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In addition to assuming that Berkofsky's decision to wear his gun evidenced a plan to kill himself, Mittleman makes two other claims in the "Motive" section of his memo. The first is "acute mental turmoil related to work and possibly other issues in the decedent's life." Among the issues cited by Mittleman was the computer system at Berkofsky's office, which was causing "extreme stress"; and the fact that at the office "there was a perception that new administrators were micro-managing without know-how."
Are there more ubiquitous problems in the white-collar workplace than cruddy computers and autocratic bosses? "He discussed problems at work but he wasn't coming unglued about it," Susan Berkofsky says. "He wasn't going nuts. We were hanging out on the couch the night before he died, and it was just like a lot of other nights." So while Berkofsky's relatively ordinary gripes about work were portrayed by investigators as the underpinnings of a suicidal mindset, assertions by co-workers that Marrero-Colon had been having personal troubles, including a specific claim by Casal that one of Marrero-Colon's friends had killed himself over the holidays, were never followed up.
The second item listed under "Motive" in the Mittleman memo was this: "José represented a father figure and David had disappointed a 'father.'" This claim is supported only by Marrero-Colon's account of the deadly meeting in the conference room.
Marrero-Colon would not speak with New Times about David Berkofsky, but according to statements he gave to police, he sat in the conference room and listened as Berkofsky launched into a bizarre confessional. Berkofsky said he knew he should have backed up Marrero-Colon with regard to Ruth Casal but he just didn't have the guts, according to Marrero-Colon. His inability to side with Marrero-Colon was a betrayal because he saw him as a father figure. "He wished that he could be like me," Marrero-Colon told police. "He respected my character, my morals, my loyalty, that I was an excellent worker."
Susan Berkofsky says her husband had a difficult childhood, that his father was an emotionally and physically abusive man. But he'd never shown signs of depression, she notes, and he never seemed to be seeking a replacement father figure, especially not one just three years his senior. It's true that Marrero-Colon, a dedicated military man, was the opposite of Berkofsky's Marxist, anti-institutional father, but Susan recounts that her husband never talked about Marrero-Colon as anything other than a casual work acquaintance, and eventually as an annoyance: "He discussed [the conflict with Marrero-Colon] but he wasn't totally unglued about it."
Mittleman, now the chief medical examiner for four Treasure Coast counties, remembers the Berkofsky shooting as "not an easy case." Denying much in the way of specific memory, Mittleman says, "I think we called that a suicide." Reminded of the details, he admits the lack of fingerprints on the gun was disturbing; he also acknowledges that hand-washing can help remove gunshot residue. Mittleman ends a telephone interview on this cryptic note: "Some cases are difficult, and sometimes it is easier to say you just don't know."
Berkofsky's friends scoff at the notion that Marrero-Colon was unable to wrest control of the gun. Berkofsky was bigger (225 pounds to Marrero-Colon's 172) but far from athletic, while Marrero-Colon was fit and well-muscled. "[Berkofsky] looked like a Jewish accountant," says Barbara Evans, a senior inspector with customs who is also chief steward of the employees union. She worked around Berkofsky, saw him intermittently for years, and felt an affinity for a fellow New York Jew. "He was very mild-mannered, not a law-enforcement type at all, whereas Marrero-Colon was built like a fire hydrant."
Scott Bober, a senior customs inspector and Berkofsky's best friend, says, "David was a bigger guy than Marrero-Colon, but he wasn't -- well, in Yiddish we would've called him a schlep. He wasn't a tough guy. He had a hard time at the gun range because he was a little afraid of the gun."
The tussle for the weapon was described by Marrero-Colon to police this way: Berkofsky was at the head of the conference table with Marrero-Colon to his right when Berkofsky drew his gun. Marrero-Colon said he stood up and knocked the gun out of Berkofsky's hand with his right arm. The gun fell to the floor and Berkofsky dropped to the ground. In his first interview with police, Marrero-Colon said he then moved to step on the gun while Berkofsky grabbed for it. Berkofsky then curled himself around the gun in a kneeling position while Marrero-Colon stood behind him, tugging at his shoulders.
In his second interview with police, Marrero-Colon described his struggle with Berkofsky differently. He said Berkofsky flattened his body against the floor with his arms beneath him after gaining control of the gun. Marrero-Colon knelt beside Berkofsky's left hip, pulling on his left arm. Det. Ken Ottley never asked Marrero-Colon about the discrepancy.
Marrero-Colon told Ottley he didn't know where Berkofsky had shot himself, but that he saw blood coming out of his mouth. He says he left the room in a state of shock.
Nelson Andreu, a 21-year veteran of the Miami Police Department's homicide bureau, reviewed for New Times the forensic evidence, witness statements, police reports, and crime-scene photos from the Berkofsky investigation. He is not as critical of the MDPD investigation as medical examiner Kathleen Enstice or Berkofsky's friends and family. "I think basically the police did their job here," Andreu says. "In an investigation like this, there are always things you can criticize after the fact." Although Detective Ottley wasn't available to answer questions about his investigation, Andreu sums up the police perspective regarding inconsistent testimony: "Inconsistency is to be expected. You'll never get two identical stories from the same person, and if you do, then you start to doubt them." Andreu also says that family and friends, even in the case of very obvious suicides, are loath to accept that a loved one has decided to die.