A U.S. district judge must decide whether to suppress the Aisenberg tapes secretly recorded by detectives.
By GRAHAM BRINK
© St. Petersburg Times, published February 16, 2001
TAMPA -- Sheriff Cal Henderson began the day Thursday explaining that he will not investigate the conduct of his own detectives while their case against Steven and Marlene Aisenberg remains open.
His statement came a day after a federal judge accused the lead sheriff's detectives of lying to obtain a warrant to bug the Aisenberg home after their 5-month-old daughter, Sabrina, was reported missing in 1997.
Whether to investigate the investigators is just one of many unanswered questions in a case that has again captured national attention, thanks to the judge's recommendation Wednesday to suppress key evidence.
Will the detectives face criminal charges themselves? Did prosecutors act unethically or illegally? Is the case headed for trial or the trash heap? Will taxpayers end up paying for the Aisenbergs' expensive legal defense? Is anyone still looking for Sabrina?
"This case highlights a breakdown in all the system's checks and balances," said former federal prosecutor Steve Crawford, who has followed the case closely. "The answers may not be pretty."
Federal prosecutors have 10 days to respond to U.S. Magistrate Judge Mark Pizzo's 63-page report. U.S. District Judge Steven Merryday will consider the report in deciding whether to suppress the tapes secretly recorded by detectives, a move that could cripple the government's case. District judges usually follow the recommendations.
Pizzo wrote that lead detectives Linda Burton and William Blake omitted and misrepresented facts to mislead a judge into signing a warrant and two extensions to bug the Aisenbergs' home in Valrico. Pizzo pulled few punches, calling parts of the investigative work "strikingly poor" and the detectives' interpretation of the largely inaudible recorded conversations "pure fiction."
From the time they reported Sabrina's disappearance on Nov. 24, 1997 the Aisenbergs have 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 a role in their daughter's disappearence. They bugged the home less than three weeks after the disappearance, taping more than 2,600 conversations over 79 days.
Pizzo could hear few of the incriminating statements the detectives claimed were on the tapes. Pizzo added that any "prudent listener" would have come to the same conclusion.
Sometimes good cops get carried away, Crawford said. It gets personal and they zero in on their suspect to the exclusion of everything else.
"That's where the checks are supposed to kick in," he said. "A supervisor or prosecutor should say, "Whoa, hold on. This isn't right.' That didn't happen in this case."
Instead, federal prosecutors Rachelle Desvaux Bedke and Stephen Kunz used those taped conversations to persuade a grand jury to indict the Aisenbergs in 1999 on charges of conspiracy and lying about their child's disappearance.
The prosecutors, however, appeared to have plenty of opportunity to know that the tapes were a potential problem. The 27-page indictment quotes liberally from the tapes, making no mention of the audibility problems. And Pizzo points out in his report that in at least one instance the government presented three versions of the same conversation.
"All are different; none make sense," Pizzo wrote. He added later that the interpretation of that conversation was "baseless and deliberately reckless."
Prosecutors cannot blindly follow what detectives claim to be accurate, said Tampa attorney Eddie Suarez. He described the conduct outlined in Pizzo's report as disturbing, especially because it centers on something as invasive as bugging someone's home and bedroom.
"Prosecutors should be on the front lines in the battle against this type of conduct," he said. "They should not be involved in it."
Officials with the U.S. Attorney's Office would not comment about what the prosecutors knew about the tapes, when they knew it and what they told the grand jury. Sheriff Henderson said he is concerned with Pizzo's report, but would not comment further.
The governor could appoint a special prosecutor to investigate and the U.S. Justice Department could also launch an inquiry into whether the grand jury was misled or evidence falsified.
Officials with the Hillsborough State Attorney's Office said Pizzo's report was being reviewed and filing charges had not been discussed. Hillsborough Chief Judge F. Dennis Alvarez, who signed the warrants, said he has not considered whether he could hold the detectives in contempt for misleading him.
Judge Merryday is known as a careful and deliberate thinker who will not likely rush to any decisions. If Merryday tosses out the tapes, prosecutors could appeal, which could delay the proceedings for a year. Without the tapes, most legal observers think the government's case is sunk.
If Merryday disagrees with Pizzo and lets the tapes remain, he will then have to consider the pending question of whether the tapes are audible. Merryday said last year that the tapes were "largely inaudible," but had not made his final decision.
"These things have a way of getting really nasty once a judge makes a ruling," said Tampa lawyer Edward Page, who spent 10 years as a federal prosecutor, including five in Washington, D.C. with Special Prosecutor Kenneth Starr.
Prosecutors also could drop the charges or wait for a judge to do it for them. Either way, taxpayers could be on the hook for not only the cost of the failed prosecution, but the Aisenbergs' hefty legal bill.
If the case is dropped, the Aisenbergs could sue the Sheriff's Office, the detectives and the prosecutors. Most government officials, however, have qualified immunity, making it difficult to win a suit. A suit also would expose the Aisenbergs to depositions and a litany of potentially incriminating or embarrassing questions.
A more likely scenario would be to use the Hyde Amendment, a 4-year-old law that allows federal criminal defendants to seek reimbursement of legal fees and other litigation expenses. The Aisenbergs would ask the presiding judge to determine whether the government's case was "frivolous, vexatious, or in bad faith." If so, they could recoup what some estimate to be a seven-figure legal bill.
It's not unprecedented. A banker from Virginia won a $570,000 judgment in 1999 when a judge ruled that over-zealous prosecutors brought a case devoid of evidence. And a Massachusetts factory owner won $68,000 in December when a federal prosecutor admitted that officials had concealed evidence that would have exonerated him.
"It's a strong possibility," Crawford said. "The behavior of law enforcement in this case can be described as outrageous."
In the wake of Pizzo's report, a familiar question was been raised: Is anyone bothering to look for Sabrina?
Pizzo's revelations have rekindled the frustrations of people like Esther Graesser, who swears she saw Sabrina in the days after the reported disappearance, but claims to have been ignored when she reported it to authorities. The Aisenbergs, too, have asked why authorities focused on them so early on, when the likelihood of finding Sabrina was greatest.
Graesser, 82, of St. Petersburg, said she saw Sabrina with a strange couple at Tampa International Airport the day after the child was reported missing. The baby's hair was cut short, she was crying uncontrollably and the couple had no supplies such as diapers or a bottle. Graesser said she called the Sheriff's Office, but nobody ever got back to her.
"I know that baby wasn't dead then," she said. "They seemed to be in a big hurry to point fingers."
- Times news researcher John Martin contributed to this report. Contact Graham Brink at (813) 226-3365 or firstname.lastname@example.org.