Robert Bierenbaum Trial: 2000

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.