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The government could owe $3.75-million if a judge agrees that the Aisenberg prosecution was frivolous or in bad faith.
By GRAHAM BRINK
© St. Petersburg Times, published March 27, 2001
TAMPA -- Attorneys for Steven and Marlene Aisenberg filed a motion Monday outlining reasons why they think the government should pay the couple's legal fees, which could top $3.75-million.
That's how high the fees could go if a federal judge agrees that the prosecution of the Valrico couple accused in the disappearence of their 5-month-old daughter was frivolous or in bad faith.
The 64-page motion rips into the Hillsborough sheriff's detectives and the two lead prosecutors, calling the case irresponsible, dishonest and "designed to frame two innocent people."
"The Aisenbergs have lost their daughter, lost their reputations, lost their home, lost their jobs and lost their happiness," defense attorneys Barry Cohen and Todd Foster wrote in the motion. "Law enforcement must be shown that this type of conduct will not be tolerated."
Prosecutors were aware that the motion was filed and were trying to obtain a copy, said Steve Cole, spokesman for the U.S. Attorney's Office. He declined further comment.
Cohen and Foster also declined to comment, citing a local rule that forbids commenting on pending cases.
Investigators suspected the Aisenbergs soon after Sabrina was reported missing on Nov. 24, 1997. They bugged their home, and a grand jury indicted the Aisenbergs in 1999 on charges of conspiracy and making false statements.
The charges were dropped last month after a federal judge recommended the tapes be suppressed. The judge said that the detectives had lied in obtaining permission to bug the home and that the tapes contained none of the incriminating comments cited in the indictment.
The Aisenbergs maintained all along that someone must have crept into the home and snatched the baby. They hired Cohen just days after Sabrina went missing, saying it was obvious investigators had targeted them as the chief suspects.
The motion asks for $1.67-million in fees for the team of lawyers and the investigator who worked on the case for the past 3 1/2-years.
Cohen, however, waived his $400-an-hour fee, saying the "time is being donated for the positive effect we believe the outcome of this case will have upon future proceedings in this district, state and nation." The motion estimated Cohen could have billed several million dollars.
If U.S. District Judge Steven Merryday decides the prosecution was in bad faith, he could adjust the $1.67-million figure up or down depending on a number of factors such as the experience of the attorneys, the difficulty of the case and the results obtained. The judge could as much as double the fees.
The motion also asks for costs that include legal research, travel, telephone bills and fees for expert witnesses such as former FBI Agent Bruce Koenig, a prominent audiotape expert hired by the Aisenbergs; he spent hundreds of hours on the case. Those costs could add several hundred thousand dollars.
The lawyers filed the motion citing the Hyde Amendment, a 4-year-old law that allows federal criminal defendants to collect legal fees and costs if a judge determines the prosecution was "frivolous, vexatious or in bad faith."
Defense attorneys must prove the alleged problems were not simply mistakes. They have to convince the judge that the authorities knew what they were doing was wrong and went ahead with the prosecution anyway.
The motion outlines dozens of incidents where the Aisenbergs' attorneys believe authorities stepped over the line. They cite the federal judge's findings that the detectives were recklessly misleading about what the bugging devices picked up.
According to the motion, the two prosecutors, Stephen Kunz and Rachelle DesVaux Bedke, misled three federal judges. They distorted evidence to convince the grand jury to indict by providing faulty transcripts that made it seem the Aisenbergs had made statements that could not be heard on the tapes, according to the motion.
The prosecutors also leaked information from grand jury testimony to sway public opinion and withheld evidence favorable to the Aisenbergs, the motion stated. The motion encourages the judge to view the grand jury transcripts, which normally remain sealed.
Bedke also 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 motion stated. The reference did not show up in the indictment and the defense attorneys say it does not exist.
The motion also places responsibility with U.S. Attorney Donna Bucella, the prosecutors' boss. The Aisenberg' attorneys said in the motion that they had hoped Bucella would recognize "the terrible wrong exposed here" but she has refused.
Former federal prosecutor John Fitzgibbons thinks the government's reaction will be two-pronged. First, they will attack the premise that the prosecution was in bad faith, he said. If that doesn't work, they will claim that the fees and costs are way too high.
There have been only a handful of cases that have used the Hyde law. In one, a banker from Virginia won a $570,000 judgment in 1999 when a judge ruled that overzealous 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 unchartered water here in the Tampa area," Fitzgibbons said. "That makes predicting the outcome particularly difficult."