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Looking back, people see sinister clues in the fact that his socks were mismatched, his airplane a mess. 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. 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. ''Murderer'' is the word Ms. Katz-Bierenbaum's sister, Alayne Katz, consistently used to describe him. Defense counsel made no contemporaneous objection, but after the summation and before the jury charge he moved for a mistrial on that and other grounds. CALABRESI, Circuit Judge, filed a concurring opinion. Under 2254(d)(1), a state-court decision is contrary to clearly established Supreme Court precedent if its conclusion on a question of law is opposite to that of the Supreme Court or if the state court decides a case differently than the Supreme Court's decision on a set of materially indistinguishable facts. Id. . Defense counsel decided not to call Alvarez. How close up you are with a person that you are choking Strangulation is up close and personal. Law 290.10[1]. In 1998 the investigation was reopened, and the body was exhumed and determined by DNA comparison not to be Katz. In the 1920's, whiskey traffickers lived among the Lutheran churches and businesses. Bierenbaum argues that the challenged statements were inadmissible under either the Roberts or the Crawford and Davis standard: that the statements were admitted for their truth, that no hearsay exception applied, that the statements showed no particularized guarantees of trustworthiness, and that the statements were testimonial. 2254(d); see also, e.g., Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008). They later moved to. Dr. Bierenbaum told locals that he loved his new town for being free of traffic and crime. United States v. Langella, 776 F.2d 1078, 1083 (2d Cir.1985) (citing Lovasco, 431 U.S. at 790); accord United States v. Cornielle, 171 F.3d 748 (2d Cir.1999). 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.'' I believe the representation given to Appellant by his trial counsel left a lot to be desired, though, for the reasons stated in Judge Sessions's opinion, it does not ultimately amount to constitutionally inadequate representation. 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. ANGELA ABRAHAM. O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. Strickland, 466 U.S. at 689 (citations and internal quotation marks omitted). IV, 3009-10, Oct. 18, 2000. ''Helpful'' is the word most people use here to describe Dr. Bierenbaum, a man who fixed his colleagues' computers and brought his neighbors chicken soup. Randy Schwann, Trinity's marketing director, explained why Dr. Chollet and her husband, along with physicians from places like Walter Reed Army Medical Center and UCLA Medical Center, were recruited here. amend. He works in Grand Forks, ND and specializes in Surgery and. Now we will tell you that the evidence will also show that she is dead. I, 1889. (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 search was thus limited to the scope of the permission given. The petition was denied on March 9, 2006. 2005 - 2023 WebMD LLC. It is not offered for such a purpose and it must not be considered by you for such a purpose. In his opening statement counsel told the jury You will also learn that the police conducted a forensic examination of the doctor's apartment, the doctor's car, his friend's car that he borrowed some time that weekend, the airplane and found no evidence of blood or any other biological determinations because this case also turns on the lack of evidence. Id. as the organization's new Chief Medical Officer.. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Close to midnight that evening Bierenbaum telephoned Dr. Yvette Feis, one of Katz's friends, asking if she knew where Katz was. Robert "Rob" Biernbaum, D.O. According to her affidavit, she was acutely aware of Katz, who frequently screamed at her husband and walked around noisily in high-heeled shoes. To prevail on such a claim under federal law, Bierenbaum must prove that the delay resulted in actual prejudice and that the prosecution's reasons for the delay were improper. at 3107, Oct. 23, 2000. 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. Nontestimonial statements therefore do not implicate the Confrontation Clause. But his life in Minot was already fraying. vol. Bierenbaum, 44, was charged Tuesday with murdering Katz, loading her body into his twin-engine plane and flying out over the Atlantic to dump her in a watery grave. He returned from New Jersey at approximately midnight. He works in Rochester, NY and 8 other locations and specializes in Emergency Medicine and Family Medicine. He has 45 years of experience. [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)). The prosecution argued:What does he do? Friends and family posted pictures of Katz in the neighborhood. Consistently absent from any of his accounts of his activities on Sunday, July 7, 1985 was the fact that he rented an airplane in New Jersey that afternoon and went flying. Dr. Biernbaum graduated from the University of New England College of Osteopathic Medicine in 1997. asked Stephanie, a bookkeeper in town who was treated by Dr. Bob and who asked that her last name not be used. Was she killed by drug dealers? He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. Dr. Leigh McCullough, Katz's employer in the fall of 1983, noticed bruises on Katz's neck one day. visit www.rpcn.org. That is not disputed. TimesMachine is an exclusive benefit for home delivery and digital subscribers. Bierenbaum called her therapist and others on that day asking if they had seen her. 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. 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. Bierenbaum repeated that he had remained in the apartment all day until 5:30 p.m., when he left for the family party in New Jersey, arriving there at approximately 6:30 p.m. ''Most people don't know that Minot, North Dakota, is on the face of the map, so why come here?'' The location you tried did not return a result. During that period Caruana and Bierenbaum discussed Katz's disappearance. Pro. The educational structure is rigorous, but the real draw of this school is the open and accepting atmosphere. Katz told him that she was going to move in with her friend Ellen Schwartz in Connecticut. 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). In July, early in the investigation, Dalsass asked Bierenbaum if he could look around the apartment. Flight Log the KeyIt was after prosecutors found Bierenbaums flight log, whichthe law requires pilots to maintain, that they suspected they couldmake a murder case against him. 2120, 2008 WL 515035 (S.D.N.Y. NEW YORK Dr. Robert Bierenbaum maintained his innocence in 2000 as he was tried and convicted of killing his first wife 15 years before. They would have to have ignored the fact that when asked about that Sunday fifteen years ago, Alvarez, like Rivera, did not recall seeing Katz leave the building. Katz told DeCesare that she had gone out on the terrace of their apartment to smoke a cigarette, where he confronted her and choked her. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. Think about him looking at her while he squeezes the life out of her. Feb. 25, 2008). provider will be able to view your information so they can provide the most informed care and treatment. On appeal to the Appellate Division, First Department, Bierenbaum presented, among other questions, the following: Whether Dr. Bierenbaum was denied a fair trial by the improper admission of widespread testimony recounting statements purportedly made by Ms. Bierenbaum, which did not satisfy any hearsay exception or the confrontation clause of the state and federal constitutions ? Similarly, in his letter seeking leave to appeal to the New York Court of Appeals, he argued that leave should be granted to review the admissibility of background evidence through hearsay declarations, whether in domestic violence cases or otherwise, and to consider whether admission of such evidence denies a defendant his state and federal rights of confrontation.. it is a first professional graduate degree awarded upon graduation from medical school. ''At first it was just, 'That guy is nothing but strange,' '' said Curt Hussey, operator of the town's private flight school at Pietsch's airfield. See Bierenbaum, 748 N.Y.S.2d at 589. ''The guy was super nice,'' said Jason Naylor, a fellow pilot. 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. The conviction leaves the people of Minot with a question. 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. Bierenbaum told Feis that the cats had fouled the rug and that he was having it cleaned. 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. RochesterHealth.com is a nonprofit 501(c)(3) community-centered website serving as a connection to Rochester-area healthcare resources. See Feliz, 467 F.3d at 232. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). Medical School / Professional School: The prosecution called Katz's sister Alayne as a rebuttal witness. The district court determined that Bierenbaum failed to exhaust his state court remedies with regard to his Confrontation Clause claim, finding that he did not argue the claim in his application for leave to appeal to the New York Court of Appeals. Robert Bierenbaum (born July 22, 1955) is an American former plastic surgeon and convicted murderer. Certain of these witnesses also testified that Katz told them she had received a letter from Bierenbaum's therapist warning her that Bierenbaum was a danger to her, and that Katz intended to threaten Bierenbaum with disclosure of this letter. Prior to MultiCare, Biernbaum was Rochester Regional Health System's chief architect for all Epic solutions and in charge of informatics for five hospitals and more than 100 ambulatory sites. The Appellate Division ruled that the statements bore numerous hallmarks of reliability: She was speaking spontaneously; she repeated the statements separately to various people in her life; her statements about the troubled side of their marriage were a natural consequence of corroborated facts about their marriage; she was, by all indications, in good mental health; there appears no reason for her to have fabricated the matters she discussed at the time of her utterances; and her statements largely concerned private matters that some would be embarrassed or otherwise reluctant to disclose.