Investigation sought on detectives' conduct
By GRAHAM BRINK and SUE CARLTON
© St. Petersburg Times, published February 22, 2001
TAMPA -- It started on a November morning in 1997 with a frantic woman banging on a neighbor's door.
"My baby's gone, my baby's gone!" Marlene Aisenberg screamed.
Two years later, federal prosecutors charged Aisenberg and her husband, Steven, in the disappearance of their 5-month-old daughter, Sabrina. They claimed to have secretly taped conversations of the Aisenbergs plotting to cover up the crime.
"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!" the indictment quoted Marlene Aisenberg as saying.
On Wednesday, the case collapsed.
In a two-page filing the prosecutors moved to dismiss all the charges, saying they didn't have enough evidence to get a conviction.
The fallout came fast. State Attorney Mark Ober asked the governor to appoint a special prosecutor to look into allegations of criminal misconduct by the sheriff's detectives who investigated the case. And the government could be on the hook for millions of dollars in legal fees and punitive damages.
At the heart of the dismissal motion are the very tapes that had led detectives to arrest the Aisenbergs, the tapes a federal judge called inaudible and void of the incriminating statements.
Defense attorneys had "exposed the biggest open secret of the criminal justice system, which is that cops sometimes lie," said Rochelle Reback, a Tampa lawyer not involved in the case. "It's great to see the system unmasked."
In Maryland, where the family moved in 1999, the Aisenbergs said they would continue looking for their daughter and worried that people would think they got off on a technicality.
"Sometimes it's easier to follow preconceived ideas and throw away the facts than to change your preconceived notion and follow the truth," Steven Aisenberg said.
A broad search ensued after Sabrina was reported missing from their Valrico home on Nov. 24, 1997. 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 murdered or sold their daughter. They placed listening devices inside the home 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, some experts said the indictment was a ploy to get the Aisenbergs to confess, or to get one of them to turn on the other.
After hearing two weeks of testimony in December 2000, U.S. Magistrate Judge Mark Pizzo released a blistering report last week that said sheriff's detectives Linda Sue Burton and William Blake deliberately omitted facts and lied to the judge who signed the warrants. Pizzo said the taped conversations were largely inaudible and contained none of the incriminating statements that investigators claimed were there.
The judge's recommendation that all the tapes be suppressed led to the government's decision to drop the charges.
Officials with the U.S. Attorney's Office would not comment Wednesday, a stark contrast to the day 17 months ago when then-U.S. Attorney Charles Wilson stood at a news conference flanked by poster-sized boards of the alleged incriminating quotes and announced the indictment.
That contrast irked the Aisenbergs' attorney, Barry Cohen.
"It was all a total fraud and a total lie," Cohen said Wednesday as calls from CNN, MSNBC and other national television news outlets streamed into his Tampa office.
For three years, a local law muzzled Cohen from talking about the pending case. On Wednesday, he ripped everyone involved.
Cohen questioned why lead prosecutors Stephen Kunz and Rachelle DesVaux Bedke still had their jobs, accusing them of using lies and distortions to bolster the case. Cohen paraphrased an unrelated appellate court ruling that said giving Kunz a grand jury was like giving someone a loaded gun.
Cohen left his most stinging comments for the detectives, Burton and Blake. He said they gave good cops a bad name and wondered why they weren't in jail. He held Sheriff Cal Henderson equally responsible.
"When they couldn't find evidence they made it up," he said. "Not one piece of (legitimate) evidence has been accumulated in three years."
Cohen vowed to write a letter to U.S. Attorney General John Ashcroft asking for an investigation. A spokeswoman with the U.S. Justice Department said the matter was not under review since the judge's report did not contain allegations of prosecutorial misconduct.
Henderson met Wednesday with Ober to request an independent investigation of Burton and Blake. Ober also ordered a review of 45 other cases worked by the detectives.
The sheriff said he did not know until recently that the case was in serious trouble.
Both Burton and Blake will be on paid administrative leave during the investigation, Henderson said. He said he was "disturbed by the whole process."
U.S. District Judge Steven Merryday is expected to consider the request to dismiss the charges and issue a decision. He could act immediately or take some time. The judge could call a hearing and ask pointed questions of the prosecution, though attorneys say that would be unusual.
Merryday also could decide to dismiss the charges "with prejudice," which would prevent prosecutors from bringing the same charges. It would not, however, preclude investigators from filing other charges related to Sabrina's disappearance.
Lawyers say they expect to see the Aisenbergs take advantage of the Hyde Amendment, a 4-year-old law allowing people accused of federal crimes to ask a judge to order the government to pay legal fees in cases considered "frivolous, vexatious or in bad faith."
Cohen would not put a figure on the cost of the Aisenberg defense.
"I anticipate in the next 30 days the Aisenbergs will be filing a motion seeking literally millions of dollars for attorneys fees, costs and expenses," said former federal prosecutor John Fitzgibbons.
Tampa lawyer Ed Page, a former prosecutor who worked with independent counsel Kenneth Starr, said he sees the likelihood of recovering money as "better than a 50-50 chance."
"It's a lot different to undertake a prosecution and find you have a missing witness or someone changed their story. Here, you had no story from the outset," he said.
The Aisenbergs could also bring a civil rights action. However, that could open them up to depositions and days of being grilled, separately, about what happened to Sabrina.
Cohen did not seemed worried about such a prospect and vowed to use every available avenue for restitution.
"We will take advantage of whatever the law permits," Cohen said. "My clients are not afraid of cross-examination."
In the past year, federal prosecutors have seen a series of major criminal cases crumble.
Prosecutors dropped the indictment of former Tampa City Council member Ronnie Mason, and they faced scorn from a federal magistrate for bringing a case against a supporter of former City Council member Perry Harvey Jr.
Judges also criticized a federal prosecutor for inappropriately trying to influence a grand jury and concluded another prosecutor committed intentional misconduct during a trial.
Television trucks returned Wednesday to the quiet cul-de-sac in Valrico where the Aisenbergs lived.
"People have taken sides for or against them," said Charles Jones, who lives next door to the former Aisenberg house. His wife, Martha, was the first person Marlene Aisenberg went to the morning Sabrina was discovered missing.
"We have our doubts," Jones said. "I just wish they'd found out the truth."
-- Times staffers Amy Herdy, David Karp, Paul De la Garza, Linda Gibson and John Martin contributed to this report. Contact Graham Brink at (813) 226-3365 or firstname.lastname@example.org.
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