See United States v. Lovasco, 431 U.S. 783, 789 (1977). Bierenbaum, 44, was charged Tuesday with murdering Katz, loading her body into his twin-engine plane and flying out over the Atlantic to dump her in a watery grave. He works in Grand Forks, ND and specializes in Surgery and. You'll find that we're more than just a clinic or a service provider. The Disappearance of Gail Katz Bierenbaum. Its open wheat fields, quiet ways and uncritical embrace of strangers drew two such outsiders here in 1996, a doctor couple from New York and California who had both practiced medicine in Las Vegas. Deborah Prothrow-Stith, M.D. 5. Robert Hickman, MD, is a board-certified physician providing primary care through One Medical, an independent, membership-based practice with an annual fee. Is this you? Trial counsel conceded in his opening statement that Katz died on July 7, 1985: [L]et's talk about some things that are not at issue here. On direct appeal, Bierenbaum contended that the trial court erroneously admitted videotapes, demonstrating how a pilot can, without assistance, place a flight bag loaded with one hundred ten pounds of weight into a Cessna 172, fly the plane over the ocean and push it out. Your recollection controls. I believe the representation given to Appellant by his trial counsel left a lot to be desired, though, for the reasons stated in Judge Sessions's opinion, it does not ultimately amount to constitutionally inadequate representation. ''Helpful'' is the word most people use here to describe Dr. Bierenbaum, a man who fixed his colleagues' computers and brought his neighbors chicken soup. On appeal to the Appellate Division, First Department, Bierenbaum presented, among other questions, the following: Whether Dr. Bierenbaum was denied a fair trial by the improper admission of widespread testimony recounting statements purportedly made by Ms. Bierenbaum, which did not satisfy any hearsay exception or the confrontation clause of the state and federal constitutions ? Similarly, in his letter seeking leave to appeal to the New York Court of Appeals, he argued that leave should be granted to review the admissibility of background evidence through hearsay declarations, whether in domestic violence cases or otherwise, and to consider whether admission of such evidence denies a defendant his state and federal rights of confrontation.. She told her friend that she was going to leave her husband that weekend, and that she was looking for another place to live. Image Credit: Stephanie Youngblood/ ABC News 20/20. For more information, He told O'Malley that Katz was depressed and suicidal. That is one of the theories that could have happened. Under Roberts, the statements of an unavailable hearsay declarant were admissible only if [they bore] adequate indicia of reliability, which could be satisfied by demonstrating that the evidence fell within a firmly rooted hearsay exception, or that the evidence had particularized guarantees of trustworthiness. 448 U.S. at 66. In this vital role, Biernbaum will oversee Trillium Health's expansion as we provide new services, barrier-free access to medical care . At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Even Dr. Chollet's brother, also a physician, had earlier been recruited to work there. holds a Master's degree in Epidemiology from the State University of New York at Buffalo and a Doctorate of Osteopathy from the University of New England. He stated that he nevertheless attempted to look for any evidence that a crime had been committed in the apartment, that he discovered no such evidence, but that he had not conducted a detailed forensic search. Bierenbaum suggests now that a jury could have concluded that if he killed his wife on July 7, 1985, he might have done so in New Jersey and not in New York. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. Anyone can read what you share. During trial the evidence was uncontroverted that Bierenbaum repeatedly stated to friends, to relatives and to the police that he last saw his wife in their apartment in Manhattan. The trial judge denied the motion, but offered to tell the jury that Bierenbaum had no legal obligation to allow a search of his apartment, that he had a right to act on advice of counsel, and that the jury should draw no negative inference from that; but that in fact the apartment was not fully searched. To him, the case against Dr. Bierenbaum seems ''so over-circumstantial'' that he thinks maybe an appeal would succeed. He lets it get explosive and as he has done before, as only he has done before, he places his hands around her neck and begins to choke her. I, 1889. Local doctors here studied the demographics, and did not think a plastic surgeon would arrive until at least 2005. Who would come willingly to a place where many professionals -- particularly doctors who draw patients from the surrounding 100,000 square miles -- must fly single-engine planes to work? Over defense objection eleven witnesses-friends, relatives, colleagues and Katz's therapist-were permitted to testify about conversations they had with Katz between 1983 and 1985 in which she talked about the state of her marriage, her fear of Bierenbaum's temper, his controlling behavior, his threats, and an argument in 1983 during which he choked her to the point of unconsciousness. By last December, the life he had built was over. To show ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), Bierenbaum must (1) demonstrate that his counsel's performance fell below an objective standard of reasonableness and (2) affirmatively prove prejudice arising from counsel's allegedly deficient representation. Brown v. Greene, 577 F.3d 107, 110 (2d Cir.2009) (quoting Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.2008)). Id., 744 N.E.2d at 131 (citations, internal quotation marks and ellipses omitted). Bierenbaum's petition for a writ of certiorari to the United States Supreme Court was denied on October 6, 2003. His anger at his wife. Ive waited a very,very long time for this day. Courts have also considered the status or relationship to the declarant of the person to whom the statement was made, whether there was a coercive atmosphere, whether it was made in response to questioning and whether the statements reflect an attempt to shift blame or curry favor. Dr. Charles Hirsch, Chief Medical Examiner for New York City, testified that prior to the onset of rigor mortis, a dead body is pliable. The body of a woman five feet three inches tall, weighing about one hundred ten pounds could be folded and tied into a package about thirty-six inches long. He told the detective assigned to investigate the case that he had last seen his wife on July 7 at approximately 11 a.m., and that she had left the apartment to get some sun in Central Park. Martin learned that Bierenbaum was a licensed pilot. Bierenbaum faults the district court for concluding that counsel's efforts to secure her testimony were diligent, and concluding that failure to present her testimony did not prejudice the defense. Under New York law, [a] person is guilty of murder in the second degree when [w]ith intent to cause the death of another person, he causes the death of such person N.Y. See Williams, 529 U.S. at 413; Ramdass v. Angelone, 530 U.S. 156, 166 (2000); accord Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir.2002). IV, 3212, Oct. 23, 2000. Mr. Hussey recalled: ''He looked like death warmed over, and I said to him, 'Bob, you look sick.' Prior to trial Bierenbaum's attorney moved to dismiss the indictment, contending that the evidence presented to the grand jury failed to prove that New York had jurisdiction to prosecute him for the murder, because assuming that Katz was dead, there was no evidence that her death occurred in New York. WebMD does not provide medical advice, diagnosis or treatment. Francesca Beale, a former employer, testified that in a telephone conversation in 1983, Katz said that her husband had a terrible temper, that she was afraid of him. 1. All this means that the decision of the district court is properly affirmed. 7. Robert "Rob" Biernbaum, D.O. The defense, knowing that the alternate scenarios for Gail Katz's death had little in the way of factual support, apparently chose to cast all of the scenarios-the prosecution's included-as merely theories, which could not be proven beyond a reasonable doubt. Segalas said she is the one who made the connection. When O'Malley followed this up in a second conversation, Bierenbaum said that Edgar was now not sure whether he'd seen her on that or another day. Bierenbaum called her therapist and others on that day asking if they had seen her. Although Bierenbaum did not express any concern about his wife at the party, later that evening at a friend's house he appeared distraught and called the apartment a couple of times. Relief and SorrowWhen the verdict was read, the victims sister, Alayne Katz ofIrvington, N.Y., burst into tears and slumped over the leg of herbrother, Steven, shaking and sobbing. Detective Virgilio Dalsass from the 19th precinct, where Bierenbaum and Katz resided, and Detective Thomas O'Malley from the Missing Persons Bureau were assigned to investigate the case. How close up you are with a person that you are choking Strangulation is up close and personal. The defense called one witness, Joel Davis. Dr. Bierenbaum is board-certified in internal medicine, hematology, and oncology. Proactive and Reactive LiesDuring the trial, defense lawyer David Lewis denounced theprosecutions murder theory as guesswork since there are noeyewitnesses or physical evidence in the death of Katz-Bierenbaum.Lewis said Katz-Bierenbaum is probably dead, but he stated thatnobody knows how or why. He testified that Katz discussed with him her wish to leave her husband, their constant fights and arguments, and one argument during which Bierenbaum put his hands to her neck. He did not find anything. Please try again. She heard nothing more. In summation, counsel attacked the prosecution's use of the videotapes that showed how a body could have been loaded into an airplane and dropped into the sea, asserting that the videotapes did not supply proof of what happened to Katz. It is not the first time an innocent drug buyer gets killed in the course of a drug deal It was a different city then, a dangerous place, Gail Katz Bierenbaum may very well have found by virtue of some of her own behavior danger. And as always, patient privacy and confidentiality remain of the utmost importance. In September Dalsass finally secured permission to search Bierenbaum's apartment. Stay up-to-date with how the law affects your life. Doctoral Student: Professors are approachable and dedicated, as well as being experts in their respective fields. In July, early in the investigation, Dalsass asked Bierenbaum if he could look around the apartment. He does not tr[y] to defuse the situation. Robert Bierenbaum, a former plastic surgeon who was convicted of murdering his wife in 2000, finally confessed to killing her and throwing her body out of an airplane after more than three decades of maintaining his innocence. Sherman would have testified that she believed Katz left the apartment after the door slammed. at 583. Bierenbaum's counsel explained that he was concerned that a contemporaneous objection would have prompted the trial court to sum up in favor of the prosecution, in other words, to highlight for the jury the argument that counsel found objectionable. Later in his summation, he returned to the drug-related disappearance theory: Segalas-they did a little bit, what they thought was cocaine that was left in the house. A few days before she disappeared, Katz told DeCesare that she had met someone in whom she was interested, and she wondered if DeCesare thought it would be all right if she brought him up to the apartment when Bierenbaum wasn't there. He told the detective that he remained at home until approximately 5:30 p.m., when he left for New Jersey. amend. Feb. 25, 2008). Claim your profile (701) 780-5260 . ''It's the loss of his life and the good he does to help other people. He knew in July of 1985, what it would take to kill her. '' The next day, the news hit that he was in New York and under arrest for murder. These included Ellen Schwartz, Francesca Beale, Katz's therapist Dr. Sybil Baran, Anthony Segalas and Kenneth Feiner. Bierenbaum now argues that his counsel was ineffective for failing to properly object to the admission of the videotapes. Failure to object to summation remarks. To satisfy the first part of the test-performance-he must show[ ] that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687. Bibb said one lie was that after Katz-Bierenbaum disappeared, aprivate investigator told the cosmetic surgeon that his wife was awaitress at a seaside resort in California. Dr. Robert M Biernbaum - Rochester NY, Emergency Medicine at 259 Monroe Ave. Ive waited for that sound a long time.. The fact that this defendant allegedly committed a prior bad act is no proof whatsoever that he possessed a propensity or disposition to commit the crime charged in this indictment or any other crime. One of his duties was to relieve the doorman at lunchtime. Bierenbaum argues that even if it were within the range of reasonable strategic choices to concede that Katz was dead, it was not reasonable to concede that she died on the Sunday she disappeared. In determining whether prosecution has been unduly delayed, a New York court will balance five factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.. 2005 - 2023 WebMD LLC. Gail Katz and Robert Bierenbaum were married in August 1982. Katz's friend Yvette Feis was in the apartment several days after Katz was reported missing, noticed that the living room rug was gone and asked about it. Respondents assert in the alternative, and the district court agreed, that with one exception the statements were not admitted for their truth. He works in Rochester, NY and 8 other locations and specializes in Emergency Medicine and Family Medicine. This limited search was conducted on September 30; nevertheless at that time Dalsass looked around the apartment to see if he could detect any evidence that a crime had been committed there. Bierenbaum faults his trial counsel for failing to object when the prosecution argued in summation that Bierenbaum allowed an argument to get explosive and choked Katz as he had done before, only this time to her death.4 He argues that the statements invited the jury to consider the 1983 choking incident as evidence of propensity, and that there was no evidence that Katz died by strangulation or that Bierenbaum stood over her as she died. Though he doesn't like to admit it, Mike Berg, the friend from the Rotary Club, is angry. Petitioner-Appellant Robert Bierenbaum was convicted after a jury trial of murder in the second degree, see N.Y. Although he followed in the footsteps of his father Dr. Marvin Bierenbaum by becoming a surgeon, he never gave up his dream of becoming the first Jewish astronaut. Dr. Ellen Schwartz, a close friend from graduate school, testified that Katz told her she was afraid of her husband, and that she was planning to leave him soon. See Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.2007). visit www.rpcn.org. The prosecution would have argued that even if the jury believed Sherman was testifying truthfully about what she heard, her testimony was consistent with the prosecution's theory that Bierenbaum killed his wife in the course of an explosive argument. Given that the Appellate Division reviewed the claim that the evidence was legally insufficient to prove that Bierenbaum intended to cause Katz's death, he cannot claim that counsel was ineffective in failing to preserve the issue for appeal. Baran also noted that Katz-Bierenbaum had been apartmenthunting, had gotten a manicure and had bought birth control devicesjust before she vanished. III, 2820, Oct. 12, 2000. He was awaiting trial at his parents' home in East Orange, N.J., while his wife and daughter were in Pittsburgh. Rochester RHIO makes your information available wherever you Moreover, it was a reasonable trial strategy to establish a forthright relationship with the jury, by conceding what the defense did not have evidence to contest. But last week, a Manhattan jury found Dr. Bierenbaum guilty of killing his first wife and dumping her body from an airplane. He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. And when detectives grilled him about what he did on July 7, 1985, the day his wife disappeared, he never mentioned his two-hour solo flight in a Cessna over the Atlantic Ocean. Bierenbaum told O'Malley that he and Katz had a mild argument Friday night which continued on Saturday, whereupon Katz told him that she was going to Central Park to cool off at about 11 a.m. Bierenbaum said that he had spent some time at the apartment waiting for Katz to return, but then left at some point to visit his family in New Jersey.
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