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Aisenberg legal bills await a price tag

Prosecutors think the Aisenbergs should get about $1-million. The couple's lawyers want five times that.

By GRAHAM BRINK, Times Staff Writer

© St. Petersburg Times, published October 22, 2002


Prosecutors think the Aisenbergs should get about $1-million. The couple's lawyers want five times that.

TAMPA -- When the federal government agreed last year to pick up Steve and Marlene Aisenbergs' legal bill, the big question was just how much that would cost taxpayers.

On Monday, a federal judge began hearing arguments to decide the matter, which could be the last major step in the botched criminal investigation into the disappearance of the Aisenbergs' 5-month-old daughter, Sabrina.

Government prosecutors think the price tag should read about $1-million. The Aisenbergs' lawyers are arguing for about five times that amount. Whatever U.S. District Judge Steven Merryday decides, the taxpayers will be footing the bill due to a law that protects defendants against prosecutorial abuses.

Aisenberg attorney Todd Foster told the judge during his daylong presentation Monday that they deserved the larger amount since government prosecutors acted in bad faith in bringing the case against his clients. The prosecution wasn't just negligent or frivolous, he said. Investigators "twisted" the truth and deliberately left out information that pointed toward his clients' innocence.

"They ignored what was right," he 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 that the couple had abused Sabrina. They received permission to plant listening devices in the Aisenbergs' kitchen and bedroom. Nearly two years later, a grand jury indicted the Aisenbergs on charges of conspiracy and making false statements.

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 to get permission to bug the home. He said the tapes he listened to did not contain incriminating comments.

In March 2001, the Aisenbergs' attorneys 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. The law spawned from suspicions that increased resources devoted to federal law enforcement had led to some overzealous prosecutions.

In a surprise move, federal prosecutors conceded that the Hyde Amendment applied to the Aisenberg case, the first such concession since the law went into effect in 1997, the lawyers said. The detente, however, was short-lived. The two sides could not agree on the final price tag, despite mediation and prodding from the judge.

Foster argued Monday that if the investigators and prosecutors acted in bad faith, the Hyde Amendment allows the judge to award the higher fees, instead of a lower hourly rate of about $125/hour. The Aisenbergs' attorneys are collectively seeking about $250/hour, a fee amount they say they want doubled because of the egregiousness of the case.

As proof of bad faith, Foster told Judge Merryday that the investigators and prosecutors misled the judge who signed the warrant to bug the house. They also leaked information to the news media to sully the Aisenbergs' reputation in the court of public opinion, he said. And they misrepresented Sabrina's medical records, exaggerated a doctor's assesment of Sabrina's condition and sicced state child abuse investigators on them to ratchet up the pressure, he said.

"If Marlene had battered and bruised the baby, why would she be taking her to friends' homes and videotaping her," Foster said. "Logically, it doesn't make any sense."

Also, most of the tapes from the bugging were so flawed and unintelligible that any reasonable person would have discarded them as evidence, he said. As for the tapes that could be heard, Foster said the investigators and prosecutors deliberately took the statements out of context.

"It is just the same thing, judge," said Foster, who played several tapes in court. "It's just making this stuff up."

The hearing could conclude today. The judge is expected to release his ruling at a future date. Foster said he has about two more hours left in his presentation after which the government will be allowed to respond.

The government prosecutors are expected to argue that the hourly rates charged by the Aisenbergs' legal team were too high given the fee range laid out in the law. Also, among other things, they have indicated in court documents that they believe some of the hours charged by the defense team were spent on media relations and other activities that the government should not have to pay for.

-- Graham Brink can be reached at (813) 226-3365 or brink@sptimes.com .

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