I want to remind you that every individual has a right to an attorney and you can draw no negative inference from the fact that someone hires an attorney. . It follows that the state court's rejection of Bierenbaum's ineffective assistance of counsel claim was not an unreasonable application of the Strickland standard. Robert "Rob" Biernbaum, D.O. She states that on the morning Katz disappeared, Katz was screaming at someone. We're a team that goes into neighborhoods working to stop the spread of HIV through education, prevention, and testing events. The strategy was a reasonable one, given that the trial court would have provided a limiting instruction along the lines of the one given in the charge. You'll find that we're more than just a clinic or a service provider. The state court weighed the five Taranovich factors and concluded that if defense counsel had moved to dismiss the indictment, the motion would unquestionably have been denied. For more information, I heard the cuffs close round hishands. MEDICAID SCAM WAS 2ND MOTIVE: WITNESS - New York Post For this strategy, the defense had no particular need to elicit evidence that Katz was a regular as opposed to occasional user. The evidence at trial was set forth in detail in the district court's February 25, 2008 opinion, and we recount below only the evidence necessary to resolve the issues presented on appeal. Katz told her about an incident, precipitated by smoking, when Bierenbaum became enraged and attempted to strangle her. Segalas testified that Katz told him she was in a very unhappy marriage, that she was afraid of her husband and that he had tried to strangle her once. Bierenbaum argued undue pre-indictment delay to the state court in his motion to set aside the judgment. 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). We're a special place where you'll receive the best HIV/AIDS medical care, prevention, and support services available today from experts who are recognized worldwide for their innovative treatment therapies, research, and clinical trials expertise. Upon selling their Minot condominium, Dr. Bierenbaum took to sleeping on a folding cot in the hangar beside his airplane and showering in the hospital where he still treated patients. Please enter a valid 5-digit Zip Code. Counsel's theory was that Katz left the apartment on Sunday, and met with foul play after she left. Though the five-block downtown area boasts a jail, a courthouse and two competing hospitals, Minot (pronounced MY-not) has a desperate need for people and talent. When two weeks later he saw posters of Katz, he identified her as the woman he had seen, and he called the police. ''He'd come up to you if he saw a mole, and he would touch it,'' Mr. Hussey said. Over the years between Katz's disappearance and his trial for her murder, Bierenbaum offered various accounts of his activities and various theories concerning her whereabouts. Katz asked Beale if she could move in with her. Dr. Bierenbaum specializes in lung cancer, gastrointestinal cancers, and myelodysplasia. Trillium Health welcomes new Chief Medical Officer Regardless of defense counsel's error in referring to the search as a forensic search, the prosecution would also have elicited the fact that Bierenbaum lied to Caruana about the search. at 3107, Oct. 23, 2000. Oppressive prosecutorial delay may violate the Due Process Clause of the United States Constitution. That is one of the theories that could have happened. Dr. Robert Biernbaum is a Emergency Medicine Physician in Victor, NY. ''We're so sparsely populated around here,'' he said, ''we even have to import our criminals.''. The location you tried did not return a result. A state court decision involves an unreasonable application of clearly established Supreme Court precedent if it correctly identifies the governing legal principle but unreasonably applies or unreasonably refuses to extend that principle to the facts of a particular case. 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. He also argued, among other issues, that the trial court erroneously 1) allowed the jury to learn of the existence and nature of the letter written to Katz by Bierenbaum's psychiatrist warning her of the danger Bierenbaum posed to her; (2) allowed various people to testify about Katz's verbal statements to them describing Bierenbaum's threatening remarks and behavior; and (3) permitted the jury to watch the videotaped demonstration showing how a pilot flying solo may load a duffel bag containing a 110-pound body into a Cessna 172 airplane, fly over the ocean and eject the bag. Sherman heard the noise of the high-heeled shoes, then she heard the door slam, and both the shouting and the sound of high heels on the floor stopped. Surgery, Internal Medicine. The motion was denied on September 6, 2005, and leave to appeal was denied on January 12, 2006. BIERENBAUM v. GRAHAM (2010) | FindLaw ''Ten years ago we were a hospital, and now we're a health system,'' Schwann said, with 80 physicians, 7 community clinics and eye-care and mental-health programs. Hirsch also stated that a body could be disarticulated at the joints, a simple process that someone trained in anatomy could accomplish in ten minutes. Penal Law 125.25[1], and sentenced to a term of imprisonment of twenty years to life. Id., 744 N.E.2d at 131 (citations, internal quotation marks and ellipses omitted). Law 470.05[2]. If the jury harbored a reasonable doubt concerning Bierenbaum's guilt, an instruction on jurisdiction would not have assisted the defense. Davis had been in a bagel shop in Manhattan on Second Avenue in the 80's on the afternoon of July 7, 1985, and he noticed an attractive woman wearing a distinctive t-shirt with a non-English word on it. But his life in Minot was already fraying. Image Credit: Stephanie Youngblood/ ABC News 20/20. A strong piece of the defense was the fact that there was no physical evidence to link Bierenbaum to the crime. 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. . In a state that averages two people per square mile, it is more important to embrace newcomers than to fuss with details about the past. University of New England, College of Osteopathic Medicine, Certifications:American Osteopathic Board of Emergency Medicine. Dr. Baran denied that she'd had such a conversation with Bierenbaum and denied that Katz was suicidal. Though he doesn't like to admit it, Mike Berg, the friend from the Rotary Club, is angry. The affair began while Bierenbaum was vacationing in South Hampton on Long Island during the month of August, and lasted about six weeks. 3. The prosecution also produced the testimony of Karen Caruana, a woman with whom Bierenbaum had a brief affair shortly after Katz disappeared. vol. as the organization's new Chief Medical Officer.. Katz told her that she was looking for an apartment and that she was going to tell her husband that weekend that she was leaving. 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. Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. Bierenbaum faults defense counsel for failing to impeach Segalas with his prior statements, claiming that this damaged the defense theory that Katz's drug usage and risky behavior may have led to her disappearance. Kasenbaum testified that Katz told her she was having an affair with a colleague at a hospital where she was interning. Bierenbaum's wife, Gail Katz Bierenbaum, was last seen on July 7, 1985. See Davis, 547 U.S. at 824 (holding that limiting the Confrontation Clause to testimonial hearsay is clearly reflected in the text of the constitutional provision); United States v. Feliz, 467 F.3d 227, 232 (2d Cir.2006) ([A]fter Crawford and Davis, the inquiry under the Confrontation Clause is whether the statement at issue is testimonial.); accord United States v. Williams, 506 F.3d 151, 156 (2d Cir.2007). It was not unreasonable for the Appellate Division to conclude that the reliability of Katz's statements was amply supported. Id. In September Dalsass finally secured permission to search Bierenbaum's apartment. 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. 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. Being essentially softhearted, though, he e-mailed Dr. Bierenbaum before the trial to wish him good luck and got a brief response: ''Thanks. He lied to both officers, telling both of them that he had remained in the apartment until approximately 5:30 p.m. when he left for the party in New Jersey. For more information, go to Dr. Bierenbaum graduated from the Albany Medical College in 1978. O'Malley asked if Bierenbaum had ever hit his wife. Dr. Bierenbaum is board-certified in internal medicine, hematology, and oncology. Former New York surgeon admits killing wife, throwing body from DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. McCullough testified that Katz told her that her husband had gotten angry at her and choked her because she had been smoking a cigarette. 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. '' But when they learned he was a plastic surgeon and was checking for cancer, they softened. The police searched for Katz between her apartment and Central Park and found no trace of her. O'Malley asked if he had ever choked his wife to the point of unconsciousness, and Bierenbaum said that he didn't want to speak about that. I, 6. Dr. Robert Bierenbaum is a trained pilot serving 20 years to life in prison for the 1985 murder of his wife, Gail Katz. Bierenbaum's only witness was Joel Davis, who saw a poster of the missing Katz and reported sighting her on a Manhattan street on the afternoon of Sunday, July 7. Darrel Williams, a prominent eye surgeon and one of Dr. Bierenbaum's closest friends here, recalled of that morning, ''He looked a little haggard and seemed to be rushing around.'' More recently she talked of moving in with a girlfriend in Connecticut. 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. Dalsass testified that Bierenbaum's attorney gave permission for the police to conduct a limited search for items that might help to identify Katz. The sufficiency of the evidence, however, is not before us. Maryann DeCesare, a friend, testified that Katz told her that she was afraid of Bierenbaum's temper and that he had threatened her. 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. Even Dr. Chollet's brother, also a physician, had earlier been recruited to work there. at 583. A state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence. Few questioned Dr. Bob, as they called him, who was convicted last week of murdering his first wife. ''We're from North Dakota and we trust people,'' said Mike Berg, a retired pharmacist and former head of the Rotary Club, who flew to Mexico with Dr. Bob. that denied his petition for a writ of habeas corpus pursuant to 28 U.S.C. One of his duties was to relieve the doorman at lunchtime. It was not objectively unreasonable to do so. The motion was denied. 2005 - 2023 WebMD LLC. Bierenbaum now argues that his counsel was ineffective for failing to properly object to the admission of the videotapes. As physician and friend Marvin proved himself a real . No one in the group would admit to shock when learning of the doctor's past, though the word ''surprise'' brought forth some thoughtful ''mmm-hmms.'' Baran also noted that Katz-Bierenbaum had been apartmenthunting, had gotten a manicure and had bought birth control devicesjust before she vanished. About Robert Bierenbaum . I add a few words because this case troubles me. A New Life Re-examined; After Murder Verdict, Town Questions Doctor, https://www.nytimes.com/2000/10/30/nyregion/a-new-life-re-examined-after-murder-verdict-town-questions-doctor.html. He faces 25 years to life and is to be sentenced on Nov. 20. See Bierenbaum, 748 N.Y.S.2d at 589. (This case turns on the lack of evidence.) In order to put the absence of physical evidence in context, the prosecution would have been permitted to inform the jury that the police were constrained to a limited search of the apartment several weeks after the disappearance. The jury also learned that a Cessna 172 Skyhawk, the airplane that Bierenbaum rented, is a stable, easy-to-handle four passenger aircraft. 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. '' The next day, the news hit that he was in New York and under arrest for murder. 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. On cross-examination Davis admitted that he had told an investigator for the defense that the woman he'd seen was tall and statuesque, and explained that he had confused his description of the missing woman by likening her to two different women, one tall with her face and one short with her body. Alayne Katz, Katz's sister, testified that Katz had called her in the fall of 1983, extremely upset, and told her that her husband had tried to strangle her, that she lost consciousness, Bierenbaum revived her and apologized profusely. Please try again. School of Medicine - Loma Linda University. Failure to properly object to the admission of the videotaped demonstration. All rights reserved. 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. Phone: (585) 754-7858,(585) 545-7200. Mr. Berg recalls it as the most remarkable experience of his life, one that ''fulfills a person's reason for being here.''. One recent morning at Pietsch's airfield, where Dr. Bierenbaum spent hours tinkering with his plane and teaching flight safety for the Federal Aviation Administration, mechanics and pilots grounded by fog were eating apple pie. Think about the defendant. If you wanted to start a new life, free of reproach or inquiry, this remote prairie town of 35,500 might be the place. You watch as it literally squeeze[s] the life out of another human being. All this means that the decision of the district court is properly affirmed. But he chokes her much harder than he'd done when she was only having a cigarette. Did Dr. Robert Bierenbaum Kill His Wife Gail Katz? 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. 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. [T]he question of whether a federal constitutional question was sufficiently asserted in state courts to form the basis of a federal habeas petition is a question of federal law which the federal courts must resolve for themselves. Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir.2009) (quoting DiSimone v. Phillips, 461 F.3d 181, 189 (2d Cir.2006)). Sherman believed that Katz left the apartment when the door slammed. 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. Feb. 25, 2008). Kasenbaum saw Katz on the day before she disappeared. Bierenbaum contends that even if Alvarez's recollection was shaky, his testimony was essential to counter the prosecution's argument that Bierenbaum lied when he told Detective O'Malley that a doorman named Edgar had seen Katz leave the building. In addition to the evidence detailed above, the prosecution marshaled a wealth of circumstantial evidence that, in the words of the Appellate Division, when attentively review[ed] and critically assesse[d] , and after applying all natural and reasonable inferences, led to the inescapable conclusion that Bierenbaum murdered his wife on July 7, 1985, and the evidence excludes beyond a reasonable doubt any reasonable hypothesis of innocence. People v. Bierenbaum, 748 N.Y.S.2d 563, 574 (N.Y.App.Div.2002). Throughout Bierenbaum's trial and the direct appeal of his conviction, the admission of statements by a declarant not present at trial was governed by Ohio v. Roberts, 448 U.S. 56 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004)). UC San Diego Health Physician Network is an alliance of health care providers based in San Diego, Riverside and Imperial counties. Only later would he learn what had happened. Dr. Roberta Karnofsky, an anesthesiologist, had a year-long relationship with Bierenbaum beginning in fall 1985, while she was a medical student under his supervision.