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Defense seeks suit's dismissal

Lawyers say a couple whose infant vanished was not framed by sheriff's officials.

By CHRISTOPHER GOFFARD
Published February 24, 2005

TAMPA - A year and a half after Steve and Marlene Aisenberg sued the Hillsborough Sheriff's Office claiming they were framed in connection with the disappearance of their infant girl, lawyers were in court fighting to scuttle the suit.

Attorney Gary Trombley, who represents members of the Sheriff's Office, argued Wednesday that investigators should not be liable for what plaintiffs call "malicious prosecution" because it was a grand jury, not the investigators, that indicted the Aisenbergs.

"They were not the cause of legal proceedings," Trombley said of investigators. "We have a federal indictment."

Aisenberg attorney Todd Foster shot back that law enforcement fed false information to the grand jury, which served as "an instrument, a tool, of the misconduct." In an interview afterward, he added: "People have to have confidence in law enforcement. You just can't have people running wild and getting away with lies to judges and grand juries."

The lawyers sparred in a hearing before Hillsborough Circuit Judge Williams Levens, who is considering the defendants' motion to dismiss the suit. The hearing is expected to continue today.

The Aisenbergs' 5-month-old daughter, Sabrina, disappeared from the family's Valrico home in 1997 and has never been found. In 1999, the couple was indicted and accused of lying about the child's disappearance.

The key evidence was a series of allegedly incriminating comments drawn from recording devices secretly planted in the Aisenbergs' kitchen and bedroom. But federal prosecutors were forced to drop the charges in February 2001 after a federal magistrate judge concluded the tapes were largely unintelligible and should be thrown out.

In 2003, U.S. District Judge Steven Merryday ordered the government to pay the Aisenbergs $2.7-million in attorneys' fees, though an appeals court cut the award to $1.3-million.

Also in 2003, the Aisenbergs sued the Hillsborough Sheriff's Office, two federal prosecutors, and members of the Sheriff's Office, claiming they violated the Aisenbergs' civil rights with a malicious prosecution.

Last summer, Merryday tossed out the claims against the prosecutors, ruling that immunity laws shielded them from civil liability. Merryday sent the remaining claims to state court.

In court Wednesday, Aisenberg attorney Christopher Jayson said investigators had fabricated evidence that the Aisenbergs had harmed their child.

"It goes beyond all bounds of human decency, and is to be regarded as odious and utterly intolerable in a civilized community," Jayson said.

Thomas Gonzalez, another attorney representing members of the Sheriff's Office named in the suit, said officials had acted in good faith.

"There was no going after the plaintiffs," he said. "These folks were doing their job, and doing it honestly."

Christopher Goffard can be reached at 813 226-3337 or goffard@sptimes.com

[Last modified February 24, 2005, 14:56:38]