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Aisenbergs' attorneys fire back at prosecutors

By LARRY DOUGHERTY

© St. Petersburg Times, published February 19, 2000


TAMPA -- In defense motions filled with scathing attacks, attorneys for Steven and Marlene Aisenberg claim investigators broke the law by secretly taping the couple's conversations about their missing daughter, Sabrina.

The motions, released Friday, seek the removal of 200 secretly recorded audio tapes from evidence and accuse the lead prosecutor and detective in the case of staging a "rush to indict."

Investigators manipulated the grand jury, sicced child-abuse investigators on the Aisenbergs and orchestrated media leaks to guarantee they would be charged, the motions state.

The couple is scheduled to stand trial in July on charges of lying about the disappearance of 5-month-old Sabrina, who has never been found. They deny any wrongdoing.

The 16 motions span more than 300 pages and give a glimpse into law enforcement's exhaustive search to find Sabrina after her parents reported her missing from their Brandon home on a Monday morning in November 1997.

Police tested the concrete slabs of eight houses built by Steven Aisenberg's employer, looking for the girl's body. They studied soil clinging to a shovel in the Aisenberg's garage and speculated it had come from a construction site.

The Aisenbergs' lawyers faulted investigators for focusing on those leads and excluding others that suggested someone outside the family was responsible. According to the motions, a neighbor with an 8-month-old-daughter reported a possible break-in attempt the same week Sabrina disappeared and an unidentified blond hair was found in Sabrina's bedding.

Investigators bugged the Aisenberg home in the days after the disappearance, and those tapes are at the center of the federal charges against the couple. In the motions filed Friday, defense attorneys accuse investigators of misinterpreting the conversations on those tapes, and of misleading the grand jury and the judge who had authorized the eavesdropping.

The motions faulted Hillsborough sheriff's detective Linda Burton for telling Marlene Aisenberg, on the day she reported Sabrina missing, that Burton thought she was responsible. The motions noted that in 1987 Burton received a letter of counseling for falsifying information. No further information was available Friday on that charge.

The motions quoted judicial opinions critical of lead federal prosecutor Stephen Kunz for his handling of several cases in Jacksonville.

There was little response from the investigators.

"Some tactics are designed to attack the prosecutors; others are to focus on the facts," said Monte Richardson, a spokesman for the U.S. Attorney's Office. "We are here to focus on the facts of this case."

Debbie Carter, a spokeswoman for the Sheriff's Office, declined to comment.

Court clerks declined to release some exhibits attached to the motions, including the key affidavit in support of the eavesdropping, until a judge has a chance to review them.

The principal thrust of the defense motions attacked the legal basis for the eavesdropping devices in the couple's kitchen and bedroom. Chief Hillsborough Judge F. Dennis Alvarez signed the order allowing the taps on Dec. 12, 1997, two weeks after Sabrina was reported missing.

The judge issued the order after evaluating sworn statements from Burton and Detective William Blake. Defense attorneys accuse Burton of misstating such facts as the security arrangements in the Aisenbergs' house and the amount of baby food they had on hand in an effort to make the couple look guilty.

The defense motions say that when it came time to renew permission for the bugs, investigators twisted the couple's recorded statements to make them appear more sinister and justify more taping. The defense says Marlene Aisenberg is recorded saying, "That's just what they said," on one tape. Investigators claim she said, "What if they check the shed."

The motions also attack the tapes on the grounds they violated the couple's legal privileges to speak confidentially as husband and wife and to speak in confidence with their lawyers.

A separate 84-page motion sought dismissal of the case for investigative and prosecutorial misconduct. It accuses federal prosecutors of dragging the Aisenbergs in front of the federal grand jury just to make them look bad, because the couple already had indicated they were going to plead the Fifth Amendment.

It says a reporter was leaked information that Steven Aisenberg had been accused of a sexual assault years before in Virginia.

Local defense attorneys had different reactions to the motions. Although he didn't think the Aisenbergs' allegations of prosecutorial misconduct would meet the high legal standard required to dismiss charges, former prosecutor John Fitzgibbons said the Aisenbergs' concerns about their marital and legal privileges "might be interesting."

Former prosecutor Steve Crawford said the allegations the Aisenbergs were forced to take the Fifth in front of the grand jury were, if true, "offensive as hell."

-- Times staff writers Kathryn Wexler and Linda Gibson contributed to this report. Larry Dougherty can be reached at (813) 226-3337 or dougherty@sptimes.com.

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