The judge's recommendation comes after a report in which he accuses detectives of lying.
By GRAHAM BRINK
© St. Petersburg Times, published February 15, 2001
TAMPA -- A federal judge issued a scathing report Wednesday that accuses Hillsborough sheriff's investigators of lying about their case against Steven and Marlene Aisenberg, and recommends pivotal evidence be tossed out of court.
U.S. Magistrate Judge Mark A. Pizzo said investigators acted with reckless disregard for the truth in obtaining warrants to bug the Aisenbergs' home after their 5-month-old daughter, Sabrina, was reported missing in 1997.
Using the words bizarre, baseless, distorted and careless, Pizzo wrote that lead detectives Linda Sue Burton and William Blake deliberately omitted facts and misled the judge who signed the warrants. Pizzo recommended that the secretly taped conversations investigators used to indict the couple be suppressed, a move that would leave the government's case in shambles.
"The detectives' implications (in the applications for the warrants) . . . are pure fiction," Pizzo wrote.
Federal prosecutors have 10 days to respond. U.S. District Judge Steven Merryday will make the final ruling after considering Pizzo's recommendation. District judges generally go along with the recommendations.
Officials with the U.S. Attorney's Office and the Sheriff's Office said they were reviewing the 63-page report and would not comment. Last year, a spokesman for Sheriff Cal Henderson said the sheriff would investigate how his detectives handled the case after it was closed.
The Aisenbergs, hosting a Valentine's Day party for their other daughter at their new home in Maryland, were reluctant to comment. Steven Aisenberg said he hoped authorities would begin looking for his daughter again.
"We think about our daughter every day," he said. "The most important thing to us is her safe return home."
A massive search ensued after Sabrina was reported missing from their former home in Valrico on Nov. 24, 1997. From the start, the Aisenbergs said someone must have crept into their home at night and stolen Sabrina. No trace of the child has been found.
Investigators quickly suspected the Aisenbergs had either murdered or sold their daughter. They applied to bug the home and placed the listening devices inside less than three weeks after the disappearance.
Investigators taped more than 2,600 conversations on 55 tapes over 79 days. Federal prosecutors used those tapes to persuade a grand jury to indict the Aisenbergs in 1999 on charges of conspiracy and making false statements about their child's disappearance.
At the time, authorities released several incriminating statements they said could be heard on the tapes. For instance, Marlene Aisenberg was quoted as telling her husband 29 days after Sabrina's disappearance: "The baby's dead and buried! It was found dead because you did it! The baby's dead no matter what you say -- you just did it!"
And in an application investigators needed to extend the time the listening devices could be used, she is quoted saying: "I hate you, I hate what you did to our tiny daughter."
In a 116-page motion, defense attorneys asked that the tapes be suppressed, arguing that misrepresentations, omissions of fact and outright lies were used in obtaining court orders permitting the surveillance. Attorney Todd Foster argued during a two-week hearing in December that the tapes were largely inaudible, and that the statements attributed to the couple were fabrications of overzealous detectives and prosecutors.
On Wednesday, Pizzo agreed, saying "no reasonably prudent" listener would come to the same conclusions as Burton and Blake.
"Such deductions defy human experience," he wrote. Pizzo said detectives seemed to be guessing what was said on the tapes and misled Hillsborough Circuit Judge F. Dennis Alvarez, who signed the extensions.
Pizzo went further, though, giving reasons why he thought the original application, not just the extensions, should be suppressed.
Pizzo said the defendants were correct in arguing that the investigators acted too quickly in obtaining the original warrant to bug the Aisenberg home. The law requires such surveilence techniques to be used as a last resort, after exhausting most other investigative measures.
Pizzo pointed out that the investigators had not finished an analysis of the Aisenbergs' finances, something that could have helped bolster the theory that they had sold their baby, or paid someone to dispose of the body.
Only a handful of major crimes in Florida can be used as a reason to bug a home, and the judge agreed with the Aisenbergs' attorneys that the original application included offenses not on the list. After a lengthy legal explantion, Pizzo said that this was not a "minor technical mistake" and that the proper sanction was to suppress evidence gathered on all the surveillance tapes, not just the conversations captured after the extensions were granted.
"The (detectives) did not give Judge Alvarez a full and complete statement about their investigative efforts," Pizzo wrote. "Judge Alvarez, unaware, had to fulfill his responsibilities in a vacuum of information."
Local attorneys following the case called the recommendation well-reasoned and a stunning blow that guts the government's case.
So far, the government has produced little evidence against the Aisenbergs other than the taped conversations. Provided they don't have some undisclosed evidence up their sleeve, the prosecutors are left with a dilemma, said Tampa defense attorney Rochelle A. Reback.
They can drop the charges, increasing the likelihood that the Aisenbergs could win significant financial restitution from the government. Or they can stick it out, and suffer through the Aisenbergs' remaining motions, the most significant of which charges prosecutorial misconduct and whether the grand jury had enough truthful evidence on which to base the indictment.
The motion could require the court to examine those secret proceedings, a rare occurrence, Reback said. The U.S. Justice Department also could launch its own investigation into whether prosecutors knowingly presented false evidence to the jurors.
As for the local detectives, Gov. Jeb Bush could assign a special prosecutor to look at how they handled the case, a scenario that wouldn't surprise former federal prosecutor John Fitzgibbons. Judge Pizzo made it clear that he thought the detectives lied to obtain the warrants, a crime under Florida law, Fitzgibbons said.
"That would be crossing the line," he said. "One way or the other, this doesn't look like it's going away any time soon."
-- Times staff writer Amy Herdy contributed to this report, which used information from the Associated Press. Contact Graham Brink at (813) 226-3365 or firstname.lastname@example.org.
Sept. 9: A federal grand jury indicts Steve and Marlene Aisenberg on charges of making false statements, accusing the couple of fabricating a kidnapping story in November 1997 to explain the disappearance of their 5-month-old daughter, Sabrina.
Oct. 6: The Aisenbergs appear in federal court in Tampa. Their lawyer, Barry Cohen, enters innocent pleas.
Feb. 18: Attorneys for the Aisenbergs file motions to suppress secretly recorded audiotapes from evidence. They say investigators broke the law by secretly taping the couple's conversations about their missing daughter. They also contend that investigators manipulated the grand jury, sicced child abuse investigators on the Aisenbergs and orchestrated media leaks to guarantee they would be charged.
May 15: Former FBI Agent Bruce Koenig, a prominent audiotape expert hired by defense lawyers for the Aisenbergs, states in an affidavit that key portions of the Aisenberg tapes secretly made by investigators are unintelligible.
Oct. 17: U.S. Magistrate Mark A. Pizzo rules that detectives appear to have omitted important evidence that contradicted their claims in order to get court approval to bug the Aisenbergs' home.
Nov. 13: U.S. District Judge Steven Merryday rules that the tapes made by Hillsborough sheriff's detectives of Steve and Marlene Aisenberg are "largely inaudible" and of generally poor quality. Merryday did not refer to specific quotes in his ruling, but said he could not hear at least some of the statements provided in transcripts.
Feb. 14: Magistrate Pizzo recommends that the tapes be thrown out.
-- Compiled from Times files by news researcher John Martin.
Missing Sabrina: The Aisenberg Odyssey