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Published May 25, 2010, 06:23 PM

NY Appeals Court Upholds Former Grand Forks Surgeon's Conviction

A federal appeals court agreed Tuesday that a plastic surgeon, Dr. Robert Bierenbaum, got a fair trial when he was convicted of killing his wife a quarter century ago even though her body was never found.

By: Larry Neumeister, AP

NEW YORK (AP) — A federal appeals court agreed Tuesday that a plastic surgeon got a fair trial when he was convicted of killing his wife a quarter century ago even though her body was never found.

The written ruling by a three-judge panel of the 2nd U.S. Court of Appeals in Manhattan was consistent with previous rulings by judges who have reviewed the conviction of Dr. Robert Bierenbaum.

Bierenbaum was found guilty in a New York state court in 2000 of murdering Gail Katz-Bierenbaum. Prosecutors said they believed Bierenbaum strangled his 29-year-old wife in their Manhattan apartment and dumped her body out of a plane into the Atlantic Ocean.

Bierenbaum, a licensed pilot, moved to North Dakota after his wife's July 1985 disappearance. He is serving 20 years to life in prison.

The latest challenge in the case came after Bierenbaum blamed lousy lawyering for his conviction.

A lawyer for Bierenbaum did not immediately return a telephone call for comment.

Bierenbaum had argued that at least nine major errors were made by his trial lawyer, including failing to try to dismiss the indictment on the grounds too much time had passed and failing to call two witnesses who Bierenbaum said would have supported his claim that his wife left their apartment the day she disappeared.

He also objected to his trial lawyer's decision to concede that his wife died on the day she disappeared and to not challenge a videotaped demonstration of the prosecution's theory that Bierenbaum was able to dispose of his wife's body from a plane even as he flew it.

The appeals court noted that a state court had already concluded that a motion to dismiss the indictment because of undue pre-indictment delay would unquestionably have been denied.

"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," the appeals court said.

The appeals court said it was not unreasonable for the defense lawyer to concede that his wife died on the day she disappeared since she never showed up for several appointments the next day.

"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," it said.

In a concurring opinion written by Judge Guido Calabresi, he said he believed the majority's decision was correct on the law.

But he added, noting that the court did not examine the sufficiency of the evidence because the appeal pertained only to the competence of legal representation: "This case troubles me. ... the evidence of guilt is very thin."

Copyright 2010 The Associated Press.

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