. (Ramirez: Tr. 57-60; Richard: Tr. 228). Instead, Jose put Cortijo up in a small room on the 15th floor of the building where Jose worked as superintendent. (Parham: Tr. 103; Richard: Tr. 228-29). Cortijo still visited Jose's second family on occasion, however. (Ramirez: Tr. 59-60; Richard: Tr. 228, 231-32, 238).

  Cortijo and Jose had several arguments in the months immediately preceding Jose's death. Around Thanksgiving 1977, Cortijo was at Jose's apartment when Jose took him into a room and closed the door. (Ramirez: Tr. 61-62; Richard: Tr. 232). A loud argument ensued and Jose threatened to send Cortijo back to Puerto Rico. (Ramirez: Tr. 62-63; Richard: Tr. 232-33). When the door opened, Cortijo ran out, bleeding heavily from his face and holding his mouth and stomach. (Ramirez: Tr. 63; Richard: Tr. 232). Jose had a roll of quarters taped to the palm of his hand, which he had been carrying around for a week and had apparently used to strike Cortijo. (Ramirez: Tr. 63-64, 74-76). Later, at the end of November 1977, Jose told Parham that he was going to send Cortijo back to Puerto Rico. (Parham: Tr. 110-13). Jose said that he had to get Cortijo "out of there" before Christmas. (Parham: Tr. 112-13). Parham thought that Cortijo had also been made aware that his father intended to return him to Puerto Rico. (Parham: Tr. 111-12). On December 9, 1977 — the Friday before Jose's death — Parham saw and overheard several arguments between Jose and Cortijo. (Parham: Tr. 113-15, 160). At one point, Parham heard what he believed was a slap and thought that Jose was "kicking [Cortijo's] butt." (Parham: Tr. 115). Page 6

  d. Cortijo's Incriminating Statements

  Jose's murder remained unsolved until, many years after Jose's death, Cortijo made various statements indicating that he had killed his father. Cortijo moved to suppress these statements prior to trial. See Transcript of Hearing, June 11, 1998, at 63-74. His motion was denied, see People v. Cortijo, 684 N.Y.S.2d 435, 442 (Sup.Ct. 1998), and the statements were admitted.

  i. Statements to Richard Cortijo, Richard Cortijo ("Richard") is one of Jose's sons with Gregoria and thus Cortijo's half-brother. (Richard: Tr. 224). On November 28, 1986, Cortijo was released from Attica Correctional Facility in Attica, New York after serving a sentence on an unrelated conviction. (Richard: Tr. 239, 281). The next day, Cortijo visited Richard at his apartment and told Richard that he wanted to speak with him in private. (Richard: Tr. 239-41). During this conversation, Cortijo said to Richard, "I did it, I killed Popi [the name by which Jose was known to his children]. He wasn't a good father anyway." (Richard: Tr. 242, 268-69, 276-77). Richard asked Cortijo to repeat what he had said but Cortijo ran out of the apartment. (Richard: Tr. 242). The following day, Cortijo returned to Puerto Rico. (Richard: Tr. 276, 281).*fn1 Although Richard testified that he had no difficulty understanding Cortijo and that Cortijo did not appear to be under the influence of any drugs or alcohol, Richard did not say anything to authorities about Cortijo's statement for over ten years, until a detective investigating Jose's murder contacted him in April 1997. (Richard: Tr. 244-45, 251-53, 275, 278-79). Page 7

  By April 1997, Richard had a significant criminal history with felony and misdemeanor convictions for various narcotics and stolen-property offenses. (Richard: Tr. 218-22). In April 1997, Richard was serving a prison sentence at Ogdensburg Correctional Facility in St. Lawrence County, New York. (Richard: Tr. 252-54, 270). On April 3, 1997, Detective Frank Colaianni, who had been investigating Jose's murder, called Richard at Ogdensburg. (Richard: Tr. 270; Colaianni: Tr. 612-13). During their conversation, Detective Colaianni asked Richard what he knew about his father's murder. (Richard: Tr. 270). Richard told him of his conversation with Cortijo in November 1986 in which Cortijo said that he had killed their father. (Richard: Tr. 270-71).

  Another detective followed up with Richard in early 1998. On January 5, 1998, Detective Daniel Danaher interviewed Richard, who had recently been released from prison, at his parole office. (Richard: Tr. 255, 271-72; Danaher: Tr. 369, 372). Detective Danaher asked Richard about Cortijo's statement to him in November 1986. (Richard: Tr. 272; Danaher: Tr. 369-72). According to Detective Danaher, Richard responded that Cortijo had told him that "he killed our father because he was not a good father and that the father owed [Cortijo] money." (Danaher: Tr. 370).

  ii. Statements to Probation Officer Urania Vullo, In the meantime, in April 1995, Cortijo was convicted after a jury trial of a drug-related crime. (Vullo: Tr. 319, 322). On April 11, 1995, retired Probation Officer Urania Vullo conducted a routine pre-sentence interview of Cortijo. (Vullo: Tr. 316, 319-23). After asking him various preliminary questions, Vullo asked Cortijo about his mother. (Vullo: Tr. 327-30). Cortijo responded that she lived in Puerto Rico. Page 8 (Vullo: Tr. 330). Vullo then asked about Cortijo's father. (Vullo: Tr. 330, 341). Vullo recounted the ensuing conversation as follows:
He said I killed him. We both then stared at each other. He then said no, he was killed, someone killed him.
What happened to the person that killed him, he said I don't know. In an angry tone of voice he said I killed him, I killed him.
[I] said you killed him? There was silence for a few seconds. He then said someone killed him.
(Vullo: Tr. 341). Prior to this conversation, Vullo had received no information regarding Cortijo's father, including whether or not he was alive. (Vullo: Tr. 330).

  Vullo thereafter continued the interview without further questioning Cortijo regarding his statement. (Vullo: Tr. 331). When Vullo asked him about his mental health, Cortijo related that he had experienced psychiatric problems since the age of 16 and that he had suffered from suicidal ideations in the past, the most recent episode occurring two months earlier. (Vullo: Tr. 341-43). He also complained of having nightmares and of having difficulty returning to reality. (Vullo: Tr. 343). Cortijo stated that he was taking Navane — an anti-psychotic prescription medication used to help organize thought processes and to calm agitation — but Vullo testified that he did not appear to be under the influence of drugs or alcohol when she spoke with him. (Vullo: Tr. 332, 335-36, 343; Bergen Tr. 583-84).

  iii. Statements to Detective Frank Colaianni, Detective Colaianni became involved in the investigation during the summer of 1995 after Vullo contacted him and conveyed the substance of Cortijo's statement to her on April 11, 1995. (Colaianni: Tr. 612-13, 620). On October 12, 1995, he and two fellow officers visited Cortijo at Fishkill Correctional Facility in Page 9 Dutchess County, New York where Cortijo was serving a sentence on his April 1995 drug conviction. (Colaianni: Tr. 613). After the officers introduced themselves and told Cortijo that they were there to investigate his father's death, Cortijo stated — not in response to any particular question — that "he was hearing voices that said he shot his father and he heard a loud noise." (Colaianni: Tr. 616, 624). After Cortijo made this statement, one of the officers read Cortijo his Miranda warnings and asked him whether he was willing to answer any questions. (Colaianni: Tr. 616-18, 623). Cortijo refused to answer any questions but then stated — again, not in response to any particular question — that he had been sleeping on the subway the day his father was killed. (Colaianni: Tr. 618-19).

  iv. Statements to Detective Daniel Danaher, Two-and-a-half years later, on April 2, 1998, Detective Danaher and another detective went to Sing Sing Correctional Facility in Ossining, New York where Cortijo was serving a sentence on an unrelated conviction. (Danaher: Tr. 350-51). Detective Danaher read Cortijo his Miranda rights from a pre-printed Miranda card. (Danaher: Tr. 352-55). After being advised of his Miranda rights, Cortijo indicated that he was willing to answer questions and signed the Miranda card. (Danaher: Tr. 355). Detective Danaher then told Cortijo that "we are here to ask you about why you killed your father in 1977." (Danaher: Tr. 360). Cortijo stood up, placed both hands on the table, and said in a raised voice, "[Y]eah, I killed him, so what." (Danaher: Tr. 360). He then stated, "[W]hat the fuck are you guys going to do about it. You are the second guys to come up here and break my balls about this. I killed him. If I get taken to court I'll say the same thing." (Danaher: Tr. 360). Detective Danaher asked Cortijo why he killed his father and Cortijo responded, "I killed him because I felt like it." (Danaher: Tr. 360). Page 10

  Detective Danaher testified that this interview lasted five to seven minutes, during which Cortijo did not display any manifestations of drug and/or alcohol use and did not slur his speech or talk of hearing voices. (Danaher: Tr. 358-59, 361). Additionally, Detective Danaher testified that Cortijo appeared relaxed upon entering the interview room and only became agitated once the subject of his father's death was addressed. (Danaher: Tr. 358-61).

  2. Cortijo's Case

  Dr. Robert Berger — a board — certified psychiatrist and the director of forensic psychiatry at Bellevue Hospital — was the sole witness called by the defense. Dr. Berger provided his expert opinion concerning "whether there were factors that had contributed or had in some way undermined [Cortijo's] capacity, his ability to accurately relate, accurately recall, accurately perceive events in his life and then accurately relate those." (Berger: Tr. 404-05). Dr. Berger reviewed Cortijo's psychiatric and mental health records from examinations at Central New York Psychiatric Center ("CNYPC") in 1983 and 1984, Creedmoor Psychiatric Center in 1991, Rockland Psychiatric Center in 1992, Metropolitan Hospital Center in 1994, Rikers Island Health Services and Montefiore Medical Center in 1991 and 1995, and the Sing Sing Mental Health Unit of Central New York between 1995 and 1998. (Berger: Tr. 407-09). In addition, Dr. Berger reviewed Cortijo's criminal records, the police reports generated in connection with Jose's homicide, and some testimony before the grand jury. (Berger: Tr. 406-07).

  Dr. Berger diagnosed Cortijo as a paranoid schizophrenic. (Berger: Tr. 412-13). He defined schizophrenia as a chronic mental condition characterized by a gradual deterioration of an individual's functions over time. (Berger: Tr. 413). The symptoms of this condition, which include hallucinations, delusions, and hearing nonexistent voices, begin to emerge during late Page 11 adolescence. (Berger: Tr. 413-14). Dr. Berger defined a "delusion" as follows: "A delusion is an idea. It's an inaccurate false idea that the person maintains in spite of any logic or reason that he is confronted with still maintains that false idea, that's a delusion." (Berger: Tr. 414). An individual suffering from paranoid schizophrenia experiences varying degrees of stability, depending on whether the individual is going through an "acute exacerbation" period, in which the symptoms are more prevalent; whether the individual is consistently taking medication; and whether the individual is abusing drugs and/or alcohol. (Berger: Tr. 413-15, 474-75). An individual suffering from paranoid schizophrenia is capable of both telling the truth and lying, of both being accurate and inaccurate, and of both remembering events and not remembering events. (Berger: Tr. 475-76).

  Dr. Berger explained that, in light of Cortijo's contentious relationship with his father and in light of the fact that Cortijo was only 17 years old when his father died, Cortijo would have been experiencing feelings of guilt, a sense of responsibility in having perhaps at times wished his father dead, and a sense of ambivalence over the loss of his father on the one hand and increased independence on the other. (Berger: Tr. 420-21). Dr. Berger also noted that, based on medical records, Cortijo began hearing voices and experiencing sensations of lights flashing at him shortly after his father's death. (Berger: Tr. 421). He also indicated that these reactions would not have been uncommon for any adolescent experiencing the death of a family member. (Berger: Tr. 421).

  Dr. Berger's review of Cortijo's records revealed a longstanding history of symptoms associated with paranoid schizophrenia. Cortijo began experiencing auditory hallucinations and delusions during his youth. (Berger: Tr. 422-23). In 1983 and 1984, physicians described him as Page 12 being "irritable, negativistic and hosfile" and noted that he was "staring blankly, mumbling to himself, [and] completely disorganized and irrelevant in his thinking." (Berger: Tr. 555-56). For example, while at CNYPC in 1984, Cortijo refused to eat because he was under the belief that his food was being poisoned by people from the planet Venus. (Berger: Tr. 423, 556).

  Dr. Berger found it significant that the day after Cortijo's alleged confession to Richard, Cortijo was arrested for an assault that resulted from Cortijo's conclusion that a passenger on his flight to Puerto Rico had stolen money from him. (Berger: Tr. 424-25). Because of this incident, Cortijo spent several years in a federal medical center where he received treatment for his paranoid schizophrenia. (Berger: Tr. 425). Dr. Berger opined that, based on the airplane incident, Cortijo was experiencing active psychotic symptoms that impaired his sense of what was real when he made his statements to Richard. (Berger: Tr. 425).

  Cortijo pled guilty to menacing charges sometime in 1991 and was incarcerated at Rikers Island. (Berger: Tr. 426). Records from Rikers Island indicated that Cortijo's speech was "confused and rambling," which Dr. Berger cited as "one hallmark of an active phase of a schizophrenic illness." (Berger: Tr. 426). Records also indicated that Cortijo experienced a "constant assault" of delusions and hallucinations that affected "his ability to sense what has been real in his life and what [has not]." (Berger: Tr. 426). Cortijo was described in the records as being "delusional," which Dr. Berger characterized as "having these . . . fixed false beliefs and paranoid feeling[s] others are against" you. (Berger: Tr. 426).

  Cortijo was released from Rikers Island sometime in 1991 but was again arrested later that year for assaulting a couple who were picketing in front of the United Nations. (Berger: Tr. 427). Medical notes indicate that the attack was precipitated by Cortijo's belief that the two Page 13 individuals were controlling his mind through the use of a mechanical car. (Berger: Tr. 427). He was transferred to Creedmoor Psychiatric Center. (Berger: Tr. 428). There, he was described as having auditory hallucinations commanding him to hurt and kill others and as having a history of acting on such commands. (Berger: Tr. 428-29, 572). He also was described as experiencing suicidal and homicidal ideations, as having delusional and paranoid beliefs of others wanting to hurt him, and as feeling that he was being guided by both God and the Devil. (Berger: Tr. 429, 572-73). In addition, notes from Creedmoor indicate that Cortijo claimed to have been raised by adoptive parents and that he knew nothing about his biological parents except that he believed that these adoptive parents had killed his biological father. (Berger: Tr. 429-31). Cortijo indicated that this information came from voices inside his head. (Berger: Tr. 432-33). He also told his therapist, in March 1994, that the voices commanded him to kill his father. (Berger: Tr. 578).

  Dr. Berger explained that because Cortijo did not engage easily in treatment and often stopped taking his medications, he frequently maintained false beliefs, heard voices, and had hallucinations. (Berger: Tr. 426). According to Dr. Berger, this constant assault of distorted thoughts and ideas adversely affected Cortijo's ability to sense what was real and what was not, most notably around highly-charged emotional issues. (Berger: Tr. 426-27). Thus, Dr. Berger opined, Cortijo's distorted thinking undermined his ability to accurately reflect on and recall important, emotionally-charged events, leading him to believe extraordinarily bizarre things. (Berger: Tr. 427-28).

  Additionally, Dr. Berger spoke of an uncommon syndrome called Capgrass Syndrome or "Body Snatcher" Syndrome, where the afflicted person develops the delusion that a close Page 14 relative, frequently a parent, has been killed by an evil entity and that his or her body has been taken over by that entity. (Berger: Tr. 431-32, 551-53). Dr. Berger believed that Cortijo's father's death may have precipitated the development of this syndrome in Cortijo. (Berger: Tr. 432, 553).

  Dr. Berger reviewed Cortijo's medical records for the months immediately prior to his inculpatory statements to Vullo on April 11, 1995. (Berger: Tr. 433-34). In January 1995, it was recorded that Cortijo was hearing voices, actively hallucinating, and seeing a powerful light coming from behind him. (Berger: Tr. 434-35). Cortijo had been experiencing these symptoms for many years but they became worse after his father's death. (Berger: Tr. 434). On February 2, 1995, Cortijo's therapist noted that he was "psychotic" and unable to distinguish reality from fantasy. (Berger: Tr. 435-37). The therapist described Cortijo as speaking about his father, about a light shining inside his head, about his experience traveling to outer space, and about his belief that he was at one moment traveling on a subway and the next moment in Nicaragua fighting on the front lines. (Berger: Tr. 435-36). In mid-February 1995, Cortijo spoke about having been homeless since his father's death. (Berger: Tr. 437). While speaking about his father's death, Cortijo began acting irrationally. (Berger: Tr. 437-38). On March 8 and 11, 1995, Cortijo was described as being delusional and paranoid, as experiencing auditory hallucinations, and as acting quite angrily. (Berger: Tr. 450-51, 528). On March 14, Cortijo talked about his all — knowing, all — seeing third eye and about being brainwashed so that his thoughts were not his own. (Berger: Tr. 451, 528). He also spoke of hearing voices telling him that he should prepare to die, of having shot himself in the head several times, of having out-of-body experiences, and of hearing his mother's voice stating that he had been told to, and in fact did, kill someone in the Page 15 past. (Bergen Tr. 452, 577). On March 23, Cortijo was documented as "experiencing dreams that turn into convictions." (Berger: Tr. 453). Dr. Berger opined that Cortijo's statements and actions demonstrated that the death of his father was the pivotal point of Cortijo's life. (Berger: Tr. 435-37).

  On April 11, 1995, Cortijo made his inculpatory statements to Vullo. Dr. Berger testified that Cortijo did not elaborate on his statement that he had killed his father and it was thus impossible to know what Cortijo was thinking when he made the statement. (Berger: Tr. 453). Because of Cortijo's 20-year period of illogical thinking, however, Dr. Berger opined that his statement to Vullo could have been a distortion. (Berger: Tr. 452-53).

  Dr. Berger also examined records from October 12, 1995, when Detective Colaianni and other officers visited Cortijo at Fishkill Correctional Facility. (Berger: Tr. 454). Dr. Berger testified that Cortijo made two very different statements that day: one, that he was hearing voices that said he had shot his father and, two, that he had been sleeping on the subway when his father was shot. (Berger: Tr. 454-55). Dr. Berger opined that these two diverging accounts demonstrated that Cortijo was experiencing mixed messages typical of a schizophrenic. (Berger: Tr. 454). In light of Cortijo's history of hearing voices, Dr. Berger indicated that it was possible that he had heard a voice telling him that he had shot his father and that he had then incorporated it as the explanation of what had happened to his father. (Berger: Tr. 455).

  Concerning Cortijo's statements to Detective Danaher on April 2, 1998, Dr. Berger testified that Cortijo had been relatively stable while at Sing Sing Correctional Facility and that he had been taking anti-psychotic medication on a consistent basis. (Berger: Tr. 458). As a result, Dr. Berger thought that this was Cortijo's "clearest period," with records describing him Page 16 as acting coherently and logically and as displaying no acute symptoms of schizophrenia. (Berger: Tr. 458). However, when Detective Danaher visited and asked him why he had killed his father, Cortijo's response was very angry and hosfile, which Dr. Berger attributed to the emotional nature of the issue and Cortijo's protracted mental illness. (Berger: Tr. 459-61). Dr. Berger believed that Cortijo did not want to discuss the subject and that his hosfile response was his way of making that clear. (Berger: Tr. 460). Dr. Berger concluded that these indicators demonstrated that Cortijo was again experiencing distorted and illogical ideas in relation to his father's death. (Berger: Tr. 460-61).

  On cross-examination, Dr. Berger acknowledged that a person who committed a horrendous act could cope with the reality of his conduct in a number of ways, including repressing it, rationalizing it, and/or confessing to it, and that the first option, repression, could exact a terrible price on the individual's physical and mental health. (Berger: Tr. 477-80). Additionally, Dr. Berger acknowledged that a person suffering from paranoid schizophrenia could be capable of both telling the truth and lying and of giving both accurate and inaccurate statements in response to questions. (Berger: Tr. 475-76, 523, 544-45). Nonetheless, Dr. Berger concluded that, although Cortijo may have given truthful answers to most questions posed to ...


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