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As a judge ends the case against the child's parents, the governor names a prosecutor to study the detectives.
By GRAHAM BRINK
© St. Petersburg Times, published February 23, 2001
TAMPA -- As one investigation into the disappearance of Sabrina Aisenberg came to an end Thursday, another one began.
A federal judge agreed to dismiss all charges against her parents, Steven and Marlene Aisenberg.
The move came a day after federal prosecutors filed a request with U.S. District Judge Steven Merryday, saying they could not go forward knowing they had no reasonable probability of winning a conviction.
Merryday's order ends the criminal prosecution of the Aisenbergs, who were charged with lying about the disappearance of 5-month-old Sabrina.
Now the investigation shifts to the investigators.
Gov. Jeb Bush assigned a special prosecutor Thursday to look into the conduct of two sheriff's detectives accused of lying to a judge when getting permission to bug the couple's home. And defense attorneys have vowed to pursue restitution from the Sheriff's Office and the U.S. Attorney's Office in Tampa.
Local attorneys familiar with the federal court system question how prosecutors could have sought an indictment based on the tapes. And they wonder why the U.S. Justice Department doesn't investigate the federal prosecutors.
"My experience has been that the department has made inquiries in cases much less involved than this," said former federal prosecutor John Fitzgibbons. "I think there are some questions that need to be answered."
Sabrina Aisenberg was reported missing from the Aisenbergs' home in Valrico on Nov. 24, 1997. The Aisenbergs said someone must have crept into the home and snatched the baby. No trace of the child has been found.
Investigators suspected the couple knew what had happened to their child, and sought permission to bug the home.
Based on information detectives and prosecutors said was gleaned from those surveillance tapes, a grand jury indicted the couple in September 1999, charging them with conspiracy and making false statements about their child's disappearance.
Last week, U.S. Magistrate Judge Mark Pizzo released a report that said the tapes were mostly inaudible, and contained none of the incriminating statements that investigators claimed were there. Pizzo recommended the tapes be suppressed from evidence, prompting prosecutors to have the charges dropped.
A Justice Department spokesman said Thursday that Pizzo's report does not accuse prosecutors of misconduct.
However, Pizzo was not asked to address the prosecutors' role, said Todd Foster, one of the Aisenbergs' defense attorneys. The judge was limited to determining how the detectives obtained permission to use the bugs.
"It doesn't take much to read between the lines, though," Foster said. "Judge Pizzo said the statements were inaudible. He found wrongdoing.
"So why did the prosecutors use what no one else could hear on the tapes?"
The two lead prosecutors, Stephen Kunz and Rachelle DesVaux Bedke, used the tapes to get the grand jury to indict. The indictments included quotes they claimed were on the tapes, but that Pizzo said did not exist.
Fitzgibbons said it raises questions about whether prosecutors used information they knew was false or misleading to indict the Aisenbergs, or whether they didn't listen to the tapes and took the detectives' word for what they contained.
Either way, Fitzgibbons thinks the Justice Department should be interested in finding out.
"This is serious stuff," he said. "How did false information get presented to the grand jury and then appear on the indictment?"
By asking to dismiss the case, the government has helped to make answering that question more difficult.
The Aisenbergs' attorneys had filed a motion asking a judge to look into the prosecutors' conduct and to unseal the grand jury records, which would help show whether prosecutors knew the tapes were inaudible.
The motion outlined in great detail the defense attorneys' theories on how the prosecutors must have known that the tapes were inaudible, but went ahead anyway, smearing the reputations of their clients. They accused the prosecutors of subterfuge and using "sham subpoenas," among other things.
They said that Bedke had deliberately misled a federal judge at a bond hearing when she said that Steven Aisenberg talked of being high on cocaine the night Sabrina disappeared. The reference did not show up in the indictment and the defense attorneys claim it does not exist.
The motion also attacked Kunz's "pattern" of misleading grand juries. Appellate judges had criticized Kunz's handling of grand juries in Jacksonville and Volusia County.
But now that the case was been dropped, that motion will not be argued in court. The prosecutors may not have done anything wrong, but now it will be tough to tell, said Rochelle Reback, a Tampa lawyer not involved in the case.
"By procedural finesse they can avoid an inquiry into their role," she said.
The grand jury records could be unsealed as the Aisenberg attorneys pursue civil remedies or restitution using the Hyde Amendment, a law that allows defendants to collect legal fees if a judge determines the prosecution was "frivolous, vexatious or in bad faith."
It's also possible that the judge could use his administrative authority to look into what happened. He could unseal the grand jury records or hold contempt hearings, although that happens only in rare cases.
"So here we are with circumstances that make it difficult to hold prosecutors accountable for what they may or may not have done," Reback said. "These are the same people that hold criminals accountable for their actions."
-- Contact Graham Brink at (813) 226-3365 or firstname.lastname@example.org.