The couple's lawyer wants the tape reviewed to dispute prosecutors' claims.
By LARRY DOUGHERTY
© St. Petersburg Times, published January 18, 2000
TAMPA -- Nothing about the criminal case of Steven and Marlene Aisenberg has been routine, and perhaps the best proof was in last week's legal gyrations involving a cassette tape.
Not once but twice, combative Tampa defense lawyer Barry Cohen filed one of the government's own secret tape recordings of the Aisenbergs in an attempt to get the judge to determine whether federal prosecutors were honest about the tape's contents.
The Aisenbergs are accused of lying about the disappearance of their 5-month-old daughter, Sabrina, in 1997.
Cohen claimed the tape did not contain what prosecutors said it did -- Steven Aisenberg admitting he hurt his daughter and blaming cocaine. The cocaine comment was an explosive accusation made by a federal prosecutor in a Maryland courtroom, but it was not included in the indictment.
Cohen and his defense team asked a judge, who already had told prosecutors to be specific about the tape's contents, to listen to the tape and decide for himself. It was an unusual request, local defense lawyers say, because such decisions are usually left to jurors.
But given the impact of pretrial publicity on potential jurors, the lawyers said, it could be a step worth taking.
U.S. Magistrate Judge Mark A. Pizzo balked, ordering the tape returned to Cohen, effectively blocking its public release, even though it had been in a public file, which generally means it would have been open to public inspection. That prompted objections from lawyers representing newspapers and a TV station trying to obtain the tape.
Federal prosecutors, meanwhile, aren't talking.
The debate prompted some intriguing questions. What is on the tape? Who is telling the truth? And why shouldn't the public hear it?
"It's hard to know whom to believe -- it's obvious that one side is inaccurate," said George Tragos, a Clearwater lawyer and a former federal prosecutor.
Attorneys for the Aisenbergs declined to comment. The U.S. Attorney's Office was closed Monday for the Martin Luther King Jr. holiday, and no spokesman could be reached. Federal prosecutors typically refrain from commenting on pending cases.
The question of what one tape contains -- investigators recorded 214 tapes during three months of eavesdropping at the Aisenbergs' Brandon house -- will ultimately be decided by a jury, Tragos said.
In the meantime, a judge's perception of what's on a given tape might not be as important as the public's. People who will one day be jurors are exposed to every bit of pretrial maneuvering.
"Barry (Cohen) is very cognizant of ethical rules that say attorneys can't try their cases in the press," said Steve Crawford, a former federal prosecutor now in private practice in Tampa. "He knows that if he files a pleading in open court, it's fair game, and it can be just as good, if not better, than filing a press release."
Crawford suggested Cohen is responding to a federal system that lets prosecutors release most of the information about a pending criminal case.
"I've been appalled at what I've called press release indictments, which contain surplus language that does nothing other than inflame," Crawford said.
Prosecutors "stand back and say to defense lawyers that you can't say anything about the case other than your clients aren't guilty," Crawford said. "I've always thought that was grossly unfair."
The Aisenbergs are charged with lying to police about such things as their reactions to the news their daughter was missing, and what clothes they were wearing when they learned she was gone.
Yet the indictment quotes secretly recorded conversations that imply Steven Aisenberg harmed his daughter and Marlene Aisenberg helped cover it up.
While it's important to hash these issues out, lawyers said, things shouldn't get out of hand.
"Magistrate Pizzo has to make sure this doesn't become a circus, and that we don't have public discussion and debate over the tapes until the appropriate time, which is trial," Crawford said. "Judge Pizzo, somewhat conservatively, decided to keep the tape out of the public record."
Tragos said it is common in federal court for judges and lawyers to seal sensitive evidence. But Pizzo's decision last week brought protests from lawyers for the St. Petersburg Times, the Tampa Tribune and WFLA Channel 8, who filed unsuccessful motions to make the tape public.
"Ordinarily, such an exhibit becomes public information," said Tom McGowan of the St. Petersburg firm of Rahdert, Anderson, McGowan & Steele, which represents the Times on First Amendment issues. "The Aisenbergs know what's in there. The experts know. The transcript of the tape is reported in the motion. The only thing that is secret is the nuances, and the way things sound. "When you apply the First Amendment test, I don't see how any harm can be done, how justice can be stopped" by unsealing the tape, McGowan said.