Aisenberg prosecutors immune, judge says
Prosecutor protection overrides the Aisenberg claim that their rights were violated when their daughter disappeared.
By GRAHAM BRINK
Published July 21, 2004
TAMPA - Two U.S. attorneys cannot be held liable for their roles in the doomed criminal case they brought against Steve and Marlene Aisenberg, a federal judge has ruled.
Federal prosecutors receive immunity from lawsuits for any acts connected to their prosecutorial duties, regardless of "motive or intent," U.S. District Judge Steven Merryday wrote in a 35-page ruling made public this week.
In such cases, the immunity laws stand even if a prosecutor acts "wrongfully or even maliciously," Merryday quoted from case law.
The Aisenbergs filed a lawsuit last year against the two prosecutors and Hillsborough sheriff's investigators, alleging that they violated their civil rights during a malicious prosecution.
The couple faced federal charges after their infant daughter, Sabrina, disappeared from their Valrico home in 1997. The charges were later dropped when the case against them crumbled.
In his ruling, Merryday wrote that assistant U.S. attorneys Stephen Kunz and Rachelle Desvaux Bedke were protected from civil claims alleged by the Aisenbergs under immunity laws meant to protect prosecutors from harassing or intimidating lawsuits.
Barry Cohen, the Aisenbergs' lead attorney, said he understood Merryday's decision, but added that federal prosecutors should not be allowed to get away with a "despicable and malicious" prosecuting without facing any punishment.
"Right now, Mr. Kunz and Ms. Bedke are the incidental beneficiaries of an important legal principal," Cohen said. "But we should not tolerate a system in which federal prosecutors admit to filing a criminal charge against a citizen in bad faith but are never held accountable."
Cohen vowed to further pursue his grievances against Kunz and Bedke, though he would not say what he had in mind.
The lawsuit also makes claims against several officials from the Hillsborough Sheriff's Office. Judge Merryday sent those to state court to be sorted out.
The Aisenberg saga began on Nov. 24, 1997, when the couple reported 5-month-old Sabrina missing from their Valrico home. A massive search ensued, but she has never been found.
Hillsborough sheriff's investigators quickly suspected the parents and received a judge's 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 dozens of incriminating statements, including Marlene telling Steve, "I hate you, I hate what you did to our tiny daughter." They said Steve could be heard saying, "I wish I hadn't harmed her. It was the cocaine."
The Aisenbergs' attorneys argued from the start that no such statements were made. They said many of the tapes were unintelligible and some statements were taken radically out of context. They requested that the tapes be publicly released.
Prosecutors fought to keep the tapes secret until trial, something Merryday described in the ruling filed late Friday as a "strange resistance."
The judge wrote that he tried to signal in November 2000 that the evidence in the case was seriously in doubt, when he wrote in an order that he found the tapes "largely inaudible." Despite this, federal prosecutors pursued the case and insisted the tapes contained incriminating statements, he wrote.
A few months later, Magistrate Judge Mark Pizzo wrote a scathing report, describing parts of the investigation as bizarre, baseless, distorted and careless.
Pizzo said the limited number of tapes he listened to did not contain incriminating comments and recommended all tapes from the bugging be suppressed. The news gutted the prosecutors' case. They moved to drop all charges in February 2001.
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.
In an unprecedented move, the federal prosecutors agreed that the Hyde Amendment applied to the case, but they disputed the amount of money. Merryday originally awarded the Aisenbergs $2.7-million, but an appeals court knocked it down to $1.3-million.
Any such award goes toward legal fees and costs, and is separate from what might be awarded in a civil lawsuit.
-Graham Brink can be reached at 813 226-3365 or brink@sptimes.com