Police Charge A Surgeon Murdered Wife in ’85

By KIT R. ROANE

Published: December 9, 1999

Fourteen years ago, Gail Katz-Bierenbaum stormed out of her Upper East Side apartment after an argument with her husband and never returned. At least that is what police documents show her husband, Robert Bierenbaum, said at the time.

But yesterday, prosecutors with the Manhattan district attorney’s office offered another explanation as they arraigned Mr. Bierenbaum, 44, on charges of second-degree murder. They say there is evidence that Mr. Bierenbaum, a plastic surgeon who now lives in Grand Forks, N.D., killed his wife, drove her body to Essex County Airport in Caldwell, N.J., then dumped her body as he flew his private plane over the Atlantic Ocean somewhere between Montauk Point, N.Y., and Cape May, N.J. Her body was never found.

Calling it a ”powerful and compelling case,” Assistant District Attorney Daniel Bibb told Judge Leslie Crocker Snyder of State Supreme Court yesterday that more than a decade of investigation had led prosecutors to this conclusion, adding that Mr. Bierenbaum had been free for too long.

Prosecutors said they could not detail the evidence that had surfaced recently but added that much of it had to do with inconsistencies in how Mr. Bierenbaum had explained his wife’s disappearance to others over the last several years. Mr. Bierenbaum’s lawyer, Scott Greenfield, refused to comment on the case.

Ms. Katz-Bierenbaum’s sister, Alayne Katz, sat in the courtroom weeping silently, holding close to her brother and her husband as Mr. Bierenbaum entered a plea of not guilty.

He was released on a $500,000 bond after he turned over both his pilot’s license and passport. The judge ordered him not to venture outside New York City or New Jersey, where his parents live.

Outside the courthouse, Mrs. Katz broke into sobs as she described the years of waiting for this day and the pain she had felt as Mr. Bierenbaum went on with his life. Mr. Bierenbaum, who left New York a few years after his wife disappeared, moved first to Las Vegas and then to North Dakota. He is remarried and has a small child.

Mr. Bierenbaum reported his wife missing on July 8, 1985, a little more than a day after he said a quarrel drove her to leave their apartment on East 85th Street, according to police documents. In the missing person’s report he filed, Mr. Bierenbaum said that he and his wife had been quarreling during the previous weekend and that they had been seeing a marriage counselor. He added that Ms. Katz-Bierenbaum, a clinical psychology student, had been treated for depression and that she had attempted suicide in the past.

Later, Mr. Bierenbaum told investigators that he thought his wife had gone to Central Park to ”cool off” and that his doorman had said he remembered seeing her leave.

But by July 13, the police were beginning to doubt Mr. Bierenbaum’s story. During further questioning, he said the doorman might have been talking about another day. And when he was asked to recount what he did between the time his wife disappeared and he called the police, Mr. Bierenbaum did not tell the police he had gone on a two-hour flight, the documents show.

Police documents show that the police were told of several instances in which Mr. Bierenbaum was moved to violence. But Mr. Bierenbaum did not want to talk about them when the police interviewed him after he reported his wife’s disappearance, the documents show.

Despite their suspicions, the police were unable to charge Mr. Bierenbaum until yesterday.

Source: http://www.nytimes.com/1999/12/09/nyregion/police-charge-a-surgeon-murdered-wife-in-85.html?ref=gailkatzbierenbaum

’85 Murder Case Tests Limits Of Patient Confidentiality

By KATHERINE E. FINKELSTEIN

Published: August 6, 2000

Seventeen years ago, an angry young doctor who had been fighting with his wife went to consult Michael H. Stone, a psychiatrist known for treating the violent rages and fragile self-esteem of borderline personality disorder.

In the elegant office overlooking Central Park, Dr. Stone said, the young man spoke of homicidal impulses toward his wife and acknowledged past violence. Once, he had tried to drown her cat. Recently, he had choked his wife to unconsciousness, an act that led his parents to arrange the consultation.

The patient’s rage was hardly new to Dr. Stone, who has written extensively about men who control and dominate their partners. Nor was his obligation unfamiliar: a duty to protect the man’s wife from harm by warning her, which he did. He also contacted his patient’s parents, with the patient’s permission.

But little else has been familiar since that consultation in 1983: the wife, Gail Katz-Bierenbaum, vanished in 1985 and has never been found. Last year, her husband, Robert Bierenbaum, the angry young man who had consulted Dr. Stone and became a successful plastic surgeon, was charged with her murder. He will stand trial this fall in Manhattan Criminal Court. He has said he is innocent.

In pretrial hearings last week, prosecutors and defense lawyers deadlocked over a single issue that has yet to be resolved by Judge Leslie Crocker Snyder: whether Dr. Stone should be allowed to testify at the trial, which Dr. Bierenbaum’s lawyers vigorously oppose. They say the psychiatrist-patient relationship is sacrosanct and confidential.

The slim and elegant psychiatrist is more than a potential star witness for the prosecution in a murder trial without a body. He is at the center of a murky and fiercely argued conflict: does the psychiatrist’s duty to warn the potential victim of a violent patient nullify that patient’s right to confidentiality in a court of law?

Dr. Stone, who wants to testify, considered this question recently as he sat before a wall of books and diplomas, wearing an impeccable blue suit and crisp white shirt.

”There is now a murder trial, which is a different circumstance,” he said.

If the door is opened to what happened in Dr. Stone’s office that day and in subsequent meetings, what impact might it have on this closely watched case? Lawyers involved in the case would not comment.

Dr. Stone said he knew from the first consultation and Dr. Bierenbaum’s hauntingadmissions that he was a dangerous man. ”People who kill large mammals —- ” he stopped himself, then continued, ”we know it’s a risk factor.” His concerns were so great, he said, that he gave Dr. Bierenbaum conditions in order to be treated: that each session be taped with two tape recorders; that he give continuing permission for Dr. Stone to contact his parents and his wife, whenever the risk of violence seemed greatest; and that Dr. Bierenbaum’s parents buy a $2 million life insurance policy from Lloyd’s of London to provide for Dr. Stone’s children in the event that his patient harmed him.

This last condition — startling and unorthodox to some experts — was necessary to reduce his own fear and ensure a safe atmosphere for therapy, Dr. Stone said recently, explaining, ”The treatment would be very confrontative, and who knows what feelings would be mobilized.” Dr. Bierenbaum rejected those conditions, Dr. Stone said.

But armed with the duty to warn, and explicit permission from Dr. Bierenbaum to speak with his parents, Dr. Stone said, he did both. In meeting with Ms. Katz-Bierenbaum, he even gave her a letter to sign, which stated that she had been warned by Dr. Stone to separate from her husband or risk death.

”If I do not heed this advice, I must accept the consequences, including the possibility of personal injury, or death, at the hands of my husband,” the letter stated, ”and absolve Dr. Stone of responsibility.” Ms. Katz-Bierenbaum took the letter but never signed it, and two years later she was gone.

The ethics of medicine and the rule of law are worlds apart. The psychiatrist’s obligation, traditionally, has been to safeguard a patient’s disclosures, no matter how dark or alarming. The court’s obligation is to seek truth, even though facts may be deeply hidden.

In 1976, a California court ruled in a landmark decision that a psychiatrist was liable for damages when he failed to warn a patient’s intended victim, Tatiana Tarasoff, of an imminent threat to her life. The privilege between a therapist and patient ends where the ”public peril begins,” the court said.

Psychiatrists protested the Tarasoff decision, as it became known, arguing that it would erode confidentiality and make patients less trusting. But it was adopted as law by many states and became a national standard taught to every psychiatrist in training.

But there has been little precedent in New York, as elsewhere, for the decisions that now face Judge Snyder: whether the warning by Dr. Stone, once given, equals public disclosure and can be shared with a jury, or, as prosecutors also contend, whether the patient’s voluntary waiver of confidentiality to his parents opened the door to allow his doctor to testify about what he said.

At a hearing last Tuesday, Dr. Stone saw his old patient for the first time in years. Dr. Bierenbaum hunched over the defense table in a dull gray suit, expressionless. And the psychiatrist took the stand, glancing only occasionally at the man he briefly assessed.

Earlier, with Dr. Stone out of earshot, an assistant district attorney, Daniel L. Bibb, argued that when Dr. Bierenbaum authorized a full disclosure to his parents, that destroyed the privilege for good, ”not just to the parents but to everybody.” Dr. Bierenbaum’s lawyer, David L. Lewis, argued that the privilege still existed, extended far beyond the course of treatment and that authorizing Dr. Stone to speak with his parents was not a blanket authorization to tell the whole world.

Experts are divided. Some agreed with prosecutors that Dr. Stone’s warning to his patient’s parents and wife effectively let the cat out of the bag; once the patient permits a disclosure, the privilege of confidentiality cannot be recouped.

But others say that a limited release of information does not waive confidentiality. As Dr. Paul S. Appelbaum, professor and chairman of the department of psychiatry at the University of Massachusetts medical school, pointed out, when patients release confidential medical information to an insurance company, confidentiality remains intact.

Dr. Stone remains hopeful that he will be allowed to speak. ”I feel that the information that I hold has great bearing on the case,” he said. ”I have my beliefs; that’s apparent already from the letter I wrote to Gail.”

Source: http://www.nytimes.com/2000/08/06/nyregion/85-murder-case-tests-limits-of-patient-confidentiality.html?ref=gailkatzbierenbaum

Patient Confidentiality at Issue in 1985 Murder Case

By KATHERINE E. FINKELSTEIN

Published: September 8, 2000

Correction AppendedIn a case that has pitted medical privacy against the demands of legal disclosure, two more psychiatrists reluctantly testified yesterday that they warned a wife of potential danger after briefly treating her angry husband, a plastic surgeon who is now accused of killing her.

The wife, Gail Katz-Bierenbaum, vanished 15 years ago, and her husband, Dr. Robert Bierenbaum, a plastic surgeon, will stand trial on a murder charge this fall in Manhattan Criminal Court. He has pleaded not guilty.

During the pretrial hearings yesterday, the psychiatrists acknowledged that they had feared for Ms. Katz-Bierenbaum’s safety after initial consultations with her husband and that, as a widely established psychiatric practice that is legally binding in many states, they had warned her of the potential danger.

But they also acknowledged discomfort at being compelled to testify, given their obligation to safeguard Dr. Bierenbaum’s privacy and keep his admissions confidential, an obligation that one of the doctors called lifelong, despite the brevity of treatment.

With little precedent to guide her, Judge Leslie Crocker Snyder must decide whether the psychiatrists’ testimony can be presented to a jury as evidence against Dr. Bierenbaum or whether any information regarding his medical treatment must remain confidential.

In medical and legal circles, the decision facing the judge is not a small one. Prosecutors have argued that once the doctors warned Ms. Katz-Bierenbaum and the defendants’ parents — with Dr. Bierenbaum’s permission, they contend — the doctors effectively opened the door and waived their confidentiality.

But many psychiatrists believe that a decision to admit the testimony could have a chilling effect on the doctor-patient relationship, which depends on trust and the assurance that all admissions remain secret.

To that end, the New York State Psychiatric Association and the American Psychoanalytic Association recently filed a brief in the case, opposing the prosecutors’ efforts to disclose Dr. Bierenbaum’s confidential medical information. They contend that doctors’ warnings to third parties do not erase a patient’s right to privacy.

Judge Crocker Snyder’s decision could have important implications for the outcome of the trial. Three psychiatrists have now testified that after brief consultations, they deemed Dr. Bierenbaum to be dangerous.

Dr. Michael H. Stone, a psychiatrist who testified last month, also wrote a letter to Ms. Katz-Bierenbaum, warning her that her life might be in danger if she remained with her husband.

And for prosecutors, the psychiatrists’ warnings could be crucial in establishing Dr. Bierenbaum’s guilt, especially because Ms. Katz-Bierenbaum’s body has not been found. Since her disappearance, Dr. Bierenbaum has remarried and now lives in North Dakota.

Gerald Shargel, a Manhattan defense lawyer, said: ”There is no question that this evidence would have a devastating impact on the defense. It covers the traditional area of motive, and juries cling to that kind of evidence. This could be the pivotal issue of the case.”

First on the stand yesterday was Dr. Stanley Bone, who said he had had two consultations with Dr. Bierenbaum in November 1983. With his own lawyer in the courtroom, Dr. Bone said that Dr. Bierenbaum had ”authorized and directed” him to speak with his wife.

When asked by an assistant district attorney, Adam Kaufman, whether he warned Ms. Katz-Bierenbaum that her life might be in danger, Dr. Bone answered, ”Yes.”

But when asked why Dr. Bierenbaum allowed this, Dr. Bone said, ”This is a trial, a legal case; I don’t feel comfortable answering.”

While acknowledging a desire to protect the doctor-patient relationship, Judge Crocker Snyder said, ”I have to direct you to answer.”

Dr. Bone then explained that Dr. Bierenbaum asked him to speak to his wife because, ”It doesn’t help him if he’s in a position to do anything that causes harm to his wife.”

Afterward, Dr. Shelley Juran took the stand and, with similar hesitation, recounted how Dr. Bierenbaum ”put no limitation” on her speaking to his wife and how she warned Ms. Katz-Bierenbaum of potential danger.

When asked by prosecutors why she sought to speak with his wife, and did so over the phone, she answered, ”I wanted to hear her voice because I was concerned for her safety.”

After the hearing, which is to continue next week, Dr. Juran paused outside the courtroom and said: ”It’s a very hard position to be in. You have your responsibility to a client.” But she added that there also were ”judges and the rule of law; I know we’re at the edge of possible new legal ground.”

Photo: Dr. Robert Bierenbaum and Gail Katz before their marriage in 1982. She vanished in 1985, and he has been charged with her murder.

Correction: September 9, 2000, Saturday Because of an editing error, an article yesterday about preparations in Manhattan for the trial of Dr. Robert Bierenbaum, who is accused of having killed his wife, Gail Katz-Bierenbaum, misstated prosecutors’ arguments for allowing testimony by two psychiatrists who treated him before she disappeared in 1985. The prosecutors argued that because Dr. Bierenbaum permitted the psychiatrists to warn his wife and his parents that Ms. Katz-Bierenbaum might be in danger, he had waived his right to confidentiality. The prosecutors did not argue that the psychiatrists had waived it.

Source: http://www.nytimes.com/2000/09/08/nyregion/patient-confidentiality-at-issue-in-1985-murder-case.html?ref=gailkatzbierenbaum

Judge Bars Testimony of 3 Psychiatrists in Murder Case

By KATHERINE E. FINKELSTEIN

Published: September 13, 2000

A Manhattan judge ruled yesterday that the law must not intrude on the confidential doctor-patient relationship and excluded the testimony of three psychiatrists about the violent impulses of a young man they treated 17 years ago who is now facing a murder trial.

Psychiatric groups hailed the ruling in the case, in which Dr. Robert Bierenbaum, a successful plastic surgeon, is accused of murdering his wife, as an important victory for the practice of psychiatry, which relies on the guarantee of confidentiality to foster trust.

The judge in the case, Leslie Crocker Snyder of Manhattan Criminal Court, said she was distressed that she had to exclude testimony that the three psychiatrists were ”impressed” by the ”danger posed by the defendant.” And she said that even though it was disturbing to limit the ”truth-finding function” of the court, she had to carefully balance that function against protections similar to those that exist between a lawyer and his client.

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. While they have reluctantly acknowledged, in pretrial hearings, that they contacted her, they have also said they were obliged to safeguard Dr. Bierenbaum’s privacy. Dr. Bierenbaum’s wife, Gail Katz-Bierenbaum, vanished in 1985 and her body has never been found.

While the judge’s decision was an evident blow for the prosecutors, she also made some decisions favorable to them, said a spokeswoman for the Manhattan district attorney’s office. The judge ruled that she would permit other witnesses to testify about the psychiatrists’ concerns, which will allow the prosecution to paint a portrait of a rocky marriage laced with violence and fear.

The judge’s major ruling, which was closely watched in legal and psychiatric circles, navigated thorny new territory in New York State law; namely, whether the confidentiality in a doctor-patient relationship is still protected in a courtroom if a psychiatrist has warned intended victims of potential harm.

During the pretrial hearings, prosecutors have argued that Dr. Bierenbaum had waived his right to confidentiality by allowing his psychiatrists to speak about his treatment with his parents and his wife. The three psychiatrists testified that after consulting with Dr. Bierenbaum, they warned his wife that her life might be in danger; as one letter shows, one doctor even put this in writing to her.

But in a lengthy brief, two groups that opposed the prosecutors’ efforts, the New York State Psychiatric Association and the American Psychoanalytic Association, argued that the waiver of confidentiality that allows psychiatrists to warn third parties of potential harm by a patient ends when the threat of imminent harm ends.

”When a doctor makes a warning, he’s violating confidentiality for a certain purpose and a certain period of time,” said Seth P. Stein, general counsel of the state Psychiatric Association and an author of the brief. ”And once that purpose and period of time have elapsed, the privilege is fully restored.”

He added, ”The goal of the warning is to protect people, not to prosecute them,” and if that balance were changed, patients would be far more reluctant to discuss their violent thoughts and feelings.

Psychiatric experts not connected with the case also applauded the ruling. Dr. Paul S. Appelbaum, chairman of the department of psychiatry at the University of Massachusetts medical school, said, ”Were privilege statutes to be waived merely because of the disclosure of information,” they ”would all but become worthless.”

Prosecutors did get some welcome news yesterday. Judge Crocker Snyder said she would allow testimony about the psychiatrist’s warning letter, and about Dr. Bierenbaum’s past acts of violence against his wife.

Expected to testify are Hillard Wiese, a lawyer and cousin of Ms. Katz-Bierenbaum. Mr. Wiese has told prosecutors that he received a phone call from his cousin, who sounded distressed, one day in the fall of 1983, and that she said her husband had choked her into unconsciousness the day before.

When she came to, according to Mr. Wiese, Dr. Bierenbaum was standing over her and begging her forgiveness, Judge Crocker Snyder said in the course of her ruling yesterday.

Mr. Wiese then urged her to leave right away, before her husband got home, the judge added.

Another expected witness is a psychologist and friend of Ms. Katz-Bierenbaum’s. The judge will allow the psychologist to testify that in late 1984, Ms. Katz-Bierenbaum showed her a letter written to her by Dr. Michael Stone, who briefly consulted with Dr. Bierenbaum.

Dr. Stone has testified that he determined Dr. Bierenbaum was potentially violent and warned Ms. Katz-Bierenbaum her life was in danger. This testimony could still be quite damaging to Dr. Bierenbaum, legal experts said yesterday.

”The defense is still going to be faced with a situation where the jury may infer that the psychiatrist believes that the doctor was a danger,” said a Manhattan defense lawyer, Gerald Shargel. ”But it is better than facing the live testimony of three psychiatrists drawing that conclusion in front of the jury.”

Source: http://www.nytimes.com/2000/09/13/nyregion/judge-bars-testimony-of-3-psychiatrists-in-murder-case.html?ref=gailkatzbierenbaum

Trial Opens for Doctor Accused of Killing Wife

By KATHERINE E. FINKELSTEIN

Published: October 3, 2000

Prosecutors argued yesterday that a miserable marriage, ending in a flashpoint of rage, led a plastic surgeon to kill his wife 15 years ago and dump her body from an airplane. Defense lawyers called this just a theory — no better or worse than any other — to explain the disappearance of the doctor’s wife, whose body has never been found.

The murder trial of the surgeon, Dr. Robert Bierenbaum, began yesterday in State Supreme Court in Manhattan, with both sides recounting in brief opening statements the turbulent marriage of Dr. Bierenbaum and Gail Katz-Bierenbaum. The defense and prosecutors also gave their explanations for the doctor’s apparent omissions in July 1985, when he reported his wife’s disappearance to the police, and conflicting statements that he made in the years after.

The case, which languished until Dr. Bierenbaum’s arrest last year, has developed through remarkable new leads and has led to legal controversy. In 1983, three psychiatrists warned Ms. Katz-Bierenbaum that her husband was homicidal, but a judge ruled last month that they cannot testify because of patient confidentiality. Dr. Bierenbaum flew his small airplane over the Atlantic Ocean on the day his wife disappeared, but failed to tell the police. Past acts of domestic violence, including when he tried to drown her cat in the toilet, according to court papers, will be part of the trial. Cat lovers were excluded from the jury.

But there is little traditional crime-scene evidence, as Steven Saracco, an assistant district attorney, told the jury yesterday — ”no body, no forensics, no murder weapon, no bloodyclothes, no fingerprints, no brain matter, no body parts.”

There was a motive though, he said. The weekend Ms. Katz-Bierenbaum, 29, disappeared, conditions in the nearly three-year marriage had become ”explosive,” and she was going to tell her husband that she was leaving for good. That was a terrible affront, Mr. Saracco said, particularly given the doctor’s ”controlling nature.” While it was her intention ”to leave her husband,” Mr. Saracco told jurors quietly, ”it was not her intention to drop off the face of the earth.” He repeated the last part of this phrase four times in the course of his opening statement.

Dr. Bierenbaum, 45, sat quietly, scribbling on a legal pad as his second wife, Dr. Janet Chollet, an obstetrician, sat in the front row of the courtroom. The couple live in North Dakota and have a young daughter.

In his 15-minute opening statement, a defense lawyer, David Lewis, argued that Ms. Katz-Bierenbaum was probably dead, but not at Dr. Bierenbaum’s hands. Mr. Lewis said it was her ”risky behavior” with a bad crowd — including extramarital affairs with lovers who used drugs — that led her to wander off from the couple’s Upper East Side apartment to Central Park on the morning of July 7, 1985, never to return home.

”This was a lousy marriage,” Mr. Lewis said. ”He has a temper; she was not a loyal, wonderful person.” But he said there was no flash point; she threatened to leave all the time, he said, and on the day in question, she left the apartment alive.

Mr. Lewis said that a man named Joel Davis, who had never met her, would testify that he saw her alive in an Upper East Side bagel store between 1 and 3 p.m. that day, and went to the police with this information after learning of her disappearance.

Dr. Bierenbaum did not tell the police of his two-hour flight on the day she vanished, Mr. Lewis explained, because after learning of the police’s suspicions, he stopped sharing information with them.

Two witnesses testified about past violence in the marriage and Dr. Bierenbaum’s failure to disclose the flight. But in Mr. Saracco’s opening statement, he asked why Ms. Katz-Bierenbaum would have left home without her wallet, keys, checkbook or medications.

The prosecutor said Dr. Bierenbaum killed his wife, carried her body from the apartment in a duffel bag, put it in the trunk of his father’s Cadillac and drove to the Essex County Airport in Fairfield, N.J. From there, he flew his Cessna 172 airplane over the Atlantic and tossed his wife’s body into the sea, ”where it remains to this day,” he said.

While Dr. Bierenbaum had also reported to the police that his wife had been suicidal, her psychiatrist will testify that she had no desire to harm herself, Mr. Saracco said. Rather, she was ”looking forward to a life without him,” he said.

Source: http://www.nytimes.com/2000/10/03/nyregion/trial-opens-for-doctor-accused-of-killing-wife.html?ref=gailkatzbierenbaum

No Corpse, but Plenty of Precedent

By KATHERINE E. FINKELSTEIN

Published: October 13, 2000

A smart murderer leaves no body behind, Robert Bierenbaum told his wife years ago, according to a witness who testified recently in the murder trial of Dr. Bierenbaum, a plastic surgeon.

Claus von Bulow made this mistake, leaving his wife to linger in a coma, but Dr. Bierenbaum would not be so stupid, he purportedly said.

Fifteen years later, Dr. Bierenbaum is on trial in State Supreme Court in Manhattan, accused of killing his wife, Gail Katz-Bierenbaum, and disposing of her body without a trace. He has pleaded not guilty, and prosecutors are now trying a case with ”no body, no forensics, no murder weapon, no bloody clothes, no fingerprints, no brain matter, no body parts,” as an assistant district attorney, Stephen Saracco, told the jury in his opening statement.

Prosecuting any murder case requires meeting a burden of proof known as corpus delicti: proving that a death occurred and resulted from the criminal actions of the accused. Needless to say, having a corpus helps. But it is not essential.

There are myriad murder cases — many involving Mafia killings — in which bodies vanished into car trunks or river bottoms, never to be seen again. Sometimes, eyewitnesses can testify that they saw the accused with car keys in hand and a large bag at his feet, or heard the buzz of a chain saw and the splash into the water. But what happens without such evidence? According to experts, a trial can turn on subtleties: Does the jury think the accused is capable of murder? Or that the victim might have been killed by someone else? Or even, most dramatic, that the person presumed to be dead really is alive?

”You just have to rule out every possibility other than murder, and convince a jury that there is no other explanation for the person’s disappearance,” said Robert M. Morgenthau, the Manhattan district attorney, whose office successfully prosecuted the mother-and-son con team Sante and Kenneth Kimes in the killing of an elderly Manhattan socialite whose body disappeared.

The history of bodyless murder trials goes back at least to 1792 in England, in a case known as The King v. Hindmarsh. Hindmarsh was accused of throwing his captain from a ship.

Successful convictions in the United States are hardly new.

In 1957, for instance, an investment consultant, Leonard Ewing Scott, was convicted of killing his wife, Evelyn Throsby Scott, and hiding her body inside the concrete supports of a San Diego freeway. The evidence against him was largely circumstantial. Her alcoholism and medical problems, and his discovery that she had been married five times before, drove him to murder, prosecutors asserted.

But several other successful convictions have relied on stronger direct evidence.

Without such smoking-gun evidence, ”You must contend with the ambiguities of life,” said David Rudovsky, a senior fellow at the University of Pennsylvania Law School. ”A lot of people make threats. A lot of people have motives to do bad things.”

And so prosecutors in the Bierenbaum case have been piling threat upon threat, motive upon motive, bad deed upon bad deed.

Friends and relatives of Ms. Katz-Bierenbaum have testified that her husband threatened to kill her and was violent several times in their brief, unhappy marriage. Aviation officials have testified that on the day Ms. Katz-Bierenbaum disappeared, in July 1985, Dr. Bierenbaum flew a small airplane over the Atlantic Ocean for two hours. It was an excursion he tried to conceal by altering flight log books, a prosecution witness said yesterday, and at first failed to mention to detectives.

Earlier this week, Ms. Katz-Bierenbaum’s psychologist testified that Ms. Katz-Bierenbaum showed no signs of being suicidal at the time of her disappearance, a likelihood suggested by the defense.

There are few parallels for building this kind of case without direct evidence, like a trail of blood or an eyewitness to the killing, said Dr. David Davis, senior vice president of Decisionquest, a national trial consulting firm. And so the case may turn on the jury’s ability to imagine that Dr. Bierenbaum — who since the disappearance has built a successful plastic surgery practice in North Dakota and remarried — could be capable of murder. His second wife has been at the trial every day.

Nevertheless, some defense lawyers said that circumstantial evidence could be more powerful than direct evidence because it could be harder to attack. Gerald Shargel, a Manhattan defense lawyer, explained that a single eyewitness could be discredited.

By contrast, the accumulation of circumstantial evidence, when it points to a single, overwhelming motive, can be enough to allow juries a leap of faith.

”It can be woven so tightly that it would defy human experience to suggest acquittal,” said Mr. Shargel, who has represented some clients — including the Teamster leader Tony Provenzano and a Westies gang member, Jimmy Coonan — accused of great efficiency in disposing of corpses. (Mr. von Bulow, for the record, was acquitted at his second trial.)

Of course, the best defense is reasonable doubt, even as to whether the supposed victim is dead. Michael Tigar, a law professor at the Washington College of Law at American University in Washington tells a widely known story of a Chicago defense lawyer who played that card.

In his closing argument, the lawyer told the jurors that if they had any reasonable doubt they had to acquit the defendant. What if the victim was still ”wandering around,” he asked aloud.

Then, he cried out, ”Oh my god, there she is!” The jurors, as one, turned to the courtroom door. Of course, no one was there.

A slam-dunk, or so it would seem. Instead, the jury deliberated for 20 minutes and voted to convict. The forewoman praised the lawyer’s tactic, except for one small oversight: The lone person who did not look up to the courtroom door was none other than his client.

Source: http://www.nytimes.com/2000/10/13/nyregion/no-corpse-but-plenty-of-precedent.html?ref=gailkatzbierenbaum

In Trial Without a Body, Prosecutors Put a Theory on Video

By KATHERINE E. FINKELSTEIN

Published: October 17, 2000

It is possible, even easy, to push a 110-pound body from an airplane while flying the plane at the same time, Manhattan prosecutors want a jury to know.

So yesterday, to prove this point, they showed a grainy homemade videotape featuring a New York City police officer shoving duffel bags stuffed with sand and rice from a Cessna 172 into the Atlantic Ocean. The officer did so unassisted, three times in a row.

The tape, played in the darkened courtroom of Justice Leslie Crocker Snyder, was intended to show how, prosecutors contend, Dr. Robert Bierenbaum disposed of his wife’s body in 1985.

He is on trial in her murder in State Supreme Court in Manhattan.

The authorities arrested Dr. Bierenbaum, a successful plastic surgeon, last year after unearthing flight logs showing that on the day his wife, Gail Katz-Bierenbaum, disappeared, Dr. Bierenbaum, a licensed pilot, flew an airplane over the Atlantic for two hours.

The video, starring two 50-pound bags of sand and one 10-pound bag of long-grain rice on each flight, spoke volumes about the difficulty of prosecuting a murder case with no body, forensic evidence or eyewitnesses, as is the case in the Bierenbaum trial.

The props, loaded into a brown nylon duffel bag and then into the passenger seat of the fixed-wing plane, must stand in for Dr. Bierenbaum’s petite former wife, whose body has never been found.

Prosecutors have asserted that Dr. Bierenbaum strangled his wife in July 1985, loaded her body into a duffel bag and drove to the Essex County Airport in Caldwell, N.J., where he kept his Cessna.

Then he flew over the Atlantic and dumped her body, they charge.

The video, shown to the jury after unsuccessful efforts by defense lawyers to have it excluded, made the maneuver look easy. Sgt. Matthew Rowley, a member of the Police Department’s aviation unit, performed the re-enactment this month. It was videotaped by a helicopter.

The video opened with a close-up shot of of the dead weight: two bags of Play Sand, with a label that said ”easy to carry,” and a 10-pound bag of long-grain rice.

Standing out on the tarmac in a sweater and jeans, Sergeant Rowley loaded the weights into the duffel bag and heaved the bag into the airplane. In response to questions from an assistant district attorney, Adam Kaufman, he narrated the video.

In the next scene, Sergeant Rowley is shown cruising over the Atlantic at an altitude of 1,300 feet, traveling at approximately 85 miles an hour, fast enough not to stall, but slow enough to open the door of the airplane.

With relative ease, he unlocks the passenger door with his right hand and nudges the duffel bag against it. The bag is then shown hurtling from the plane into the ocean. Sergeant Rowley then opens the window to relieve air pressure as he closes and locks the door.

Sergeant Rowley repeats the maneuver on a second flight and then, on a third trip, adds adegree of difficulty, pulling the duffel bag from the passenger seat onto his lap and easing it out the door on the pilot’s side. For a moment, the bag rests between the open door and the side of the plane before it plummets into the sea.

When the lights came back on in the courtroom, Dr. Bierenbaum’s lawyer, David Lewis, briefly cross-examined Sergeant Rowley, asking whether he had made the video in October and dropped the bag into an open sea.

The answer was yes. Mr. Lewis then pointed out that many more boats take to the crowded waters in July, and presumably someone might have seen a duffel bag falling from the sky.

 

Source: http://www.nytimes.com/2000/10/17/nyregion/in-trial-without-a-body-prosecutors-put-a-theory-on-video.html?ref=gailkatzbierenbaum

Confused Account Is Meant To Aid Doctor in Murder Case

By KATHERINE E. FINKELSTEIN

Published: October 19, 2000

The sole defense witness in the trial of a doctor charged with killing his wife struggled yesterday to recall the size and shape of the woman he had gazed at in a Manhattan bagel store 15 years ago, on the day the wife disappeared.

The witness, Joel Davis, 60, testified in State Supreme Court in Manhattan that several weeks after noting the tanned, ”well-developed” woman in the store, he saw what appeared to be her photograph on a missing persons flier and called the police.

This testimony was intended to give jurors the reasonable doubt needed to acquit Dr. Robert Bierenbaum, a plastic surgeon accused of murdering his 29-year-old wife in 1985. If the woman in line at an H & H bagel store that afternoon was indeed his wife, Gail Katz-Bierenbaum, then her husband could not have killed her that morning at home and dumped her body into the ocean, as prosecutors have alleged.

But as Mr. Davis, a retired printer, struggled to recall the charms of the woman he had seen, and to recount the description he had given detectives more than a decade ago, his confusion left jury members laughing and shaking their heads.

First, on cross-examination, Mr. Davis recalled the woman dressed in pink shorts and a loose white T-shirt as petite and large-busted, with an ”excellent, great body.”

However, the assistant district attorney, Stephen Saracco, then read aloud a statement that Mr. Davis gave to an investigator in 1985, saying that as a connoisseur of women’s bodies, he had noticed that ”This broad was perfect.” He had added, ”She was tall, she was statuesque, she was gorgeous.”

When asked about this discrepancy yesterday, Mr. Davis sputtered, ”After 15 years, I confused her with my ex-wife’s body, with my friend’s ex-sister-in-law’s body.” Even the judge, Leslie Crocker Snyder, worked to suppress a smile.

Mr. Davis’s troubles on the stand seemed to begin the moment Mr. Saracco began his cross-examination. Mr. Davis described waiting in line at the bagel store with his girlfriend at the time, a woman he said he had been dating for several months. But Mr. Davis said he could not recall the last name of that girlfriend, with whom he said he had had a two-year relationship and later a friendship.

He had no recollection of what the woman’s friend looked like, he said, but the patterned T-shirt of the other woman, who he said resembled Ms. Katz-Bierenbaum, caught his attention. ”That’s what turned me on,” he said, describing how he stared at her.

”Your girlfriend didn’t mind this at all,” Justice Snyder asked as the jury laughed. Mr. Davis responded, ”I’m a man.”

But his impression of the attractive stranger may not have been as deeply etched in Mr. Davis’s memory as defense lawyers had hoped. Question by question, Mr. Saracco amassed contradictions and apparant gaps in Mr. Davis’s memory.

Mr. Davis had said under direct questioning that he never saw the back of the woman’s shirt. Mr. Saracco asked him why he had previously told prosecutors that he had seen words on the back of the shirt.

”Maybe it’s the way you asked the question,” Mr. Davis responded.

But Mr. Saracco said the question had been simple and straightforward: ”Did you see the back of her T-shirt?”

At almost every turn, Mr. Davis blamed confusion and the passage of time for his difficulties. He asserted, nonetheless, that the woman he had seen in the bagel store was pictured on the missing persons flier.

Prosecutors then called as a rebuttal witness Detective Thomas O’Malley, who was working for the Police Department’s Missing Persons Squad when Mr. Davis called them. Mr. Saracco asked the detective whether Mr. Davis had ever told him that he was positive that Ms. Katz-Bierenbaum was the woman he saw in the bagel store. Detective O’Malley replied ”No.”

But perhaps the strongest contradiction of Mr. Davis’s testimony was offered by the final rebuttal witness, Alayne Katz, the missing woman’s sister. She testified that her sister, who was under 5 feet 3 inches and weighed less than 110 pounds, wore an A-cup bra. To support their contention that she was not ”well developed,” as Mr. Davis had said, prosecutors showed a photograph of Ms. Katz-Bierenbaum on a beach in the Caribbean, wearing a bikini top.

With this photograph entered into evidence, both sides rested in the largely circumstantial case, notable for having no body or any forensic evidence. Closing arguments were scheduled for Monday. Dr. Bierenbaum’s lawyer, Scott H. Greenfield, then gestured to his client, who appeared dejected, to keep his chin up.

Source: http://www.nytimes.com/2000/10/19/nyregion/confused-account-is-meant-to-aid-doctor-in-murder-case.html?ref=gailkatzbierenbaum

Jury Seen as Divided in Doctor’s Murder Trial

By KATHERINE E. FINKELSTEIN

Published: October 24, 2000

An alternate juror in the trial of a plastic surgeon charged with killing his wife 15 years ago said yesterday that he and other jurors thought the prosecutors’ case was weak, since there was no body or direct evidence.

As the jury began deliberations, the four alternate jurors were dismissed and allowed to speak about the trial of Dr. Robert Bierenbaum, which lasted three weeks. The juror, who refused to allow his name to be published, said that he believed the jury was divided and that a number of others shared his view.

His comments came on a day in which a defense lawyer and a prosecutor presented the jury with two entirely different explanations of the defendant’s actions since 1985, when Mr. Bierenbaum’s wife, Gail Katz-Bierenbaum, vanished.

David Lewis, the defense lawyer, contended that Ms. Katz-Bierenbaum might have been killed by a drug dealer or another unsavory character she met while experimenting with drugs and casual sex in a city of heightened violence. The couple’s brief, unhappy marriage, as they lived together on Manhattan’s Upper East Side, was laced with abuse and infidelity.

But Daniel Bibb, an assistant Manhattan district attorney, said that Dr. Bierenbaum was the only person with the motive and means to kill his wife and dispose of her body. He then recounted, in his closing statement of an hour and 45 minutes, the defendant’s ”proactive lies, his reactive lies, his omissions and a calculated pattern of deception.”

Despite copious evidence of violence in the Bierenbaum marriage — in one incident, he choked his wife to unconsciousness; in another, he tried to drown her cat — prosecutors have a difficult case to prove without a body, forensic evidence or eyewitnesses.

The alternate juror said of the prosecution’s case: ”Where’s the body? How do you even know she’s dead?” Given this doubt, he added that defense lawyers might have erred by even acknowledging that Ms. Katz-Bierenbaum was probably dead. As to incidents of violence, he said simply, ”Everybody has fights in their marriage.”

During deliberations yesterday, the jury seemed to be weighing the prosecutors’ theory that on the day his wife disappeared, Dr. Bierenbaum, a licensed pilot, flew a Cessna airplane over the Atlantic Ocean for two hours, but later failed to tell detectives of his trip.

The jury asked to review the following material: Dr. Bierenbaum’s flight log book, in which prosecutors contend he tried to alter the date of that flight by changing the month of July to August; flight records from the aviation company he chartered the plane from; and pictures of a family birthday party that show a smiling Dr. Bierenbaum on the night his wife disappeared.

Mr. Lewis contended in his closing statement that even the actions of an innocent person may seem suspicious when viewed in retrospect. After his wife disappeared, Dr. Bierenbaum ”feels lonely, abandoned,” Mr. Lewis said. And as each new event occurs in the investigation: ”Does he react? Does he rebound?”

As for the ”pattern of deceit” claimed by prosecutors, he addressed Dr. Bierenbaum’s shifting statements about the case by saying, ”If you’ve ever waited for a child or a spouse to come home, explanations change as you’re talking to yourself or other people.”

In his closing argument, Mr. Bibb tried to eliminate all explanations for Ms. Katz-Bierenbaum’s disappearance other than death at her husband’s hands. He wanted control of his wife but never achieved it, Mr. Bibb said. When she vanished, he did nothing to find her, except post a few signs in Central Park at the urging of others.

As for her supposedly risky behavior, he said she was hardly having affairs with homeless men, but rather with an investment manager and a psychologist. And her drug use — she tried cocaine twice — was hardly the stuff of uncontrolled street buys, but rather a neophyte’s experiment with samples obtained from a girlfriend.

There is no evidence that she was killed by anyone but her husband, Mr. Bibb said. Recounting the testimony of a witness that Dr. Bierenbaum had said, ”I hate her so much I could kill her,” Mr. Bibb asked the jury, ”In how many of your relationships have you said that where your spouse ended up dead?”

Source: http://www.nytimes.com/2000/10/24/nyregion/jury-seen-as-divided-in-doctor-s-murder-trial.html?ref=gailkatzbierenbaum

Surgeon Convicted of Murdering Wife

By KATHERINE E. FINKELSTEIN

Published: October 25, 2000

A Manhattan jury yesterday found a plastic surgeon guilty of killing his wife in 1985 and disposing of her body by dropping it from an airplane into the Atlantic Ocean.

The surgeon, Dr. Robert Bierenbaum, 45, remained expressionless as the jury forewoman stood and read from the verdict sheet on the sole count of second-degree murder: ”Guilty.”

At that declaration, the victim’s older sister, Alayne Katz, a lawyer who has waged a 15-year crusade to bring Dr. Bierenbaum to trial, yelled ”Yes,” then put her head in the lap of her younger brother, Steven, and sobbed. The body of their sister, Gail Katz-Bierenbaum, 29, who vanished on July 7, 1985, has never been found.

”The jury was not divided,” said Jason Hauf, 32, who served on the panel of seven men and five women. ”People were pretty much in agreement. All the facts, in totality, kind of drew you in the direction” of guilt, he said by telephone after the verdict was announced.

Dr. Bierenbaum faces 25 years to life in prison and is to be sentenced on Nov. 20.

Though Dr. Bierenbaum was a suspect in Ms. Katz-Bierenbaum’s disappearance for more than a decade, it seemed to some that he had committed the perfect crime. The wife he had fought with and threatened to kill had disappeared without a trace. He moved on, setting up successful plastic surgery practices in Las Vegas and then in Minot, N.D.

But as he dated, remarried and had a child, an investigator with the Manhattan district attorney’s office re-examined the cold case. A search of local airfield records produced evidence that on July 7, Dr. Bierenbaum had flown a Cessna 172N alone over the Atlantic Ocean, but had failed to tell detectives this. Investigators theorized that, after strangling his wife in the couple’s apartment, he loaded her body into a duffel bag and dumped it from the plane. Evidence of his flight and contradictory statements he had made to several girlfriends were enough to bring him to trial.

Prosecutors were then faced with the task of presenting a murder case with only flight logs, a videotaped reconstruction and recollections of an abusive marriage from friends and family as evidence. One witness testified that Ms. Katz-Bierenbaum had said that Dr. Bierenbaum had told her he would not make a mistake like Claus von Bulow did and leave her body behind.

This was the second murder case without a victim’s body that the office of the Manhattan district attorney, Robert M. Morgenthau, has prosecuted successfully this year. In May, a mother-and-son con artist team, Sante and Kenneth Kimes, were convicted of killing an Upper East Side socialite and disposing of her body. In that case, Ms. Kimes’s journals outlined the plot against the victim.

In this case, the evidence was entirely circumstantial, and some of the most potentially damaging evidence against Dr. Bierenbaum was excluded from the trial. Shortly before Ms. Katz-Bierenbaum’s disappearance, Dr. Bierenbaum consulted three psychiatrists about his violent treatment of her; he had choked her to the point of unconsciousness once, and even tried to drown her cat.

All three psychiatrists warned Ms. Katz-Bierenbaum that she was in danger. But the constraints of medical confidentiality led Judge Leslie Crocker Snyder to exclude the psychiatrists’ testimony from the jury. Alayne Katz and several other witnesses testified that her sister had shown them a letter written by one of the psychiatrists urging her to leave the marriage. Ms. Katz-Bierenbaum had planned to use the letter in a divorce proceeding.

Prosecutors were left to present a tapestry of recollections that pointed to Dr. Bierenbaum’s motive for murder and his subsequent efforts to cover his tracks: he was violent and angry about his wife’s desire to leave the marriage; he did little to look for her and appeared relieved after she vanished; he sent a rug in their apartment out for cleaning and denied the police access to a full forensic search.

Another juror, Henry Lumpkin, said yesterday that the absence of a body was ”a holdback” for the jury and that the verdict ”took a lot of heads coming together.”

In the courtroom, after the verdict was read, Dr. Bierenbaum hunched over the defense table, consulting with his lawyer, Scott Greenfield.

His current wife, Dr. Janet Chollet, who sat through every day of the trial, wished her husband luck and slipped from the courtroom just before the verdict was read. The couple have a 2-year-old daughter and live in Minot.

”She chose not to be present; it was too emotional for her,” said another of Dr. Bierenbaum’s lawyers, David Lewis. He added that Dr. Bierenbaum was ”extremely disappointed” with the verdict and planned to appeal. ”There are significant issues, evidentiary issues, things that were admitted,” he said, without elaborating.

In the hallway outside the courtroom, an alternate juror who refused to give her name and did not participate in the deliberations sobbed and embraced Alayne Katz.

”I have a sister who I’m close to, and I can’t imagine what she’s going through,” she said, referring to Ms. Katz, 42.

Standing nearby, Steven Katz, 30, also wept in the hallway and said, ”I think of my mother,” who died in 1990. ”She never had a happy day” since her daughter disappeared.

Photo: Alayne and Steven Katz, brother and sister of Gail Katz-Bierenbaum, leaving court yesterday after a verdict in the trial of Dr. Robert Bierenbaum. A jury found the plastic surgeon guilty of killing his wife in 1985. (Frances Roberts for The New York Times)

Source: http://www.nytimes.com/2000/10/25/nyregion/surgeon-convicted-of-murdering-wife.html?ref=gailkatzbierenbaum