Bungled Aisenberg case may be costly
By GRAHAM BRINK
© St. Petersburg Times,
TAMPA -- Federal prosecutors acknowledged Monday that they blew the case against Steve and Marlene Aisenberg. Now the question is how much will the mistake cost.
Prosecutors filed a 19-page response to the Aisenbergs' request that the government pay their attorneys' fees.
The Aisenbergs filed the claim using the Hyde Amendment, a 4-year-old law that allows federal criminal defendants to collect fees and costs if the prosecution was "frivolous, vexatious or in bad faith."
Because prosecutors agreed that the Hyde Amendment applies, the only thing left to argue is how much money the Aisenbergs' lawyers will collect. The bill could range from mid-six figures up to a few million dollars.
"They threw in the towel, basically rolled over," said Tampa defense attorney and former federal prosecutor Steve Crawford.
Barry Cohen, the Aisenbergs' lead attorney, has 45 days to respond. He did not want to comment except to say that the issues will be discussed in the appropriate forum.
U.S. Attorneys Office officials would not comment on the admission or what it could mean for the careers of the two lead prosecutors, Stephen Kunz and Rachelle Desvaux Bedke.
They brought the indictment against the Aisenbergs and told federal judges on several occasions that they had the evidence to back up their allegations. As is standard procedure, the matter has been referred to the Justice Department's Office of Professional Responsibility.
Investigators suspected the Aisenbergs soon after their 5-month-old daughter, Sabrina, was reported missing Nov. 24, 1997. Authorities bugged their home, and a grand jury indicted the Aisenbergs in 1999 on charges of conspiracy and making false statements.
The charges were dropped in February after a federal judge recommended the tapes be suppressed. The judge said the detectives had lied in getting permission to bug the home and that the tapes had 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 disappeared and said it was obvious investigators had targeted them as the chief suspects.
In the initial motion for attorneys' fees, Cohen and his law partner, Todd Foster, ripped into the Hillsborough sheriff's detectives and the two lead prosecutors and called the case irresponsible, dishonest and "designed to frame two innocent people."
The motion asked for $1.67-million in fees for the legal team. Cohen waived his fee, which could have totaled several million dollars.
The Aisenbergs' motion also asked for costs that included 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. Those costs add several hundred thousand dollars to the total.
The Hyde Amendment provides judges with the power to double the amount if the case includes certain factors such as particularly difficult legal issues or the need for special litigation skills. Cohen and Foster argued that the Aisenberg case met those requirements and warranted the increase.
The government countered in the response filed Monday that the hourly fees were too high. Foster, for instance, calculated his fee at $300 an hour. The government contended that the law states that the fees should not exceed $125 an hour.
The government also stated that an investigator with Cohen's firm spent a lot of time dealing with "entertainment or news media" activity. Those hours should not be included in the calculation, they argued. Finally, the government stated that the case contained none of the required factors for a judge to increase the settlement.
The government has asked for mediation. The final amount could take months to decide.
The Aisenbergs are expected to file a multimillion dollar civil lawsuit against the Hillsborough County Sheriff's Office and possibly members of the U.S. Attorney's Office in Tampa.
- Contact Graham Brink at (813) 226-3365.
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