Attorney Barry Cohen sent letters seeking cooperation from 22 people who worked on the case.
By GRAHAM BRINK, Times Staff Writer
© St. Petersburg Times, published August 19, 2002
TAMPA -- The major question still unresolved in the case of Steve and Marlene Aisenberg is how much the government should pay for botching its investigation.
There already is the fight over how much the government owes the Aisenbergs in legal fees. And in the next month or so, the couple's lawyer, Barry Cohen, is expected to file a multimillion-dollar civil suit for the couple's pain and suffering and damage to their reputation.
To bolster his case, Cohen has decided to seek help from an unusual source: the potential defendants.
Last week, he sent letters to 22 investigators, agents and lawyers who worked on the Aisenberg case, which involved the disappearance of their 5-month-old daughter, Sabrina. The case eventually crumbled under allegations of shoddy police work.
Cohen said he knew some of them would not want to share information out of a sense of loyalty.
"That is commendable, to a point," the letters read. "However, as I am sure you are aware, depositions will eventually be conducted in this case and detailed and probing questions will be asked. Like any deponent, you may be placed in the position of having to choose between providing truthful testimony, under oath, or committing (or suborning) perjury to protect the position of others."
Cohen said he hoped the people who received the letters would contact a private attorney who would represent their interests, not the interests of their employers. The letters don't say that anyone who cooperates won't be sued. But Cohen said such a scenario is not out of the question.
"I'm hoping this will give them the opportunity to do the right thing," Cohen said.
The Aisenberg saga began on Nov. 24, 1997, when the couple reported Sabrina missing from their Valrico home. She was never found. Hillsborough sheriff's investigators quickly came to suspect the couple and bugged their kitchen and bedroom. A grand jury indicted the Aisenbergs in 1999 on charges of conspiracy and making false statements.
The prosecutors said the tapes contained incriminating statements. But the charges against the Aisenbergs were dropped last year after a federal magistrate judge recommended that the tapes be suppressed.
In a scathing report, Judge Mark Pizzo said sheriff's detectives made up evidence in getting permission to bug the home. He said the tapes he listened to did not contain incriminating comments.
Cohen sent a letter to the two lead sheriff's detectives, most of their supervisors and all the current and former Sheriff's Office employees who monitored the couple's conversations.
Letters were not sent to a handful of people who oversaw the case, including Sheriff Cal Henderson, Maj. Gary Terry and the two lead federal prosecutors, Stephen Kunz and Rachelle DesVaux Bedke.
How many responses does Cohen expect to receive?
"Even one would be more than if we hadn't sent out the letters," he said.
Sheriff's spokesman Lt. Rod Reder said employees who received a letter could consult with the office's lawyer or retain their own attorneys. He declined to comment further.
Many of the people Cohen intends to sue enjoy limited immunity against lawsuits, which will make his job more difficult. Cohen will have to convince a jury that officials operated outside of their scope of employment or acted with intentional misconduct. It likely won't be enough to prove that they were simply negligent.
Filing a civil suit also would open the Aisenbergs to depositions and days of being grilled by defense attorneys about what happened to Sabrina. Cohen said his clients have been questioned repeatedly by lawyers and reporters.
Anyone who thinks the couple won't file a suit to avoid further questioning is wrong, Cohen said.
"I would hope that after everything that happened in this case they would know that I wouldn't say something that I wasn't going to carry out," Cohen said. "If not, go ahead and call my bluff."
The fight over what the government should pay toward the Aisenbergs' legal fees has been going on for more than a year.
In March 2001, Cohen filed a motion under the Hyde Amendment, a rarely used law that allows federal criminal defendants to collect attorneys' fees from the government if the case was frivolous, vexatious or brought in bad faith.
In a surprise move, federal prosecutors conceded that the Hyde Amendment applied to the case, the first such concession since the law was passed in 1997, the lawyers said.
Cohen said his team of lawyers were owed about $3.75-million. The federal prosecutors balked at the amount. The hourly rates charged by Aisenbergs' legal team were much too high, and some of the hours were spent on media relations and other activities that the government should not have to pay for, they argued.
From there, negotiations broke down. Court-ordered mediation went nowhere. They remained miles apart on a final dollar figure.
Cohen originally waived the more than 1,000 hours he had spent working on the case in a "good faith" gesture. Last month, frustrated with the slow resolution, he asked to be paid for his own hours, as well, a move that could cost the government an additional half-million dollars or more if the judge decides in favor of Cohen and the Aisenbergs.
In recent weeks, the two sides have argued about what information the judge should have access to in making up his mind.
Federal prosecutor Ernest "Tony" Peluso, who is handling the Hyde issues, told the judge that his office had several boxes of internal files from the criminal case. He said the Sheriff's Office had similar internal files.
But Peluso said the judge could rule based on what is already in the public record.
Todd Foster, Cohen's law partner, disagreed, arguing that the issue should be decided once all the evidence is examined. The case could set precedents for what evidence is available in future Hyde Amendment cases, Foster said.
"The government does not want to give away more evidence than it has to. That's understandable," Foster said. "But they got themselves into this mess. Now they have to deal with the consequences."
Foster said case law indicated that a finding of bad faith would allow the judge to award the higher rates. A hearing is scheduled for the matter next month.
"Yes, we want all the materials to help with our case," Foster said. "But if what's in those boxes is further evidence of bad faith prosecution, it is also in the public's interest to air it all out."
-- Graham Brink can be contacted at (813) 226-3365 or firstname.lastname@example.org.