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Aisenberg Recordings 'Largely Inaudible'

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Paula Christian / The Tampa Tribune

Published: November 14, 2000

TAMPA — The judge's order may be the most significant yet in the Sabrina case and the charges against her parents.

In an order that may signal the end of the government's controversial prosecution of Steve and Marlene Aisenberg, a federal judge said Monday that the tape recordings at the heart of the case are "largely inaudible."

U.S. District Judge Steven Merryday said he listened several times to the recordings, which captured conversations between the Aisenbergs in the weeks after the disappearance of their 5-month-old daughter Sabrina. He said they were filled mostly with random noise, interference and distortions "which together materially obscure large portions of most or all of these recordings."

Merryday postponed a hearing on whether the recordings are clear enough to be heard by a jury and ordered the government to produce more evidence. Without it, Merryday hinted that he may throw out the recordings.

And he also cast doubt on the original indictment against the Aisenbergs, which laid out the government's evidence in unusual detail. Merryday suggested that at least some of that evidence doesn't exist.

Sabrina vanished from the family's home in Valrico on Nov. 24, 1997, and has never been found. Her parents reported her kidnapped, but investigators believe that she is dead and that her parents had something to do with it.

Armed with a court order, detectives secretly bugged the Aisenbergs' kitchen and bedroom in the weeks after Sabrina vanished. Prosecutors say they made incriminating statements in a number of conversations that detectives recorded.

Largely on the strength of those recordings, a federal grand jury indicted the Aisenbergs last year on charges of conspiracy and lying to investigators. But their attorneys have long said the recordings are inaudible. The Aisenbergs have pleaded not guilty.

Merryday gave prosecutors until Nov. 22 to convince him with more evidence that the tapes should be admitted at trial as evidence.

His order represents another in a lengthening series of blows to the government's case. For example, prosecutors are already under orders to answer defense allegations that detectives lied or at least played fast and loose with the truth to get court authorization for the bugs. A hearing on that issue is set for Dec. 11.

The U.S. Attorney's office had no comment on the substance of Merryday's ruling. Spokesman Steve Cole said only: "We are aware of the judge's order and we intend to respond to it."

Nor was there any comment from defense attorneys.

But former prosecutors characterized Merryday's order as a milestone in the case.

"When a trial judge is seriously questioning the fundamental basis of your case, it is probably very troubling to the prosecution and very dismaying to them," said John Fitzgibbons, a former federal prosecutor now in private practice in Tampa. "This is probably the most significant order I have seen to date in this case."

"I think Judge Merryday is letting the government know he has some significant problems with those tapes and he just may be inclined to rule that they are inadmissible," said Stephen Crawford, another former federal prosecutor also in private practice. "The judge is giving prosecutors a little time to rally the troops and get their supervisors together and see what they want to do with this case."

There was no comment from the Aisenbergs, who now live in Maryland.

But Irwin Aisenberg, Steven's father, said he felt some measure of vindication. "I think this is one great step in the right direction," the elder Aisenberg said. "I think the government is completely taken by surprise that anyone would challenge what they said is on those tapes."

Merryday's order raises serious trial issues for the prosecution. Not only does it challenge the government's case; complying with Merryday's order may require prosecutors to lay out much of whatever additional evidence they have before trial.

Fitzgibbons said Merryday's order also suggests that the indictment against the Aisenbergs may have been obtained improperly, something the defense has been alleging for months and which could result in the entire case being thrown out.

The indictment details statements that prosecutors said could be heard on the tapes.

"The baby's dead and buried. It was found dead because you did it! The baby's dead no matter what you say — you just did it!" Marlene Aisenberg told her husband, according to the indictment. Merryday, however, said "at least some" of the statements the government claims are on the tapes are, in fact, inaudible, though he didn't specify which ones.

If the judge couldn't hear those statements after listening to the tapes repeatedly, it raises questions about how the grand jury was able to hear them, Fitzgibbons said.

In September, Merryday took the rare step of ordering prosecutors to produce transcripts of the grand jury proceedings in the Aisenberg case. Normally those records are secret. Legal experts said at the time that might mean Merryday has serious questions about what took place in the grand jury room.

As the government's case against the Aisenbergs has come under growing fire, detectives have renewed their efforts to learn what happened to Sabrina.

As recently as last month they drilled into the foundation of a home in Pasco County that was sold by Steve Aisenberg, a real estate agent. The foundation was poured at about the time Sabrina disappeared, records showed.

Hillsborough County sheriff's Col. David Gee said Monday there is nothing new to report about the search results.

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