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Aisenbergs' Prosecutors Immune, Judge Rules

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By ELAINE SILVESTRINI | The Tampa Tribune

Published: July 21, 2004

TAMPA — Saying the law protects federal prosecutors from lawsuits over their official actions, a federal judge has dismissed part of a wrongful prosecution lawsuit filed by Marlene and Steven Aisenberg.

The lawsuit, filed by the couple in Hillsborough County Court in September, charged everything from evidence fabrication to slander in the prosecution of the couple on charges they lied to investigators in the Nov. 26, 1997, disappearance of their baby daughter, Sabrina. The lawsuit was later transferred to federal court.

U.S. District Judge Steven D. Merryday ruled in a separate proceeding in January 2003 that the prosecution against the couple had been "vexatious, frivolous or in bad faith" and that prosecutors failed to "preserve the public trust." At the time, Merryday awarded the Aisenbergs' attorneys $2.9 million in legal fees.

That award was later reduced by an appeals court to $1.5 million in a ruling that the Aisenbergs have asked the U.S. Supreme Court to overturn.

"Absolute Immunity'

The civil suit against federal and county officials sought further damages on behalf of the couple. In a ruling issued Friday, Merryday decided in favor of lawsuit defendants, assistant U.S. attorneys Stephen Kunz and Rachelle Desvaux Bedke, as well as their forensic audio examiner, Anthony Pellicano. Dismissing those defendants from the complaint, Merryday said in his 35-page ruling that the federal prosecutors' official actions are protected by "absolute immunity, even if tainted by ill-will or ineptitude."

The judge rejected the Aisenbergs' arguments that the actions in question constituted investigative, rather than prosecutorial, duties, and were therefore not protected by immunity.

Merryday ordered that the suit be transferred back to county court for the remaining defendants: the Hillsborough County Sheriff's Office; Sheriff Cal Henderson; sheriff's detectives Linda Burton, William Blake and Carlos Somellan; sheriff's Maj. Gary Terry; Sgt. Robert Bullara; Lt. Greg Brown; Cpl. Don Roman; Deputy Jussara Olmeda; Deputy Phillipe Dubord; Deputy Chad Chronister; Deputy Miguel Diaz; Deputy Fernando Enriquez; Deputy Alfred Ford; Deputy Lester Orgeron; Deputy Michael Bryant; and Deputy Billy Williams.

The lawsuit accuses government officials of conspiring to deprive the Aisenbergs of their civil rights, employing tactics such as lying to judges about evidence.

The complaint accused prosecutors and detectives of being so single-minded in their pursuit of the Aisenbergs that they lied, fabricated evidence and failed to properly investigate the child's disappearance.

Accountability

"I'm not going to let this be the end of it," said Barry Cohen, the Aisenbergs' attorney. "The system cannot tolerate prosecutors who admit filing a federal criminal charge in bad faith and not be held accountable."

First Assistant U.S. Attorney James R. Klindt said he is "pleased with the outcome" of the civil case.

The two prosecutors involved were investigated by the Office of Professional Responsibility, according to Klindt, who said he could not comment on Kunz because he no longer works for the same office. Koons now is an assistant U.S. attorney in the Northern District of Florida.

Bedke continues to work in Tampa as an assistant U.S. attorney, Klindt said, and is handling complex white-collar fraud cases. The Office of Professional Responsibility found that she "did not commit misconduct or exercise poor judgment whatsoever in her handling of matters related to Aisenberg," Klindt said.

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