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Aisenbergs' Law Firm Awarded $2.9 Million

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By ELAINE SILVESTRINI | The Tampa Tribune

Published: February 1, 2003

TAMPA — In a ruling both searing and unprecedented, a federal judge on Friday ordered the government to pay nearly $2.9 million to the law firm defending Steven and Marlene Aisenberg against charges they lied to investigators in the disappearance of their baby, Sabrina, in 1997.

The award ordered by Federal District Judge Steven D. Merryday may be the largest ever under the Hyde Amendment, a little-used 1997 law that permits criminal defendants to seek restitution for legal fees in cases of egregious prosecution conduct.

In another highly unusual move, Merryday also ordered the release of normally secret grand jury transcripts in the case, saying the public has a right to know the facts behind a prosecution that went so wrong.

The Aisenbergs are expected to file a civil suit seeking damages from the government in addition to the legal fees that were the subject of the ruling Friday.

Invoking language from the Hyde Amendment, Merryday wrote in his 93-page opinion that the Aisenbergs were subjected to prosecution that was "vexatious, frivolous or in bad faith" and that prosecutors failed to "preserve the public trust."

Neither the U.S. attorney's office nor Aisenberg's defense attorney, Barry Cohen, would comment on Merryday's ruling. Both sides said they needed time to study the expansive decision.

The Aisenbergs — Marlene, 40, and Steven, 39 — were unavailable for comment. They live in Maryland and did not respond to requests for interviews.

Cohen is expected to issue a statement Monday.

Judge Breaks Down Prosecution

Five-month-old Sabrina Aisenberg disappeared from her parents' Valrico home Nov. 24, 1997, coincidentally, two days before Congress passed the Hyde Amendment.

Eighteen days after the child's disappearance, Hillsborough County sheriff's detectives persuaded a county judge to authorize wiretaps in the Aisenbergs' home. The bugs remained turned on in the house from Dec. 13, 1997, through March 2, 1998, capturing 2,600 conversations.

On Sept. 9, 1999, a federal grand jury indicted the Aisenbergs on charges they lied to law enforcement about their daughter's disappearance and conspired to deceive authorities.

The indictment, which relied heavily on allegedly incriminating statements made by the Aisenbergs on the wiretaps, eventually was dismissed after a federal magistrate concluded the wiretaps did not contain the incriminating statements investigators and prosecutors had claimed.

At several points in his ruling, Merryday strongly suggested the government never believed its own case against the Aisenbergs and yet elected to prosecute them, apparently in the hope of forcing Marlene Aisenberg to testify against her husband.

"The only rational conclusion available is that [prosecutors] did not know what happened to Sabrina, but acquired a belief" that may have been based on statistics about child abductions, "that one or both of the Aisenbergs knew what happened and are criminally responsible," Merryday wrote. "However, mere belief (if any) is not enough."

If the government really believed its case, Merryday wondered, why then didn't anyone bring charges of kidnapping or murder?

Merryday chronicled actions by the government that he suggested belie an ethical prosecution, including prosecutors' "strange" opposition to defense motions to publicly air the wiretap tapes.

Echoing a ruling in 2001 by Magistrate Mark A. Pizzo, who barred the government from using the wiretap recordings as evidence against the Aisenbergs, Merryday wrote, "My review causes me to doubt that anyone believes the recordings implicate the Aisenbergs decisively."

The judge derided everything from the detailed language of the indictment to the "unusual public flourish with which the indictment was announced and pursued."

Merryday further slammed the government for using a "dubious" expert to analyze the tape recordings instead of the FBI's criminal laboratory "or some other reputable authority."

Moreover, the judge said the government's failed attempt to force the Aisenbergs to retain separate attorneys was "richly suspect," lending credence to the "obvious conclusion" that the government prosecuted the couple "based not on a careful evaluation of the weight of the evidence but in an effort to "flip' one of these defendants (probably Marlene) and secure testimony against the other (probably Steven, if you assume someone believed what the indictment alleges)."

Hyde Amendment Applied

For the first time since the Hyde Amendment was enacted, the U.S. attorney's office conceded in this case that the law applied. In other words, prosecutors admitted their conduct had been "vexatious, frivolous or in bad faith."

But the government argued that the defense legal team should be reimbursed only the amount the Aisenbergs had paid, $250,000.

Prosecutors said the law firm had claimed excessive legal fees. The government further contested any requirement that the government reimburse the law firm for costs it incurred arguing the Hyde Amendment claim.

The defense sought payment for 11,251.70 hours of attorney and investigator time billed between November 1997 and October by the Tampa law firm Cohen Jason and Foster.

The defense sought reimbursement for more than $2 million in legal fees and other costs, arguing the amount should be tripled to nearly $7 million because of the special circumstances of the case.

With some relatively minor exceptions, Merryday concluded that the defense assessment of its costs was reasonable. He declined, however, to triple the award, electing instead to give an additional 15 percent more than what he said were the legitimate costs of $2.3 million in legal fees, adding nearly $350,000 to the award. Merryday also ruled the defense is entitled to be reimbursed nearly $196,000 for other expenses.

Although the prosecution argued that the defense team should not be reimbursed for expenses for dealing with the media, Merryday said such expenses were an important part of the defense strategy, which hinged partly on learning the location of Sabrina, a development that could vindicate the defendants.

Public Disclosure Of Facts

Merryday wrote that the "public aspects" of the case justified vigorous efforts to defend the Aisenbergs in the court of public opinion.

In ruling that the grand jury transcripts should be made public, Merryday observed that the Aisenbergs' defense consistently has pursued public disclosure of facts and evidence in the case.

"The Aisenbergs have believed (so far, correctly) that their best interest benefited directly as public disclosure increased," the judge wrote.

Although keeping the grand jury transcripts secret may protect prosecutors, Merryday wrote, "The public has a strong interest in the events leading to a vexatious, frivolous, or bad faith indictment and prosecution for which the prevailing defendant is compensated from public funds."

Merryday ordered that the U.S. attorney's office turn over to the court all transcripts by Friday. The judge ordered that they be unsealed Feb. 10.

"The insulation of misdirected or overzealous prosecutorial exertions from public scrutiny forms no part of the justification for grand jury secrecy," Merryday wrote. "The public is entitled to know."

Black Eye For Prosecutors

One local defense lawyer said Merryday's conclusions can only help the Aisenbergs' prospects in a lawsuit against the government.

"This is going to be exhibit No. 1 in their civil suit," said defense lawyer and former federal prosecutor John Fitzgibbons.

"This thing will be the leading opinion in America with regard to the Hyde Amendment. It's a treatise. I don't think the government would have a prayer on appeal given the findings and carefully considered legal opinions of the court."

Although the ruling is a black eye for the U.S. attorney's office, Fitzgibbons said he didn't think it would affect other prosecutions.

"I think this is an aberration. By and large, the prosecutors are ethical and honest, and the vast majority would never do anything like this."

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