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Aisenberg Transcripts To Stay Sealed

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By ELAINE SILVESTRINI | The Tampa Tribune

Published: February 7, 2004

TAMPA — A federal appeals court handed federal prosecutors a rare victory Friday, overturning a district judge's order unsealing grand jury transcripts in the prosecution of Steven and Marlene Aisenberg in the 1997 disappearance of their baby daughter, Sabrina.

Saying U.S. District Judge Steven D. Merryday abused his discretion, the 11th Circuit Court of Appeals also reduced from $2.9 million to $1.5 million the award given to the Aisenbergs' attorneys for legal fees.

The appeals court did not dispute Merryday's conclusion that the failed prosecution of the Aisenbergs on charges of lying to investigators was "vexatious or in bad faith." The court did, however, reject Merryday's conclusion that secret grand jury transcripts should be unsealed so the public could learn the facts behind a prosecution gone awry.

Instead, the appeals court held that "troublesome events in this case," such as fabrication of evidence, have already been exposed.

"Given that the government's conduct already has been revealed and publicly aired, the district court erred in concluding that the grand jury transcripts must be disclosed so that the public can know about this misdirected prosecution," the court wrote in an opinion released Friday afternoon. "The public already knows."

Steve Cole, spokesman for the U.S. attorney's office, said prosecutors would have no comment.

Barry Cohen, attorney for the Aisenbergs, said Friday afternoon that he had not read the ruling but would consider an appeal.

The ruling "totally interferes with the public's right to know," he said, "and there was no good legal basis to maintain the secrecy of the grand jury in this case."

Cohen said the reduction in fees was not going to matter to his firm, which can afford the financial hit. But he said it will discourage other lawyers from taking on expensive battles to expose government misconduct on behalf of clients who can't afford to pay large fees.

"We will live with the consequences of this case," Cohen said. "I just think it's unfortunate because the effect of it is not going to be in the public interest."

The Aisenbergs have filed a civil lawsuit seeking damages from state, county and federal prosecutors and investigators. Merryday is considering whether to dismiss the portion of the lawsuit naming federal prosecutors.

The legal fee award was made under a rarely used 1997 law, known as the Hyde Amendment, which permits criminal defendants to seek restitution for legal fees in cases of egregious prosecution misconduct.

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