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A simple “no” by a trial judge may lead to a new trial for a defendant who claimed he gave delusional confessions about murdering his father. Southern District Magistrate Judge Gabriel W. Gorenstein found that a judge’s answer to a jury question on the burden of proof misled the jury into thinking that defendant Eleutorio Cortijo was obligated to prove he was suffering from delusions when he confessed. Magistrate Judge Gorenstein found that juror confusion over the burden of proof violated Mr. Cortijo’s right to due process in Cortijo v. Bennett, 03 Civ. 5102. In a 51-page opinion, Magistrate Judge Gorenstein recommended that Southern District Judge Richard C. Casey grant Mr. Cortijo’s petition for a writ of habeas corpus, which would require the Manhattan District Attorney’s Office to retry Mr. Cortijo within 90 days or release him from the Elmira Correctional Facility, where he is serving a sentence of 25 years to life. Mr. Cortijo’s father, Jose Antonio Cortijo, was found dead of a gunshot wound on Dec. 12, 1977, in the sub-basement of the Manhattan office building where he worked as a superintendent. In the years following the murder, Eleutorio Cortijo made several incriminating statements, including to detectives who visited him in prison while he was serving a sentence on an unrelated matter. The sole witness called by the defense at the trial before Manhattan Supreme Court Justice Charles Solomon was a psychiatrist who testified that Mr. Cortijo was a paranoid schizophrenic who experienced hallucinations and heard voices. At one point while incarcerated in the 1980s, Mr. Cortijo refused to eat because he believed his food was being poisoned by people from the planet Venus. In 1992, he was arrested for assaulting two people outside the United Nations because he believed they were controlling his mind through a mechanical car. During deliberations, the jury sent Judge Solomon a note that read: “Must the People prove beyond a reasonable doubt the defendant’s statements were not the result of delusions?” “The answer is no,” the judge answered. “That doesn’t shift the burden 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.” After unsuccessful appeals in the state courts, Mr. Cortijo filed his habeas petition in the Southern District, arguing that 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” his right to due process. The state argued that the answer to the jury’s question did not impermissibly shift the burden of proof because it believed the jury was actually asking about “truth-inducing delusions.” The argument was referred to in shorthand by the magistrate judge as the “dragon argument,” where a man is motivated to confess to a real crime because he believes a dragon will kill him if he does not confess. But the magistrate judge said there was nothing to suggest that the jury was asking about a real confession prompted by a delusion. Instead, he said, the jury’s notes to the court “make it absolutely clear that the jury was referring to delusions that may have caused Cortijo to give false confessions.” The magistrate judge noted that the prosecution’s brief ” ‘essentially begins and ends with the ‘dragon argument.’ “ The prosecution, he said, makes “no argument that, if the jury’s question in fact means 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 instructions can be justified.” “First, the jury was not asking merely whether the prosecution bore a special burden of proof with respect to the truthfulness of the confessions,” he said. “The jury was also asking, by implication, whether Cortijo bore a burden of proof on this point.” The jury had been told a number of times that the burden was on the state, he said, and it “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,” he said. “In other words, when the jury was given a definite ‘no’ answer to its question, it could quite reasonably interpret that ‘no’ as meaning that Cortijo, not the People, bore some burden of proof as to the truthfulness or lack of truthfulness of the confessions.” The magistrate judge said it was up to the prosecution to prove the truthfulness of the confessions beyond a reasonable doubt in a case where the admissions were central to the prosecution, and where the jury apparently spent the “vast bulk” of its deliberations debating Mr. Cortijo’s mental state. Lawrence T. Hausman of The Legal Aid Society’s Criminal Appeals Bureau, who represented Mr. Cortijo on appeal along with Judith S. Stern, said the case was unique in that Mr. Cortijo was claiming his confessions were the result of delusions, leaving the burden on the prosecution to prove the statements were truthful. By contrast, Mr. Hausman noted, defendants who mount an insanity defense bear the burden of proof on their insanity. Magistrate Judge Gorenstein noted that juror confusion in this area is understandable. “A layperson might speculate that, even if the prosecution bore the burden of proving beyond a reasonable doubt the elements of the crime or even the truth of the confession, that rule might not apply where a defendant offered some specialized evidence to argue that the confession was not true,” he said. “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.” And even though Judge Solomon repeatedly admonished the jury about how the burden had not shifted, Judge Gorenstein said Second Circuit case law shows that “such repeated admonitions are not necessarily sufficient to cure jury confusion on the burden of proof.” Assistant District Attorney Mary C. Farrington represented the state. The Manhattan District Attorney’s Office declined to comment on the ruling.

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