Robert Bierenbaum Trial: 2000

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Robert Bierenbaum Trial: 2000

Defendant: Robert Bierenbaum
Crime Charged: Murder
Chief Defense Lawyers: Scott Greenfield, David Lewis
Chief Prosecutor: Daniel Bibb
Judge: Leslie Crocker Snyder
Place: Manhattan, New York
Date of Trial: October 2-24, 2000
Verdict: Guilty
Sentence: 20 years to life

SIGNIFICANCE: Fourteen years after the disappearance of his wife, a prominent New York City doctor was tried and convicted for her murder, although her body was never found.

Dr. Robert Bierenbaum moved after his wife's July 7, 1985, disappearance from their New York City apartment—first to Reno, Nevada, in 1989, and then in 1996, to Minot, North Dakota. Fourteen years later prosecutors would charge that Bierenbaum had murdered Gail Katz Bierenbaum, packaged her body, and then dumped it from a Cessna 172, flying over the Atlantic Ocean somewhere between Montauk, New York, and Cape May, New Jersey.

After Gail vanished, her husband told police that she had left their apartment on East 85th Street in Manhattan following a fight, stating she was going to Central Park to calm down. A friend would later testify that Bierenbaum had speculated that his wife had been abducted or murdered by drug dealers with whom she was acquainted. As all their friends knew—and Bierenbaum acknowledged then and would later—their relationship had been a troubled one.

In Nevada and in North Dakota, by all accounts, Bierenbaum led an exemplary life. His medical practice flourished and, from 1990 on, he frequently flew his own plane to El Fuerte, Mexico, to perform free reconstructive surgery on poor children with cleft palates. He remarried and his new wife, Dr. Janet A. Chollet-Bierenbaum, praised him as a caring and loving husband. Friends believed that the first time around he simply had had the misfortune to marry a tormented, manipulative, and suicidal woman.

Growing Suspicions

Police investigators and Alayne Katz, Gail's sister, never bought into the picture of Robert Bierenbaum as a put-upon husband. They suspected him of murder from the beginning, even if there wasn't much evidence or even a corpse. Immediately after Gail's disappearance, Alayne launched a campaign against him, writing letters to his New York neighbors and to hospitals where he worked, and would take credit for driving him from New York. In 1989, she believed that a female torso washed ashore on Staten Island was that of her dead sister. However, in 1997, when Alayne and her brother Steven had the body exhumed, a DNA test revealed the body was not Gail's.

Alayne told reporters that her sister had confided to her that Bierenbaum once dunked her cat in a toilet boil and was often violent. Indeed, on November 12, 1983, Gail had filed a police report claiming that her husband had choked her until she lost consciousness. Later, police investigators traveled to Las Vegas where they questioned acquaintances of Bierenbaum, some of whom fed their suspicions with hearsay comments. But what finally convinced police and prosecutors they had enough evidence to make a murder case was what Bierenbaum hadn't told them—that he had taken an airplane out for a two-hour flight on the day his wife disappeared. Moreover, although airport records later verified the trip, it appeared he had attempted to alter the flight log. Brought back from North Dakota, Bierenbaum was arraigned in New York City on December 8, 1999, and freed on bail to await trial.

The Trial

When the trial opened on October 2, 2000, the press was focused on how the prosecutors would solve the problem of the "missing body." Basically, the law demands that the prosecution of any crime must pass the corpus de/ecti test, which refers to the "body of the crime," not a human corpse, proving that the crime actually took place. Normally, the prosecution does base a murder case on a dead body, or on other physical evidence, but legal history is replete with murder convictions won by prosecutors who built the "body of the crime" without such traces, effectively demonstrating that a crime had taken place by circumstantial evidence. Although there are always obstacles to such a presentation, the prosecution built that argument brick-by-brick in the Bierenbaum case.

Without any trace of her corpse, prosecutors had to prove that there had been no sign of Gail Bierenbaum's existence since the date of her disappearance. That required testimony from friends and family members who claimed not to have heard from Gail since she disappeared. Investigators also explained how they had combed through records across the United States without finding any trace of her. There had been no subsequent activity in her bank, credit card, or Social Security accounts.

Prosecutors also had to present a theory of the case illustrating the circumstances under which the murder could have happened and explaining what the defendant's motive might have been, including evidence of a troubled relationship. Gail Bierenbaum had had affairs with at least two men and had separated more than once from her husband. The prosecution claimed that on the weekend of her disappearance she intended to tell her husband that she was leaving permanently for another man.

Prosecutor Daniel Bibb claimed that Bierenbaum had strangled his wife after she told him she was ending the marriage. The prosecution contended he then placed her body in a duffel bag and put it in the trunk of his father's Cadillac. Next, according to Bibb, he drove to the Essex County Airport in Fairfield, New Jersey, where he rented a plane, flew out, low over the ocean, and disposed of the body. A police reenactment was videotaped and shown to the jury, demonstrating how bags could be dumped from an identical airplane.

The prosecution showed that Bierenbaum had lied repeatedly and had given conflicting versions of specific events. For example, Bierenbaum had falsely claimed that a private detective had spotted his wife as a waitress in a California resort after her disappearance. Another lie was that Gail's psychotherapist, Dr. Sybil Baran, had told him his wife was suicidal. Dr. Baran testified that she had never reported such a thing. Baran also noted that Gail had gone apartment hunting and had bought birth control devices just before she disappeared, hardly the acts of someone contemplating suicide.

But the most damning lie was one of omission—that Bierenbaum had never disclosed to the police a two-hour flight on the day his wife disappeared and then had apparently attempted to cover up the flight by altering the log.

Three psychiatrists had warned Gail Bierenbaum that her husband was homicidal, but Judge Leslie Snyder ruled that they could not testify because of patient confidentiality. The judge said she was distressed that she had to exclude testimony of the three psychiatrists who were impressed by the danger posed by the defendant, but that she had to balance that against the protections afforded by the law to patient-doctor relationships. Prosecutors argued that Dr. Bierenbaum had waived his right to confidentiality by allowing his own psychiatrists to speak about his treatment with his parents and his wife. However, two groups opposing the testimony, the New York State Psychiatric Association and the American Psychoanalytic Association, argued in a brief that the waiver of confidentiality that allows psychiatrists to warn third parties of potential harm by a patient ends when that threat ends. The "goal of warning," argued the attorney for the psychiatric association, "is to protect people, not to prosecute them." Therapists feared that use of such evidence in court would discourage patients from sharing feelings of violence in the future.

The defense strategy was based on shooting holes in the prosecution case, rather than risk putting Bierenbaum on the stand to testify in his own defense. Defense attorney David Lewis claimed the prosecution's case was based entirely on guesswork. There were no eyewitnesses and no physical evidence. Lewis admitted that Gail's disappearance with no trace did suggest she was dead, but he claimed no one could possibly know how she died. The defense also pointed to her risky behavior, including her love affairs with drug users. Under the defense's theory of the case, Gail's many threats to leave her husband suggested she might have done so and then met with foul play. Moreover, the defense argued that she had a background of erratic behavior and had once attempted suicide.

After two weeks of testimony and two days of deliberation, on October 24, the jury found Bierenbaum guilty of second-degree murder. State sentencing rules called for a minimum sentence of 15 years to life and a maximum of 25 years to life. On November 30, 2000, Judge Snyder sentenced Bierenbaum to 20 years to life. Bierenbaum's appeal is pending.

—Rodney Carlisle