A Times Editorial

Look beyond the detectives

© St. Petersburg Times, published February 25, 2001

The collapse of the Aisenberg case has spawned a feeding frenzy focusing on the actions of two detectives. But the cops alone didn't blow this case, and any investigation into misconduct needs to reach higher into the ranks of state and federal law enforcement.

U.S. District Judge Steven Merryday Thursday threw out the case against Marlene and Steven Aisenberg, accused by the government of lying about the 1997 disappearance of their 5-month old daughter, Sabrina. The move followed the ruling by U.S. Magistrate Mark Pizzo that two Hillsborough County sheriff's detectives lied and misrepresented conversations of the couple obtained by a wiretap. After Pizzo recommended the tapes be suppressed, federal prosecutors moved to dismiss the indictment, saying they lacked "a reasonable probability of conviction."

After the embarrassing collapse of the government's case, State Attorney Mark Ober and Sheriff Cal Henderson were right to ask Gov. Jeb Bush to appoint a special prosecutor. At issue is not just whether the detectives lied, but whether they conspired to deny the Aisenbergs due process. The sheriff himself is not off the hook. These are not two inexperienced cops who worked outside the chain-of-command. The sheriff's office staked enormous prestige on the quality of its case, even after questions arose about evidence and procedure.

The probe should examine how the safety net that protects the accused disintegrated in this case. Then-prosecutor Eric Myers, now a county judge, had the responsibility to ensure the wiretap application met the legal burden for invading a citizen's privacy. Pizzo found it flawed on its face. Sheriff's officials targeted crimes that fell outside the purview of wiretaps, and investigators didn't complete routine work before seeking an intercept. Myers failed to question the detectives or to verify the claims he made to Hillsborough Chief Judge Dennis Alvarez, who authorized the eavesdropping, according to Pizzo, largely in the dark. "Myers likely just signed off on the periodic reports," Pizzo found.

The invasiveness of a wiretap makes it far more serious for a judge to authorize than a routine warrant for a traffic ticket. Myers and Alvarez had the responsibility under the law to subject the application to a rigorous review. That's what prior judicial approval is for. The state should investigate what foundations were laid for the wiretaps to be allowed. After all, the prosecutors apparently had no case without them.

The Justice Department should review whether the two federal prosecutors knew the wiretaps were flawed or knowingly presented faulty evidence to the grand jury. Pizzo found the taped conversations were largely inaudible and lacked the incriminating statements that investigators claimed. The judge noted the government presented several versions of the same conversation -- "all are different; none makes sense" -- and called some quotes attributed to the Aisenbergs "pure fiction."

The Justice Department has taken a self-serving position by declining to open a formal inquiry. A spokeswoman hid behind the fact that Pizzo's report did not allege prosecutorial misconduct. But any reasonable reading of the report -- especially considering why the government dropped the case -- calls for an investigation into what the prosecutors knew and when. Lawyers have an obligation to act in good faith and stand by the evidence they present. And given the way her predecessor grandstanded on this high-profile case, U.S. Attorney Donna Bucella had a duty to speak publicly when the case collapsed.

The fate of the lost child, Sabrina, is an even greater mystery now that three years are lost and the case is a shambles. The chances of a real breakthrough appear bleak. The damage to the couple's reputation is done. Perhaps the best they can hope for is to recover their legal fees from the government, which is allowable for the victims of bad-faith prosecutions. It's troubling to wonder how many other criminal cases might have been cooked in similar fashion against defendants who, unlike the Aisenbergs, lacked able lawyering.

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