N E W Y O R K, Sept. 11, 2000 -- When Gail Katz-Bierenbaum disappeared in 1985, her relatives and New York prosecutors almost immediately suspected her husband of murder.
Citing her tumultuous, and sometimes violent, marriage, Katz-Bierenbaum’s family said her husband, then aspiring plastic surgeon Robert Bierenbaum, killed her. Gail, relatives told police, complained that Robert was obsessed with control and she lived in fear of him. Robert, they claimed, did not let Gail have her own identity.
Despite the suspicions, prosecutors felt they could not charge Robert Bierenbaum: Gail’s body was never recovered.
It’s a sort of case that prosecutors often dread. Without a body or other physical evidence of a slaying, district attorneys often feel they will not win a conviction. But they do pursue such cases, and have won convictions in a number of recent high-profile missing-body murder prosecutions: Cases such as Delaware vs. Thomas Capano, the influential lawyer convicted of killing Gov. Thomas Carper’s scheduling secretary and dumping her body and sea, at New York vs. Sante and Kenneth Kimes, the mother and son grifters convicted of killing an elderly socialite in an attempt to steal her multimillion-dollar Manhattan townhouse.
The Bierenbaum case is set to become another of the rare, but growing, prosecutions where investigators never found the alleged victim. Last December, 14 years after Katz-Bierenbaum vanished, her husband was arrested and charged. Prosecutors said they found new “compelling” evidence and uncovered inconsistent statements the doctor allegedly made to friends and acquaintances about his wife’s disappearance.
When Bierenbaum goes on trial this fall, the proceedings likely will provide a snapshot of why some legal experts say missing-body cases are the toughest to prove, and show the sorts of hurdles the prosecution must overcome that would not exist when a body has been recovered.
“The law says you must pass the corpus delecti rule, which refers to a body of crime,” says Michigan prosecutor Stuart Fenton. “Normally, you have a body and a coroner who will tell you the cause of death. With a missing body, you don’t have that. You have to prove by circumstantial evidence that: there was a death and the death occurred by criminal means. A lot of prosecutors are afraid of taking on these cases because of these obstacles.”
Constructing & Deconstructing a MurderTo prove there was a death in missing-body cases, prosecutors must prove there has been no sign of the person’s existence. That means presenting close friends and family members who would say they haven’t heard from the alleged victim in a long time and that the missing person would not have just gone away without informing them. Prosecutors and investigators also comb through records in 50 states to show there has been no activity in the accounts belonging to the victim, such as Social Security funds, bank accounts and credit card activity.
“You have to develop an understanding of the victim’s life, the details of their life,” says California prosecutor Richard Holmes, who successfully convicted Alejandro Gilbert Ruiz in the disappearance and murder of his wife in 1980. “Who would they contact? Do they have any medical problems that would require constant attention? What are their habits? You have to do everything you can to bring the victim to life in front of the jury. Very few people drop off the face of the earth. You have to prove that the victim is unlikely to do so, disregard everyone they’ve known in the past, especially if they have nothing to hide from.”
Prosecutors also must illustrate the circumstances under which a murder could have occurred: evidence of a troubled relationship; the discovery of the victim’s blood in their house or the suspect’s house. A confession from the suspect to either police or other people is always welcomed by prosecutors. But that alone is not enough to win a missing-body homicide case. The law mandates that prosecutors should have enough evidence to prove their case without a confession because suspects often retract their statements.
A First in Minnesota
That happened in the trial of Donald Blom, whose case became Minnesota’s first successfully prosecuted missing-body murder case last month. Blom, a five-time convicted sex offender, was convicted of murder and kidnapping in the 1999 abduction of a convenience store worker and sentenced to life in prison. Prosecutors said Blom abducted 19-year-old Katie Poirier as she was working alone late at night on May 26, 1999, and strangled her. Then, according to prosecutors, Blom burned her body in a fire pit on his property.
Poirier’s body was never recovered. The prosecution only had the following evidence: bone fragments recovered from the fire pit that an anthropologist identified as belonging to a woman between the ages of 19 and 26; a charred tooth a forensic dentist tied to Poirier; a grainy video that showed Poirer being taken away from the store but did not decisively identify Blom; various witnesses who said Blom was near the store hours before Poirier’s disappearance; and a confession from Blom that he later retracted. Blom claimed he only told police what he thought they wanted to hear because he was under extreme stress and tired of being imprisoned.
Despite Blom’s recanted confession and defense claims that the prosecution had not proven that the charred body parts belonged to the victim, jurors sided with the state. Prosecutor Thomas Pertler says he had some reservations when he agreed to take on the case.
“When we saw what we had, and we saw that he had been previously arrested for kidnapping, we weren’t swayed away from the case,” says Pertler. “However, we knew and kept in mind the risks that were involved.”
Without the presence of a body, Pertler says, questions that normally would be uncontested, such as the occurrence and place of the death and the identity of the victim’s remains, become fuel for the defense. In missing-body cases, almost every piece of evidence presented by the prosecution can become the defense target for reasonable doubt.
“Most definitely they are the toughest cases you can face,” says Pertler. “With any murder case, there are certain elements that are no-brainers, like the death of so-and-so occurred in such-and-such a county and they died in this way. But without a body, you have the other side saying, ‘There’s no way you’ve identified these remains as belonging to the victim.’ You’ve got to hope that your case withstands the defense’s request for a directed verdict of acquittal from the judge [because of lack of strong evidence] and that your case passes with the jurors, who take their job seriously.”
Not Necessarily a Formula for SuccessSometimes apparently strong circumstantial evidence is not enough to convince jurors — something Pertler was aware of in the Blom trial from another case from his state seven years earlier.
In 1993, Minnesota prosecutor Jim Backstrom failed to convince jurors that Robert Guevara kidnapped, raped and killed 5-year-old Corrine Erstad. Corrine disappeared on June 1, 1992, and Guevara, a family friend, had been at her home the night she vanished.
During their investigation, witnesses said Corrine’s parents often let Guevara sleep at their house when he got drunk and that sometimes he would climb in the same bed as Corrine. Detectives found a white sundress in Guevara’s storage locker that matched the clothes Corrine was last seen wearing. Investigators also found a pair of underpants; both the dress and the underwear were wet and had bloodstains on them. Prosecutors also found a bloodstained shower curtain in Guevara’s home. DNA tests later indicated that semen and blood found on the dress, underpants and shower curtain could belong to Guevara and Corrine.
Despite the blood and DNA evidence, jurors acquitted Guevara at his 1993 trial. Backstrom says he had limited use of the DNA evidence — he was not allowed to use statistical analysis that would have explained the likelihood that the blood and semen belonged to Corrine and Guevara. (Minnesota law has since been changed to allow full use of DNA evidence at trial.) To plant further seeds of reasonable doubt in jurors’ minds, the defense suggested that some of the evidence may have been planted and played a tape of a phone call to detectives in which a girl claimed to be Corrine.
Eight years after her disappearance, Corrine remains missing, and the jury’s verdict haunts Backstrom.
“Trying cases such as this can be very difficult,” Backstrom says. “Without a body you lose the opportunity to gather important evidence such as the cause of death and possible forensic evidence tying the crime to the suspect, such as DNA evidence, hair samples, fingerprints, etc. We had significant DNA evidence linking the defendant’s semen with Corrine’s blood on a shower curtain, but for whatever reason, the jury concluded we had not proven his guilt beyond a reasonable doubt.”
Circumstantial StrengthThough they lack more direct physical evidence, missing-body cases, some lawyers say, ultimately can be stronger than standard murder cases with bodies and are more likely to withstand appeals. Because the body is missing, prosecutors must worry more about their case being thrown out before or during trial because of a lack of sufficient evidence. These obstacles, along with the fact that they have to prove there was a death by murder make prosecutors present a more efficient case.
“Circumstantial cases can often be stronger than direct evidence cases whereas the evidence you present is less susceptible to tampering,” says Joshua Marquis, who successfully prosecuted a missing-body case in Oregon in 1993. “You don’t have all the baggage that may come if police are not as careful as they should be at the scene of a crime. And I don’t worry about these cases being overturned on an appeal. Most judges won’t let you get past [the defense’s request for] a directed verdict of acquittal at trial if you don’t present a strong case. You combine that along with the fact that you convinced a jury to convict, it’s unlikely an appeals court will overturn the verdict.”
However, attorneys are mindful that jurors often favor direct evidence over circumstantial evidence.
“Jurors have a prejudice against circumstantial cases,” says attorney Richard Holmes. “They like to have a coroner tell them the cause of death. They like to be shown a motive, a reason behind the murder. But with some elements of a circumstantial case, you can’t change it. You can’t lie about it. You can’t misidentify fingerprints; you can’t lie about DNA.”
Enough Evidence to Convict?
Both sides in the Katz-Bierenbaum case have refused to comment on the upcoming trial. Robert Bierenbaum has denied any involvement in his wife’s disappearance. According to police reports and court documents, he has maintained that he and Katz-Bierenbaum had an argument the day she disappeared and that she left the apartment to clear her head. Bierenbaum told police he then went to New Jersey to spend time with his relatives and returned home to find his wife still hadn’t come home.
In court documents, Bierenbaum’s defense claims Katz-Bierenbaum was suicidal in the year before her disappearance and suggests she may have killed herself. The defense also has said in the documents that Katz-Bierenbaum was still in contact with some of her ex-boyfriends and suggests one of them may have killed her.
Manhattan prosecutors are likely to depend on the testimony of friends and relatives who have neither seen nor heard from the victim since 1985. Some of these witnesses may tell jurors that the couple had a volatile relationship. According to court documents, there was an incident before their marriage where Robert attempted to drown Gail’s cat because he thought she loved it more than him. On one occasion in 1983, Gail reported Robert to the police for choking her into unconsciousness in their Manhattan apartment after catching her smoking. However, she did not file charges.
In addition, friends also have noted that Gail had affairs with ex-boyfriends while married to Robert and this stirred him into jealous rages. A psychiatrist who counseled Gail also claims he warned her that her life would be in danger if she stayed in the relationship with Robert. He even asked her to sign a letter absolving him of responsibility if anything happened to her, but she refused. Mindful of doctor-patient confidentiality laws, the presiding judge has not decided whether the psychiatrist will be allowed to testify at trial.
Prosecutors also have uncovered records that show Robert Bierenbaum rented a plane in New Jersey for more than two hours on the day his wife disappeared. That, the prosecution believes, indicates that he killed Katz-Bierenbaum in their Manhattan apartment and used the plane to dump her body into the Atlantic.
Despite the absence of a body, New York prosecutors believe this evidence provides a “compelling” case against Bierenbaum. Whether or not it is compelling enough to pass the circumstantial corpus delecti test and convince a jury of the doctor’s guilt remains to be seen.