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The second murder prosecution in Manhattan this year to proceed exclusively on circumstantial evidence opened this week with both defense and prosecutors agreeing that the alleged victim — the wife of the defendant, a plastic surgeon — is indeed dead. Even though New York County District Attorneys are building their second-degree murder case without the victim’s body or other forensic evidence, the defense chose not to deny the death. Instead, David L. Lewis, defense lawyer for plastic surgeon Robert Bierenbaum, told jurors that he would demonstrate reasonable doubt in the case by posing an alternative scenario for the death of Gail Katz-Bierenbaum. The opening statements came in a case that is expected to last up to six weeks before Manhattan Supreme Court Justice Leslie Crocker Snyder. Lewis’ strategy differs dramatically from the one employed in the first Manhattan murder prosecution this year to be based solely on circumstantial evidence. In that case, lawyers for Sante and Kenneth Kimes said prosecutors could not prove the alleged victim’s death without producing any trace of the deceased. Both Kimeses were convicted in the trial, which was the first successful murder prosecution in New York state without a body or any physical evidence. In the trial People v. Bierenbaum Manhattan prosecutors sought to convince the jury that Bierenbaum had a motive to commit murder and had acted deceptively. Manhattan Assistant District Attorney Stephen Saracco said Bierenbaum had reacted with violence when his control of his wife was threatened, and that the killing was done in reaction to Katz-Bierenbaum’s decision to end the marriage. He also emphasized to the jury acts which he characterized as a cover-up by Bierenbaum, beginning with his failure to report his wife as missing until she was gone almost a day. Bierenbaum, a licensed pilot, also did not immediately reveal to law enforcement officials that he rented an aircraft for a two-hour flight on the day of Katz-Bierenbaum’s disappearance, July 7, 1985. Police initially considered Katz-Bierenbaum’s disappearance to be a missing-persons case. The case was reopened in 1997, after Manhattan prosecutors became concerned by apparent shifts in the doctor’s explanation of events in the years after 1985. Bierenbaum’s defense counsel promised jurors that he would produce an eyewitness to destroy the prosecutions’ time line. He also said that Katz-Bierenbaum could very well have been killed because as she became increasingly estranged from Bierenbaum, she fell in with a crowd of drug dealers. While the defense and prosecutors could agree on the fact of the victim’s demise, they could not agree on her proper name. Lewis called her by her married name, “Gail Katz-Bierenbaum,” while Saracco called her “Gail Katz.” But there was agreement on another matter: Lewis and Saracco both said that Bierenbaum and Katz-Bierenbaum had a tumultuous and unhappy marriage. The sides, however, disagreed on the significance of that fact on Katz-Bierenbaum’s death. To Saracco, July 7, 1985, was when tensions between the spouses reached a “flash point” that culminated in the murder. “The marriage was deeply troubled from the beginning, because of the defendant’s controlling nature,” Saracco told jurors. “He had a deep need to control each and every aspect of her behavior, and when that control was resisted, he would often react in a violent manner.” Gail Katz-Bierenbaum was definitive in announcing that she would leave her husband,. Saracco said. And that was more than Bierenbaum could bear. “The defendant saw his control evaporate,” the prosecutor said. The defendant’s reaction was to kill his wife, package her body in a duffel bag, and dump her remains from a rented Cessna aircraft somewhere between Montauk, Long Island, and Cape May, New Jersey. Her body has never been found. Lewis said that the marital tensions culminated in Katz-Bierenbaum’s “engaging in increasingly risky behavior” in choosing friends. He said that she indulged a “dark side,” which included friendships with unsavory characters. The killing was allegedly performed in the couple’s East Side apartment, Saracco said, after 10:30 a.m., when Katz-Bierenbaum took a telephone call from a friend, Francesca Beal. But Lewis told the jurors that another person, Joel Davis, saw Katz-Bierenbaum alive between 1 p.m. and 3 p.m. on the afternoon of July 7. Lewis told the jury that if Davis did see her that afternoon, Bierenbaum could not have performed the murder and disposed of the victim in the time line posited by the government. “Once Joel Davis sees Gail Katz-Bierenbaum alive on the afternoon of July 7, their theory washes away,” Lewis said. Prosecutors say that Katz-Bierenbaum’s body was taken up in Bierenbaum’s rented Cessna for a two-hour flight on the afternoon of July 7, 1985. Justice Snyder has ordered that Bierenbaum produce flight logs for that day in order to nail down the precise time of the flight. Prosecutors were set to begin their presentation yesterday afternoon by recounting an incident of abuse by Bierenbaum that allegedly occurred more than a year before Katz-Bierenbaum’s death. In that incident, Bierenbaum, “a zealous anti-smoker,” choked his wife when he found her smoking a cigarette on the terrace outside their apartment, according to Saracco. Manhattan Assistant District Attorney Daniel Bibb is also handling the prosecution.

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