By Terrence McCoy
By Allie Conti
By Chuck Strouse
By Scott Fishman
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By Ryan Yousefi
By Ciara LaVelle, Kat Bein, Carolina Del Busto, and Liz Tracy
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The written narrative from Detective Ottley's first interview with Marrero-Colon (conducted the morning of the shooting) reads: "Marrero-Colon stated that he looked away from David Berkofsky in an attempt to get out of his chair; however, due to the closeness of the arm guards of the chair he was sitting in, the butt of his gun became lodged. He stated as he was attempting to dislodge the gun butt of his weapon from the chair arm guard, he heard a sound that was familiar to him as a weapon being drawn from the holster." That's when Marrero-Colon says he first saw Berkofsky holding a gun.
A transcript of the afternoon interview gives a different account. Police: "When did you think the conversation was coming to a close?" Marrero-Colon: "When I told him, 'Listen, you know I don't have no hard feelings. We just maintain a normal relationship.' At this time, I kind of looked to the side. I don't know why I looked, but I looked to the side and all of a sudden I saw him -- that he got the pistol out."
In both accounts Marrero-Colon says he knocked the gun out of Berkofsky's hand and then tried to wrestle it away from the larger man, who dove to the floor and retrieved it. There was a shot, and Marrero-Colon says he ran out of the conference room and called police. Still the chair-arm discrepancy bothers Susan Berkofsky, as do other inconsistencies she found in the files compiled by police.
Detective Ottley, a Marine reservist, is on duty in Iraq and unavailable for comment. Other detectives from the homicide unit decline to answer questions about the discrepancies or about the Berkofsky investigation generally, saying it is their policy not to speak for the lead investigator on any case.
There are facts, and then there are facts. It is a fact, for instance, that Marrero-Colon passed a gunshot-residue test that morning. But it is also a fact that at least one person who investigated David Berkofsky's death believed Marrero-Colon may have washed his hands just after the shooting. That person was medical examiner Kathleen Enstice, and in the end she was Berkofsky's only advocate outside his circle of family and friends. In April 1999 she filed a report arguing that Berkofsky's death should remain unclassified pending further investigation. Now a medical examiner in Mobile, Alabama, Enstice says she still stands by her report, but declines further comment.
In the strongly worded account, titled "Difference of Opinion in Regard to Classification of Pending Case," Enstice lists a number of reasons for not classifying the shooting a suicide (see sidebar), including the fact that Berkofsky had no history of depression or mental illness and had a shopping list in his pocket because he was planning to do family errands that afternoon; that none of Marrero-Colon's former military colleagues, family, or friends were questioned by police; that Marrero-Colon's version of events "was not questioned by police," and on his attorney's advice he refused to take a polygraph test (a fact mentioned in Enstice's report but nowhere in the police documentation); and lastly that Marrero-Colon initiated the move to the conference room.
In August 1999 Roger Mittleman, Miami-Dade's chief medical examiner at the time of the Berkofsky investigation, wrote a memo overruling Enstice's report. Mittleman includes the following details regarding Berkofsky's gun: "David comes in with gun belt (fully armed). David has only worn his gun belt on 10 occasions for outside jobs but never wore the gun belt in the office."
Mittleman's implication, echoed in some of the reports written by detectives, is that Berkofsky's unusual decision to wear his gun indicated a kind of premeditation that seemed otherwise lacking. In fact Berkofsky's decision to wear his gun is presented in much of the investigatory work as one of the prime indicators that he was a man on the brink of violence. But in the same reports, Berkofsky's wife and Ruth Casal point out that Berkofsky had another reason for wearing his firearm: fear.
From a police report detailing an interview with Casal: "[Berkofsky] advised that he was worried about [Marrero-Colon] because during their meeting, [Marrero-Colon] became upset and began banging with a closed fist on the table. [Berkofsky] feared that [Marrero-Colon] was going to walk across the room and push him. He also feared [Marrero-Colon] since he carried a firearm and advised that if [Marrero-Colon] was to ever push him, he would immediately notify the police."
Even more to the point, Susan Berkofsky told police that she and her husband had a conversation the morning of his death about him wearing his weapon because he was afraid of Marrero-Colon. She stated to both police investigators and the customs officials who first notified her of her husband's death she "knew something terrible was going to happen" that day. She had had a dream the night before the shooting, a dream in which Marrero-Colon "went postal" and started shooting customs inspectors. She and David discussed the dream and he brought up the possibility of wearing his gun to work, though he concluded the conversation by telling her that it was "probably not a good idea." She had no inkling he'd actually taken the gun to work until the police came to her house that night.