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Sabrina Case Collapses

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Paula Christian / The Tampa Tribune

Published: February 22, 2001

Criminal charges may be dismissed, but the Aisenbergs' lawyer promises this is not the end of the case.

State Attorney Mark Ober wants a special prosecutor to investigate "serious allegations of misconduct."

The news came in a phone call from their lawyer Wednesday afternoon.

"How are you?" defense attorney Barry Cohen asked Steve Aisenberg.

"Fine," Aisenberg replied.

"The government has dismissed the case against you and Marlene," Cohen said.

There was silence at the other end of the line.

"How do you feel?" Cohen asked.

"Well, I'm happy," Aisenberg answered, though his voice lacked surprise, Cohen recounted later. "But I'm not going to be completely happy until our baby's back."

Steve and his wife, Marlene, passed the phone back and forth for several minutes, asking questions, getting more details. They seemed "a little numb," Cohen said.

But within hours they had recovered enough to talk to reporters outside their home in Bethesda, Md., where they now live. Their message was simple: Find their missing daughter.

More than three years after the Aisenbergs reported 5-month-old Sabrina missing from her crib, her parents are finally free of the glare of law enforcement investigation.

In a stunning move, the U.S. attorney's office quietly filed court papers seeking permission to drop the seven-count indictment against the couple just after 1 p.m. Wednesday.

Prosecutors did not explain the decision, in sharp contrast to the day they announced the indictment against the Aisenbergs accusing them of conspiracy and lying to investigators.

That news was delivered at a press conference held Sept. 9, 1999, by then-U.S. Attorney Charles Wilson and Hillsborough Sheriff Cal Henderson, complete with charts and a copy of the indictment enlarged so it could be picked up by television cameras.

"I think their silence is deafening," Cohen angrily said Wednesday. "They should be apologizing."

And the two lead Hillsborough County sheriff's detectives in the case, Linda Burton and William Blake, should be in jail, Cohen said.

"This is not over, not by a long shot," Cohen said.

He also sharply criticized the lead prosecutors, Stephen Kunz and Rachelle DesVaux Bedke, accusing them of lying in court and trying to convict innocent people.

The government's move must still be approved by U.S. District Judge Steven Merryday. Merryday has been voicing growing skepticism about the government's case for months, and on Friday asked a federal magistrate, Mark Pizzo, to consider whether the case should be dismissed.

Two days before, Pizzo had recommended that the government's most damaging evidence against the Aisenbergs, audiotapes of more than 2,600 conversations they had in the months immediately following Sabrina's disappearance, be thrown out. Pizzo found that in seeking judicial permission to bug the Aisenbergs' bedroom and kitchen, Burton and Blake had told lies and half-truths.

Without the tapes, "there is no longer a reasonable probability of conviction against the defendants," prosecutors wrote in their dismissal request.

At almost the same time the government paperwork was being filed, Cohen sent a letter urging State Attorney Mark Ober to investigate the sheriff's office. Cohen said he also would ask U.S. Attorney General John Ashcroft to investigate the conduct of the federal prosecutors, Kunz and Bedke.

"This was a bad-faith prosecution from the beginning, a bad-faith investigation from the beginning," Cohen said. "When they couldn't find any evidence, they tried to make it up."

Steve Aisenberg was more circumspect.

"We need their help to bring home our daughter," Aisenberg said. "They're the ones getting the leads."

The case began on the morning of Nov. 24, 1997, when the Aisenbergs made a frantic 911 call to report Sabrina missing. Marlene Aisenberg said Sabrina had been kidnapped.

A massive search by local, state and federal officers followed. They scoured a 4-mile radius and searched ponds around the family's then-home in Valrico. They kept a 24-hour vigil for two weeks awaiting a ransom demand.

No one called. Sabrina has never been found. Investigators suspected the Aisenbergs from the beginning.

"If they were looking for an infant instead of a body, she would have been home a long time ago," Steve Aisenberg said.

The case has taken an enormous toll on the Aisenbergs, Cohen said. They couldn't find work and were turned away from job interviews with comments such as, "We don't want your kind of people here," Cohen added. They struggled even to pay for food, he said. Their two other children were teased at school.

"The enormity of what happened to these people from the beginning is not relieved with one phone call" reporting the prosecution's move to dismiss, said Todd Foster, another of the Aisenbergs' attorneys. "It takes a little time for these things to sink in."

Burton and Blake went to Hillsborough Chief Judge F. Dennis Alvarez for permission to bug the Aisenbergs' home within weeks of Sabrina's disappearance.

Alvarez agreed and extended the eavesdropping twice, allowing them to record the couple's conversations for almost three months.

In his ruling, Pizzo said detectives "deliberately misled" Alvarez. They left out information, distorted conversations and said they heard things no "reasonable" person could.

His scathing 63-page order all but forced the government to drop its case. He accused detectives of lying and said the audiotapes should be thrown out.

Experts were not surprised by the government's decision.

"I think they knew after Judge Pizzo's report that the government's case was dead in the water," said former federal prosecutor John Fitzgibbons. "This is something the government should have done a long time ago and spared themselves a lot of embarrassment."

U.S. Attorney Donna Bucella probably had to consult with the Department of Justice before she dropped the case, Fitzgibbons said, "primarily because of the huge potential financial liability that the United States is going to face under the Hyde Amendment."

Fitzgibbons was referring to a new law that allows defendants to recoup attorneys' fees in cases of malicious prosecution.

"The government's dismissal virtually concedes that the prosecution was vexatious, frivolous and in bad faith," Fitzgibbons said.

The Aisenbergs also could seek damages in state and federal court against the sheriff's office, the Justice Department and individual detectives and prosecutors for violating their civil rights, among other things.

Cohen refused to discuss whether the Aisenbergs will sue, saying only: "We will do whatever we have to do to hold accountable whoever needs to be held accountable."

Regardless of lawsuits, there will be additional investigations.

Ober, the Hillsborough state attorney, asked Gov. Jeb Bush late Wednesday for an outside investigation of how the Aisenberg case was handled.

"It is obvious that this matter should be investigated by an independent agency," Ober said.

And a task force is still in place to investigate Sabrina's disappearance, Henderson said.

"We'll continue to follow up on any leads," the sheriff said. "We are continuing to look for the baby."

That is what the Aisenbergs say they want.

"Just dropping the case isn't going to do anything," said Irwin Aisenberg, Steve Aisenberg's father. "Reuniting Sabrina with her family — that would be the ultimate thing."

But assuming Merryday agrees with the government's move to dismiss, the case against the Aisenbergs is closed.

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