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Judge weighs sum due to Aisenbergs

A federal judge is left to determine how much a couple should be repaid for defending themselves against charges after their daughter disappeared.

By GRAHAM BRINK, Times Staff Writer

© St. Petersburg Times, published October 26, 2002

A federal judge is left to determine how much a couple should be repaid for defending themselves against charges after their daughter disappeared.

TAMPA -- With a four-day hearing completed, U.S. District Judge Steven Merryday now has to decide how much the government should pay toward the legal bill of Steve and Marlene Aisenberg, who once were charged in the disappearance of their 5-month-old daughter, Sabrina.

Merryday has to reconcile the Aisenbergs' legal saga with a relatively new law that allows defendants of "frivolous, vexatious or bad faith" prosecutions to collect their legal fees from the government.

Among the questions Merryday will grapple with:

Should prosecutors have known that their case was a dog and dropped it earlier?

Can he increase an award to send prosecutors a message not to engage in such conduct again? And if so, should he?

Merryday's answers could mean the difference between the government forking over a low of $250,000 or a high of $7-million. Whatever the judge decides, he will be laying fresh tracks in fuzzy legal territory.

"There are a number of ways to look at this statute," Merryday told attorneys during the hearing this week.

The debate over legal fees stems from the disappearance of Sabrina Aisenberg on Nov. 24, 1997, from her Valrico home. She has not been found.

Hillsborough County sheriff's investigators quickly suspected Sabrina's parents and obtained permission to bug their home. Nearly two years later, a grand jury indicted the Aisenbergs on charges of conspiracy and making false statements.

Prosecutors said the tapes from the bugging contained incriminating statements by the Aisenbergs. But in a scathing report, U.S. Magistrate Judge Mark Pizzo later said sheriff's detectives made up evidence to get permission to bug the home. Moreover, Pizzo said the tapes he listened to did not contain incriminating comments.

Soon after, the charges against the Aisenbergs were dropped. The couple's attorneys filed a motion to collect legal fees, citing the Hyde Amendment, a federal statute passed in 1997 to protect defendants who have to hire private attorneys from undue financial strain in "frivolous, vexatious or bad faith" prosecutions. Any award goes toward legal fees and costs, and is separate from any civil lawsuits.

During hearings this week, the Aisenbergs' attorneys argued that their $2.34-million bill should be tripled to about $7-million because of the exceptional nature of the case and the egregiousness of the investigators' conduct.

Government attorneys said the law was set up to reimburse defendants, not lawyers. The government should not have to pay any more than the $250,000 the Aisenbergs paid to the Cohen, Jayson & Foster law firm, they said. Alternatively, the government should pay a $125 hourly rate laid out in one section of the law, not the higher hourly rate charged by Cohen, Jayson & Foster.

Merryday peppered both sides with questions about their theories on how he should apply the law, with the bulk of the back and forth involving federal prosecutor Ernest "Tony" Peluso.

At one point, Peluso said he couldn't imagine anything worse than having one of his four children go missing.

"I can think of a way to compound it," Merryday replied, without directly mentioning the Aisenbergs' indictment and subsequent turmoil.

Later, Peluso argued that the law wasn't meant to punish the government, but to reimburse legal fees. He said that because defendants with a net worth of more than $2-million cannot use the Hyde Amendment, its intent was not to send messages or to punish. If it were, he asked, then why would the lawmakers have barred rich people from sending the same message or seeking the same punishment?

"It's a splendid question, Mr. Peluso," Merryday replied.

Merryday aimed several of his questions at statements made by prosecutors in the indictment and in court. Without revealing his position on any given statement, Merryday said several times that he knew the difference between deceit and error, between outright lies and incomplete statements.

"I've asked myself those questions several times during this case," he said.

Merryday's most revealing comments came in a discussion of the tapes from the bugging.

Peluso sought to counter allegations that the two lead prosecutors in the case, Stephen Kunz and Rachelle DesVaux Bedke, misled judges or the grand jury about what was on the tapes. Just because the prosecutors disagreed with what Pizzo said could be heard on the tapes doesn't make them liars, he argued.

Merryday, however, said he had sent the prosecutors increasingly pointed messages during the case that he thought their taped evidence had problems. He wondered aloud during the hearings whether prosecutors should have shut down the case earlier.

Merryday said listeners who said they could hear incriminating statements that no one else seemed to hear were lying, deluded, possessed "superhuman" hearing or were so convinced that the statements should be there that they actually heard them.

"Unless pandemic deafness has struck, there is a very small number of people" who can hear incriminating statements on the tapes, he said, and they all belong to local law enforcement.

Merryday is expected to issue a written decision in the next few months. His decision could be appealed, which would delay the awarding of any money.

-- Graham Brink can be reached at (813) 226-3365 or .

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