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. Katz told him that she was going to move in with her friend Ellen Schwartz in Connecticut. 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.. vol. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. University Of New England College Of Osteopathic Medicine. Never, Bibb told the jurors shortly before they begandeliberations, did Bierenbaum, who has a pilots license, evermention that he had spent nearly two hours flying an airplane theafternoon after his wife was last seen. I, 1881, Oct. 2, 2000. But he chokes her much harder than he'd done when she was only having a cigarette. ''And people would just be like, 'Hey buddy, don't touch me. Dr. Yvette Feis, Katz's former professor and friend, testified that Katz told her she was looking for other sexual partners. He works in Rochester, NY and 8 other locations and specializes in Emergency Medicine and Family Medicine. 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? To satisfy the second part of the Strickland test-prejudice-Bierenbaum must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id., 466 U.S. at 694. He has 45 years of experience. Dr. Robert Bierenbaum, then 39, an intense New Yorker with piercing eyes and an in-your-face manner, seemed misplaced amid the brawny and laconic citizenry. Counsel accepted the offer and the trial judge instructed the jury: Let me also state that the defendant had no legal obligation to allow the police to search his apartment at any point, but-and certain evidence came out concerning a search of his apartment. Doctoral Student: Professors are approachable and dedicated, as well as being experts in their respective fields. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. 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 the hangar where Dr. Bierenbaum's Comanche still sits, Val Friesen was on his back with a wrench and a rag, repairing an airplane wing. Bierenbaum gave detailed statements of his activities to both investigating officers in the days following Katz's disappearance. In this vital role, Biernbaum will oversee Trillium Health's expansion as we provide new services, barrier-free access to medical care . The prosecution did argue in summation that Bierenbaum lied about the doorman, but the thrust of the argument was that Bierenbaum never spoke with Rivera at all in the days after Katz's disappearance.3 The Alvarez testimony, if believed, would not have countered this argument, as Alvarez did not claim that he'd mentioned his sighting of Katz to Bierenbaum, or anyone else, during this period. Few questioned Dr. Bob, as they called him, who was convicted last week of murdering his first wife. E.g., Henry v. Ricks, 578 F.3d 134, 137 (2d Cir.2009). The decision not to do so was a defensible trial strategy. After an eight-day trial by jury in October 2000 before the Honorable Leslie Crocker Snyder in the Supreme Court of the State of New York, County of New York, the jury returned a verdict of guilty to the charge. The United States Supreme Court decisions in Crawford and Davis v. Washington, 547 U.S. 813 (2006), confined the scope of the Confrontation Clause to testimonial statements. 2254(b)(1)(A). In July, early in the investigation, Dalsass asked Bierenbaum if he could look around the apartment. Katz told Feis that she intended to use the letter as leverage in divorce proceedings by threatening to use it to ruin his career. Penal Law 125.25[1]. 2 reviews. 9. Looking back, people see sinister clues in the fact that his socks were mismatched, his airplane a mess. He works in Grand Forks, ND and specializes in Surgery and Internal Medicine. Only later would he learn what had happened. Dale Maixner, special agent with the North Dakota Bureau of Criminal Investigations, has another theory: that he was systematically building an image as a person incapable of murder. In 1999 Bierenbaum was indicted and charged with murder in the second degree in her death. A strong piece of the defense was the fact that there was no physical evidence to link Bierenbaum to the crime. As of 2002 when his claim was adjudicated on the merits, and 2003 when his conviction became final, Ohio v. Roberts governed his claim. A. Dr. Biernbaum graduated from the University of New England College of Osteopathic Medicine in 1997. This conclusion was neither contrary to nor an unreasonable application of the Supreme Court's Confrontation Clause precedent in 2002 and 2003. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. Please verify insurance information directly with your doctor's office as it may change frequently. If you wanted to start a new life, free of reproach or inquiry, this remote prairie town of 35,500 might be the place. The probable truth, Bibb said, is that Bierenbaum strangled hiswife in their Upper East Side Manhattan apartment after she toldhim she was leaving their loveless and sometimes violent marriagefor another man. Please enter a valid 5-digit Zip Code. I heard the cuffs close round hishands. Dr. Bierenbaum graduated from the Albany Medical College in 1978. O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. Moreover, at that point in the summation, the prosecuting attorney was cataloguing what he termed Bierenbaum's lies-to Dalsass, to O'Malley, to Caruana, and several other witnesses. Kasenbaum saw Katz on the day before she disappeared. They found nothing, I've been cleared, and in the time frame we're talking about it's clear that he's telling Karen Caruana that the cops have cleared him before they've even been inside his apartment Cops hadn't searched anything yet. 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. Bierenbaum, currently a resident of Grand Forks, N.D., faces amaximum term of 25 years to life in prison when he is sentencedNov. Dr. Sybil Baran, Katz's therapist, testified that Katz was afraid of Bierenbaum's anger. The application fee at University of California--Los Angeles (Geffen) is $95. School of Medicine - Loma Linda University. See Galdamez v. Keane, 394 F.3d 68, 78 (2d Cir.2005) (reaching the merits of petitioner's confrontation clause claim where briefs and leave application, fairly construed, raised the issue). 28 U.S.C. See Feliz, 467 F.3d at 232. According to her affidavit, she was acutely aware of Katz, who frequently screamed at her husband and walked around noisily in high-heeled shoes. With bitter winters and little company, residents here have little use for moral condemnation. About three weeks after Katz disappeared, Bierenbaum began an affair with Karen Caruana, a nurse educator at Maimonides Medical Center where Bierenbaum was a surgical resident. Robert previously worked for MultiCare Health System, an organization with a fast-paced trauma center, four community hospitals, and many neighborhood clinics based in Tacoma, Washington. Robert moved to Las Vegas, Nevada in 1989 and set up a medical practice in the city. Moreover, a federal court must apply the clearly established Supreme Court jurisprudence as of either the date of the pertinent state court adjudicat[ion] on the merits, or the date when the state court conviction became final. Mungo v. Duncan, 393 F.3d 327, 333-34 (2d Cir.2004). 1200 S Columbia Rd, Grand Forks, ND, 58201. 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. But last week, a Manhattan jury found Dr. Bierenbaum guilty of killing his first wife and dumping her body from an airplane. He told Karnofsky that he had gotten into an argument with his wife one day, that she went to cool off in Central Park, that she had been seen one time around the area of Central Park, but had never been seen again. amend. Now, you know what his intent was.Trial Tr. Leave to appeal to the New York Court of Appeals was denied on March 10, 2003. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. Loma Linda University . Please verify insurance information directly with your doctor's office as it may change frequently. Dr. Robert Bierenbaum, a former plastic surgeon from New York convicted of murdering his wife in 2000, confessed to killing her and then throwing her body out of an airplane and into the. We review de novo a district court's decision to deny a petition for a writ of habeas corpus. ''But he was just like, 'Anything to do to help.' Today, local rumor has it, the federal witness protection program relocates people here. The three psychiatrists, who treated Dr. Bierenbaum briefly in 1983, when he and his wife lived on the Upper East Side, warned his wife at the time that she was in danger. If the jury concluded beyond a reasonable doubt that Bierenbaum committed the murder, the jurors would not have harbored a reasonable doubt that it occurred in the apartment. When Rivera testified at trial, he stated that he could not remember anything about July 7, 1985. Although defense counsel mistakenly referred to the search of Bierenbaum's apartment as a forensic search, omitting the term forensic from counsel's opening statement would not have prevented the prosecution from eliciting Dalsass's testimony that a limited search of the apartment was conducted several weeks after Katz disappeared. At the close of its opinion, the Appellate Division disposed of the arguments it did not address as follows: We have examined defendant's remaining contentions and find them unavailing. Bierenbaum, 748 N.Y.S.2d at 589. art. It was consistent with that theory to concede her death on July 7. Not only that's not disputed by us, but that she likely died some time on July 7, 1985. Trial Tr. His arrest came nearly 15. A state law ground is only adequate to support the judgment and foreclose review of a federal claim if it is firmly established and regularly followed in the state, and application of the rule would not be exorbitant. Garvey v. Duncan, 485 F.3d 709, 713-14 (2d Cir.2007) (quoting Lee, 534 U.S. at 376). Following the close of evidence, counsel move[d] to dismiss the indictment on the basis that the People have failed to prove their case beyond a reasonable doubt and to the legal standard required for the case to go to the jury. Id. ''Most people don't know that Minot, North Dakota, is on the face of the map, so why come here?'' Was she killed by drug dealers? Throughout the search for Gail Katz-Bierenbaum, her family said they found her husband decidedly unhelpful. June Sherman lived directly below the Bierenbaum apartment. Ive waited for that sound a long time.. Detective O'Malley testified that in their first conversation Bierenbaum told him that a doorman named Edgar had seen Katz leave the building on July 7. Now we will tell you that the evidence will also show that she is dead. The Disappearance of Gail Katz Bierenbaum. 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. 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. Had the defense called Alvarez, and had he testified in accordance with his affidavit, the jury would have been presented with the testimony of the relief doorman, who remembered not only the departure of a particular tenant, but what she was wearing on an unremarkable Sunday fifteen years before the trial. In fact, Bibb said, Bierenbaum knew very well that his wife wasdead. His anger at his wife. 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. Failure to request charge on territorial jurisdiction. A trial court may issue a trial order of dismissal as to any count of an indictment on the ground that the trial evidence is not legally sufficient to establish the offense charged. N.Y.Crim. Respondents assert in the alternative, and the district court agreed, that with one exception the statements were not admitted for their truth. On that point we agree with the Appellate Division, the post-judgment motion court and the district court that the contents of the videotape[s] depict a scenario that was anything but speculation. 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. They later moved to. When the prosecution gave notice during trial that it had provided copies of the videotapes to the defense, counsel stated I suspect we'll object. The trial judge responded And I suspect I'll allow it. Trial Tr. 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. 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. Late in 1984 or early 1985 Katz told her that she had received a letter from Bierenbaum's psychiatrist warning her that Bierenbaum posed a danger to her, and suggesting that Katz separate from him. 2120, 2008 WL 515035 (S.D .N.Y. See People v. Bierenbaum, 790 N.E.2d 281 (N.Y.2003). Baran also noted that Katz-Bierenbaum had been apartmenthunting, had gotten a manicure and had bought birth control devicesjust before she vanished. Katz recounted an incident when Bierenbaum discovered her smoking a cigarette, got very angry, came at her and choked her. Rivera's testimony was not particularly damaging to Bierenbaum's case. Dr. Robert M Biernbaum - Rochester NY, Emergency Medicine at 259 Monroe Ave. 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. Dr. Prothrow-Stith is an internationally recognized public health leader, who since 2008 has advised top-tier healthcare, life sciences, academic and not-for-profit institutions on leadership and . Sergeant Matthew Rowley of the New York police department's Aviation Unit executed three flights in a Cessna 172 from Caldwell Airport on October 11, 2000, during the trial. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. Bierenbaum said he would get back to him, but did not. University of New England, College of Osteopathic Medicine, Certifications:American Osteopathic Board of Emergency Medicine. Medical School & Residency. Mr. Berg recalls it as the most remarkable experience of his life, one that ''fulfills a person's reason for being here.''. Segalas said she is the one who made the connection. asked Stephanie, a bookkeeper in town who was treated by Dr. Bob and who asked that her last name not be used. Id., 744 N.E.2d at 131 (citations, internal quotation marks and ellipses omitted). On February 25, 2008, the district court denied the petition without conducting an evidentiary hearing. Bierenbaum, 44, clasped his hands in front of him and loweredhis head when the verdict was read by the jury forewoman inManhattan State Supreme Court. All rights reserved. The police report also stated that Katz phoned Segalas in June 1985 and asked him to examine some cocaine she had bought, because she thought she had received a short amount. During that period Caruana and Bierenbaum discussed Katz's disappearance. vol. Learn more about FindLaws newsletters, including our terms of use and privacy policy. That involved advice of counsel. Penal Law 125.25[1], and sentenced to a term of imprisonment of twenty years to life. Before long, Dr. Bierenbaum, a plastic surgeon, and his wife, Dr. Janet Chollet, an obstetrician-gynecologist, had settled in to medical practices, pitched in on community projects, had a home, a dog and a baby on the way. Here, Bierenbaum expressly invoked the Confrontation Clause to both appellate courts. 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. Counsel's theory was that Katz left the apartment on Sunday, and met with foul play after she left. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. In his petition he alleged that he was denied his Sixth Amendment right to effective assistance of counsel, and that admission of numerous hearsay statements violated his Sixth Amendment right to confront witnesses against him. ABC news anchor John Quinones (right) interviews Daniel Bibb, an original prosecutor in the case involving the murder of Gail Katz-Bierenbaum by her husband Dr. Robert Bierenbaum, for a "20/20" tv . Even Dr. Chollet's brother, also a physician, had earlier been recruited to work there. '', See the article in its original context from. But his life in Minot was already fraying. . The torso was ruled out as belonging to Ms. Katz-Bierenbaum, whose remains have never been found. Caruana testified that Bierenbaum told her that his apartment and car had been searched and that he was clean as far as any police investigation was concerned. According to his affidavit, on the Sunday before Katz's parents and the police inquired about her, he relieved the doorman, Edgar Rivera, at approximately 11:30 a.m. At that time he saw Katz leave the front entrance of the building wearing shorts and a t-shirt. See Hemstreet v. Greiner, 491 F.3d 84, 90 (2d Cir.2007). The passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. When O'Malley asked him why he waited until the evening of the following day to report Katz missing, Bierenbaum stated that he felt she would return, and when she didn't friends advised him to notify the police. In 1998 the investigation was reopened, and the body was exhumed and determined by DNA comparison not to be Katz. Of course, there is another explanation for what drew Dr. Bierenbaum here: the changes in medicine that have allowed the Trinity Health Center, where he worked, to become a regional hub. Bierenbaum argues that the Dalsass testimony was inadmissible absent defense counsel's remark, and the prosecution could not therefore have used it in summation. Location Comments: We're glad you're checking out Trillium Health. Dr. Bierenbaum specializes in lung cancer, gastrointestinal cancers, and myelodysplasia. In their last telephone conversation, Katz told DeCesare that she planned to ask Bierenbaum for a divorce, and that she had secretly borrowed $10,000.00 and put it in a safe deposit box to pay for a year of graduate school. Failure to move for dismissal on the ground of insufficient evidence of specific intent to kill. vol. Failure to properly object to the admission of the videotaped demonstration. A state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence. Dalsass testified that Bierenbaum's attorney gave permission for the police to conduct a limited search for items that might help to identify Katz. His wife, Gail Katz-Bierenbaum, 29, vanished on July 7, 1985.Her body was never recovered, and the prosecutions case was basedmainly on circumstantial evidence. A state prisoner may fairly present to the state courts the constitutional nature of his claim by claim[ing] the deprivation of a particular right specifically protected by the Constitution. Daye v. Att'y Gen. of the State of N.Y., 696 F.2d 186, 193 (2d Cir.1982) (en banc). The Confrontation Clause of the Sixth Amendment to the United States Constitution states: in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. And as always, patient privacy and confidentiality remain of the utmost importance. In the four to six months before she disappeared she told her therapist that she was looking for an apartment so that she could separate from Bierenbaum. Currently incarcerated, Bierenbaum appeals from the February 26, 2008 judgment of the United States District Court for the Southern District of New York (Sweet, J.) Some in Minot now think of Dr. Bierenbaum's good works as an effort to expiate guilt. These are not the acts of a suicidalperson, she said.