20 by Justice Leslie Crocker Snyder. Katz told Feis that she intended to use the letter as leverage in divorce proceedings by threatening to use it to ruin his career. Claim your profile (701) 780-5260 . Robert "Rob" Biernbaum, D.O. Dr. Robert M Biernbaum - Rochester NY, Emergency Medicine at 259 Monroe Ave. 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. This Court granted a certificate of appealability on September 23, 2008. Dalsass had numerous telephone calls from members of Katz's family during that same time period. In 1999 Bierenbaum was indicted and charged with murder in the second degree in her death. 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. Bierenbaum stated that he had come home from work at approximately 5 p.m. on Friday evening, that they went to a movie about 8 p.m. and returned about midnight. When O'Malley followed this up in a second conversation, Bierenbaum said that Edgar was now not sure whether he'd seen her on that or another day. See People v. Bierenbaum, 790 N.E.2d 281 (N.Y.2003). Had the defense called Alvarez, and had he testified in accordance with his affidavit, the jury would have been presented with the testimony of the relief doorman, who remembered not only the departure of a particular tenant, but what she was wearing on an unremarkable Sunday fifteen years before the trial. Sherman's testimony would not have undermined confidence in the jury's guilty verdict. A state prisoner may fairly present to the state courts the constitutional nature of his claim by claim[ing] the deprivation of a particular right specifically protected by the Constitution. Daye v. Att'y Gen. of the State of N.Y., 696 F.2d 186, 193 (2d Cir.1982) (en banc). Bierenbaum said he would get back to him, but did not. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. This was not the first time Bierenbaum had choked her, but it was the first time that she lost consciousness. 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. 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. Janet and the baby are fine. Denise Kasenbaum, a friend, testified that Katz had told her there were problems in the marriage, incidents of violence, that Bierenbaum was very controlling, and that she was not happy. Dr. Jason Bierenbaum is an oncologist in McKeesport, Pennsylvania and is affiliated with multiple hospitals in the area, including UPMC Presbyterian Shadyside and UPMC East. She wanted to know whether Bierenbaum had flown an airplane on the day of his wife's disappearance. The defense, knowing that the alternate scenarios for Gail Katz's death had little in the way of factual support, apparently chose to cast all of the scenarios-the prosecution's included-as merely theories, which could not be proven beyond a reasonable doubt. He said, 'I just have a lot on my mind.' 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. See United States v. Lovasco, 431 U.S. 783, 789 (1977). The affair began while Bierenbaum was vacationing in South Hampton on Long Island during the month of August, and lasted about six weeks. The Appellate Division did not explicitly address Bierenbaum's confrontation clause claim,1 and the Court of Appeals denied leave to appeal without explanation. Please enter a valid 5-digit Zip Code. The prosecution argued:What does he do? Although the delay was substantial, Bierenbaum suffered no prejudice, and he was not incarcerated prior to trial. Assuming that Katz's statements were admitted for the truth of the matters asserted,2 they meet the Roberts standard for admissibility. ''He brought us all little vials of grease'' for airplane parts, said Chris Grima, a mechanic whose wife made the pie. Over defense objection eleven witnesses-friends, relatives, colleagues and Katz's therapist-were permitted to testify about conversations they had with Katz between 1983 and 1985 in which she talked about the state of her marriage, her fear of Bierenbaum's temper, his controlling behavior, his threats, and an argument in 1983 during which he choked her to the point of unconsciousness. The Appellate Division held that Bierenbaum had not effectively protested the admission of the videotapes under New York's preservation rule, which require[s], at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error. Richardson v. Greene, 497 F .3d 212, 218 (2d Cir.2007) (quoting Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir.1999)); see N.Y.Crim. 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. 5. Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. See Williams, 529 U.S. at 413; Ramdass v. Angelone, 530 U.S. 156, 166 (2000); accord Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir.2002). Bierenbaum argues that even if it were within the range of reasonable strategic choices to concede that Katz was dead, it was not reasonable to concede that she died on the Sunday she disappeared. They found nothing, I've been cleared, and in the time frame we're talking about it's clear that he's telling Karen Caruana that the cops have cleared him before they've even been inside his apartment Cops hadn't searched anything yet. Failure to properly object to the admission of the videotaped demonstration. In summation, counsel attacked the prosecution's use of the videotapes that showed how a body could have been loaded into an airplane and dropped into the sea, asserting that the videotapes did not supply proof of what happened to Katz. ''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. In their last telephone conversation, Katz told DeCesare that she planned to ask Bierenbaum for a divorce, and that she had secretly borrowed $10,000.00 and put it in a safe deposit box to pay for a year of graduate school. But last week, a Manhattan jury found Dr. Bierenbaum guilty of killing his first wife and dumping her body from an airplane. On the evening of Sunday, July 7, 1985, Bierenbaum attended a family gathering for a nephew's birthday in New Jersey, without Katz. 7. Robert "Rob" Biernbaum, D.O. On appeal to the Appellate Division, First Department, Bierenbaum argued that his guilt was not proven beyond a reasonable doubt. 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. The police report also stated that Katz phoned Segalas in June 1985 and asked him to examine some cocaine she had bought, because she thought she had received a short amount. The email address cannot be subscribed. IV, 3194, 3227-28. 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.'' We disagree. at 3107, Oct. 23, 2000. On October 17, 1986 she learned that Bierenbaum had rented an airplane from Mac Dan Aircraft Rental at Caldwell Airport in Fairfield, New Jersey on July 7, 1985, the day Katz disappeared. The jury also learned that a Cessna 172 Skyhawk, the airplane that Bierenbaum rented, is a stable, easy-to-handle four passenger aircraft. Chokes her much harder than when he had only strangled her to unconsciousness. 2. Contact us. Katz told her that the night before she took her Graduate Record Exam, Bierenbaum choked her to unconsciousness because she smoked a cigarette. When a state court has adjudicated the merits of a petitioner's claim, a federal court may grant an application for a writ of habeas corpus only if the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. Sergeant Matthew Rowley of the New York police department's Aviation Unit executed three flights in a Cessna 172 from Caldwell Airport on October 11, 2000, during the trial. Law 470.05[2]. Prior to that date he had not been permitted to enter the apartment. 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. See People v. McLaughlin, 606 N.E.2d 1357, 1359 (N.Y.1992) ([F]or the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State.). Bierenbaum also takes exception to his trial counsel's failure to object to the prosecution's contention that he prevented a complete forensic examination of the apartment. Boys don't touch boys here.' The United States Supreme Court decisions in Crawford and Davis v. Washington, 547 U.S. 813 (2006), confined the scope of the Confrontation Clause to testimonial statements. Dr. Bierenbaum specializes in lung cancer, gastrointestinal cancers, and myelodysplasia. He described her to the jury as deeply tanned, about five foot one, with a well-developed body. Bierenbaum argued undue pre-indictment delay to the state court in his motion to set aside the judgment. But last week, a Manhattan jury found Dr. Bierenbaum guilty of killing his first wife and. They later moved to. Failure to cross-examine witness Anthony Segalas concerning Katz's use of cocaine. People here were on their guard at first because he dressed differently, had longer hair and a ''weird intensity'' about him. She provided a picture of Katz from the summer of 1985, and described her as less than five foot three, weighing approximately 110 pounds, with an A-cup bra size. Dalsass testified that Bierenbaum's attorney gave permission for the police to conduct a limited search for items that might help to identify Katz. DeCesare said that Bierenbaum often mentioned water, that Katz was outside cooling off.. 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. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. Katz also told Kasenbaum that she had gotten a letter from Bierenbaum's psychiatrist. Bierenbaum argues that his trial counsel was ineffective for failing to request a jury charge to the effect that the prosecution must prove beyond a reasonable doubt that the crime occurred within the state of New York. Though he doesn't like to admit it, Mike Berg, the friend from the Rotary Club, is angry. The performance was videotaped, and the jury was shown the tapes. vol. None of the alleged errors, individually or collectively, amount to constitutionally deficient representation. The respondents argued this position below, but on further review have withdrawn their argument, agreeing with Bierenbaum that he presented his constitutional claim in his letter brief submitted to the New York Court of Appeals on December 10, 2002. He did not see her return. 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. He has 45 years of experience. He received his. Detective O'Malley testified that Bierenbaum told him he'd made a mistake, and that Rivera wasn't sure when he'd seen Katz. Katz recounted an incident when Bierenbaum discovered her smoking a cigarette, got very angry, came at her and choked her. He knew in July of 1985, what it would take to kill her. E.g., Henry v. Ricks, 578 F.3d 134, 137 (2d Cir.2009). 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. Indeed, Bierenbaum does not argue to this Court (except parenthetically) that the challenged hearsay declarations were in fact unreliable. [I]n a proper case, a lengthy and unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown. People v. Singer, 376 N.E.2d 179, 186 (N.Y.1978). Bibb said Bierenbaum put his wifes corpse in a large duffelbag, drove it to a New Jersey airport, took the body up in a Cessna172 and dropped it into the ocean somewhere between Montauk, onLong Island, and Cape May, N.J. 24/7 coverage of breaking news and live events. Think about him looking at her while he squeezes the life out of her. You'll find that we're more than just a clinic or a service provider. Im very relieved, said Alayne Katz. Robert Bierenbaum (born July 22, 1955) is an American former plastic surgeon and convicted murderer. He also was the executive responsible for quality measures and meaningful use. She would have had to admit that she did not see Katz leave, nor could she be sure that the door was the exterior door, rather than an interior door. The state court concluded therefore that defense counsel was not ineffective for failing to move to dismiss for pre-indictment delay. I join Judge Sessions's opinion fully because I believe it to be correct on the law. 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. One of his duties was to relieve the doorman at lunchtime. Bierenbaum claims that his counsel was ineffective because his motions did not specify that he was challenging the element of intent to kill, and that therefore he could not seek review of this claim on direct appeal. Two or three months later Bierenbaum told another of Katz's friends, Maryann DeCesare, that he thought she was waitressing by a seaside community. He recalled that when David Berkowitz (later known as Son of Sam) spent time at the Minot military base, animals in the area turned up mutilated. We're a community of medical and social service professionals who meet patients and clients in a healing and affirming environment where they can feel supported, cared for, and cared about. In May 1989 a torso found washed up on a beach in Staten Island was determined by x-ray comparison to be Katz. Proc. Dr. Sybil Baran, Katz's therapist, testified that Katz was afraid of Bierenbaum's anger. About Robert Bierenbaum . It is not offered for such a purpose and it must not be considered by you for such a purpose. By last December, the life he had built was over. 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. In the late 1800's, the railroad lured transients to the town's many brothels and saloons. 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. Detective Virgilio Dalsass from the 19th precinct, where Bierenbaum and Katz resided, and Detective Thomas O'Malley from the Missing Persons Bureau were assigned to investigate the case. It's still wrong and you didn't face it.'' 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. A. His arrest came nearly 15. Furthermore, the statements were made mostly to those close to her, in contexts completely devoid of coercion, not in response to anyone's questioning, nor under circumstances at all suggestive of any attempt to curry anyone's favor. '' The next day, the news hit that he was in New York and under arrest for murder. 2 reviews. Being essentially softhearted, though, he e-mailed Dr. Bierenbaum before the trial to wish him good luck and got a brief response: ''Thanks. dr robert bierenbaum medical schoolaiken county sc register of deeds dr robert bierenbaum medical school She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. at 583. Phone: (585) 754-7858,(585) 545-7200. Forensic tests of two automobiles that Bierenbaum was driving at the time also yielded no results. Given the seriousness of the charge, the circumstantial nature of the evidence, and no evidence of any improper motive on the part of the prosecution, the motion had no chance of success. Dr. Bierenbaum graduated from the Albany Medical College in 1978. Manhattan investigators were exhuming a woman's torso from a Queens cemetery and running DNA tests to determine whether it was that of his first wife, Gail Katz-Bierenbaum, who had disappeared in 1985. as the organization's new Chief Medical Officer.. He completed his Residency in Emergency Medicine from Genesys Regional Medical Center. O'Malley asked if Bierenbaum had ever hit his wife. Again, we disagree. Please enter a valid 5-digit Zip Code. First of all, it is not disputed by us that Gail Katz Bierenbaum is dead. Dr. Robert Bierenbaum had a second motive to murder his wife - she was threatening to expose him and his cardiologist father as Medicaid scammers, a witness told jurors yesterday. See Bierenbaum v. New York, 540 U.S. 821 (2003). O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University. Only later would he learn what had happened. 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. vol. The passage quoted above demonstrates that the Appellate Division found particularized guarantees of trustworthiness in the challenged statements. Although defense counsel mistakenly referred to the search of Bierenbaum's apartment as a forensic search, omitting the term forensic from counsel's opening statement would not have prevented the prosecution from eliciting Dalsass's testimony that a limited search of the apartment was conducted several weeks after Katz disappeared. 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. UC San Diego Health Physician Network is an alliance of health care providers based in San Diego, Riverside and Imperial counties. See Bierenbaum, 748 N.Y.S.2d at 589. Former NY surgeon admits killing wife, throwing body from airplane in 1985 (NCD) (NCD) NEW YORK Dr. Robert Bierenbaum maintained his innocence in 2000 as he was tried and convicted of killing . Caruana testified that Bierenbaum told her that his apartment and car had been searched and that he was clean as far as any police investigation was concerned. ''The guy was super nice,'' said Jason Naylor, a fellow pilot. Members of the network collaborate on . Robert Bierenbaum married his second wife, Dr. Janet Chollet, after moving to Las Vegas, Nevada, and the couple had a child together, according to The Charley Project. She also told DeCesare that she thought she was being followed. Currently incarcerated, Bierenbaum appeals from the February 26, 2008 judgment of the United States District Court for the Southern District of New York (Sweet, J.) He called Katz's mother to see if she had heard from Katz, and went to bed. With bitter winters and little company, residents here have little use for moral condemnation. Before leaving town, Dr. Bierenbaum stopped in at Pietsch's to pay a bill. CALABRESI, Circuit Judge, filed a concurring opinion. 2254. The prosecution called Katz's sister Alayne as a rebuttal witness. Throughout the search for Gail Katz-Bierenbaum, her family said they found her husband decidedly unhelpful. The district court's denial of petitioner's application for a writ of habeas corpus is affirmed. Three times Rowley loaded a bag containing one hundred ten pounds of sand and rice into the plane, flew out over the ocean, and ejected the bag, each time performing a different maneuver to get the bag out of the plane. Dr. Bierenbaum is board-certified in internal medicine, hematology, and oncology. Bierenbaum told Feis that they had had an argument, that she had gone to Central Park and not returned, and that she was still missing when he returned from a family party in New Jersey. Proactive and Reactive LiesDuring the trial, defense lawyer David Lewis denounced theprosecutions murder theory as guesswork since there are noeyewitnesses or physical evidence in the death of Katz-Bierenbaum.Lewis said Katz-Bierenbaum is probably dead, but he stated thatnobody knows how or why. Bierenbaum lists nine errors that he contends are objectively unreasonable: (1) failing to move to dismiss the indictment due to pre-trial delay; (2) conceding that Katz died on July 7, 1985; (3) opening the door to testimony and argument that Dr. Bierenbaum and his lawyer refused to consent to a forensic search of his apartment; (4) failing to call two witnesses who allegedly would have supported his claim that Katz left the apartment on the morning of July 7; (5) failing to cross-examine effectively a witness who minimized his use of cocaine with Katz; (6) failing to object to the admission of the videotaped demonstration of the prosecution's theory of how Bierenbaum disposed of his wife's body; (7) failing to move for a trial order of dismissal on the grounds of insufficient evidence of the element of intent to kill; (8) failing to make a timely objection to improper remarks in summation; (9) failing to request a jury charge on jurisdiction. 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. In determining whether prosecution has been unduly delayed, a New York court will balance five factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.. A state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence. Failure to move for dismissal on the ground of insufficient evidence of specific intent to kill. There was evidence that Bierenbaum regularly carried heavy duffel bags. Bierenbaum told Katz's friend Ellen Schwartz that he had spoken with Katz's therapist Dr. Baran, who had told him that Katz was very depressed and she was concerned that Katz might hurt herself. At the close of the prosecution's case, defense counsel move[d] for a trial order of dismissal of the single count of the indictment because the People failed to establish every element of the crime charged[,] and this case particularly in its circumstantial nature is insufficient to go forward for a jury resolution. Trial Tr. In July, early in the investigation, Dalsass asked Bierenbaum if he could look around the apartment. And when detectives grilled him about what he did on July 7, 1985, the day his wife disappeared, he never mentioned his two-hour solo flight in a Cessna over the Atlantic Ocean. 1200 S Columbia Rd, Grand Forks, ND, 58201. Thus, Bierenbaum's challenge to the admission of Katz's statements must be evaluated under Roberts. See Feliz, 467 F.3d at 232. Michelle Kaszuba on the investigation of Gail Katz-Bierenbaum's disappearance, and her husband's murder trial. ''Going to other states and acting like you're innocent? June Sherman lived directly below the Bierenbaum apartment. 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. 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. NEW YORK Dr. Robert Bierenbaum maintained his innocence in 2000 as he was tried and convicted of killing his first wife 15 years before. Investigators with the Manhattan district attorney's office arrested him in Minot, and gave him 48 hours to return to New York and surrender. ''He refused to talk to us,'' Mr. Maixner said. 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). But Dr. Bierenbaum had a strong record, excellent training and appeared to have an unblemished past, Mr. Schwann recalled, until New York City investigators, accompanied by Mr. Maixner, arrived in November 1998 to look into some issues. (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. Doctor of Osteopathic (DO) Medical School / Professional School: Bierenbaum claims that he was denied his Sixth Amendment right to effective assistance of counsel at trial, and that the admission at trial of numerous out-of-court statements made by the victim violated the Confrontation Clause of the Sixth Amendment. ''How odd is it that a murderer had dinner at my house, a Seder no less,'' said Harriet Epstein, originally from Queens, who briefly ran the only bagel store here and whose late husband, a wealthy and prominent doctor, befriended and worked with Dr. Bierenbaum. gofrom the doctor to the pharmacist,primary care physician to a specialist, or a radiology center to the emergency room. Moreover, it was a reasonable trial strategy to establish a forthright relationship with the jury, by conceding what the defense did not have evidence to contest. WebMD does not provide medical advice, diagnosis or treatment. art. It was consistent with that theory to concede her death on July 7. 2254(b)(1)(A). Although he followed in the footsteps of his father Dr. Marvin Bierenbaum by becoming a surgeon, he never gave up his dream of becoming the first Jewish astronaut. Bibb said one lie was that after Katz-Bierenbaum disappeared, aprivate investigator told the cosmetic surgeon that his wife was awaitress at a seaside resort in California. The prosecution successfully argued that counsel had opened the door to allow testimony from Detective Dalsass that Bierenbaum's attorney had prevented the police from conducting a warrantless forensic search of the apartment. Edgar Rivera told the police that he did not remember seeing Katz on July 7. The petition was denied on March 9, 2006. The decision not to call Alvarez was within the range of acceptable strategic and tactical alternatives. Luciano, 158 F.3d at 660. '', See the article in its original context from. The same compassionate staff continues to provide personalized service in the same warm, caring atmosphere you have come to expect. But he chokes her much harder than he'd done when she was only having a cigarette. Find Dr. Biernbaum's address and more. Dr. Ellen Schwartz, a close friend from graduate school, testified that Katz told her she was afraid of her husband, and that she was planning to leave him soon. Trial counsel conceded in his opening statement that Katz died on July 7, 1985: [L]et's talk about some things that are not at issue here. Bierenbaum faults his trial counsel for failing to object when the prosecution argued in summation that Bierenbaum allowed an argument to get explosive and choked Katz as he had done before, only this time to her death.4 He argues that the statements invited the jury to consider the 1983 choking incident as evidence of propensity, and that there was no evidence that Katz died by strangulation or that Bierenbaum stood over her as she died.
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