The legal team represents the couple exonerated when prosecutors dropped the missing-child case.
By GRAHAM BRINK
© St. Petersburg Times, published August 17, 2001
TAMPA -- Barry Cohen wants the federal government to pay up. But he also wants a chance to show just how unfairly his clients, Steve and Marlene Aisenberg, were treated.
Cohen began representing the former Valrico couple shortly after they reported the disappearance of their 5-month-old daughter, Sabrina, in 1997.
In February, federal prosecutors dropped the charges and last month agreed the case against the couple had been brought in bad faith. They agreed to pay the couple's legal fees and expenses, but contested the $3.75-million total Cohen demanded.
In a written response to prosecutors filed Thursday, Cohen said he and his colleagues deserve the entire amount. He also wants a judge to order the entire investigative file be turned over to the court or to Cohen, and to compel the investigators and prosecutors in the case to submit to depositions.
"The prosecutors should not be allowed to admit they were wrong and then pay some money and brush the whole thing under the carpet," Cohen said. "We need to know the truth."
U.S. District Judge Steven Merryday could take several months to make a decision.
Investigators suspected the Aisenbergs soon after Sabrina was reported missing Nov. 24, 1997. Authorities bugged their home, and a grand jury indicted them in 1999 on charges of conspiracy and making false statements.
The charges were dropped in February after a federal judge recommended some of the tapes be suppressed. The judge said the detectives had acted recklessly in getting permission to bug the home and that the tapes he reviewed did not contain the incriminating statements that the detectives said they contained.
The Aisenbergs filed a 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."
In the initial motion, Cohen and his law partner, Todd Foster, asked for $1.67-million in fees for the legal team. The motion also asked for costs that included legal research, travel, telephone bills and fees for expert witnesses.
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. The motion argued that those requirements were met and the amount should be doubled.
The government stated in July that the hourly fees were too high and that the case didn't meet any of the requirements to increase the award.