St. Petersburg Times: Special Report

Missing Sabrina

  • Part One
  • Part Two
  • Part Three
  • Epilogue

  • [Times photo: Jamie Francis]
    Two years ago, Marlene and Steve Aisenberg moved to Bethesda, Md., to the home Steve grew up in. This is Steve’s old room, which the Aisenbergs have waiting for the daughter they pray will come home.

    Sabrina as a newborn. The photograph is displayed on a dresser in her room in Maryland.

    [Times photo: Tony Lopez Feb. 11, 1998]
    Commanded to appear before the grand jury investigating the disappearance of their daughter, Steve and Marlene Aisenberg arrive at the federal courthouse with their attorney, Barry Cohen.
    [Times photo: Jamie Francis]
    The Aisenbergs like raising Monica and William in the old neighborhood in Bethesda, because the homes have spacious yards and lots of shade -- and because they draw much less attention there than in Florida. Marlene worries about William, who turns 12 Friday: “He has a lot of fear in him. He’s seen a lot of things that a young child shouldn’t have to see.”
    [Times files Sept. 9,1999]
    Having posted bail, Steve and Marlene Aisenberg leave the courthouse in Greenbelt, Md. They had just been indicted, they had just learned their home had been bugged, and a prosecutor had just told the world they had Steve on tape saying, “I wish I hadn’t harmed her. It was the cocaine.”
    [Sheriff’s Office evidence photo]
    Sabrina’s crib, the morning she vanished. The shoeprint that defense attorney Barry Cohen touted as evidence of an intruder was on the dust ruffle, behind the crib rail.
    [Times photo: Thomas M. Goethe Sept. 9, 1999]
    The indictment news conference brought out multiple agency heads. Behind prosecutor Stephen Kunz are U.S. Attorney Charles R. Wilson at the podium, FDLE Regional Director Jim Sewell and, obscured, Hillsborough Sheriff Cal Henderson.
    [Times photo: Fraser Hale]
    Behind Barry Cohen labor (emphasis on labor) a team of attorneys. At the table are, Stephen Romine, left, and Todd Foster. Behind them, from left, Michael Gold, Harry Cohen and investigator Kevin Kalwary.

    U.S. District Judge Steven D. Merryday called 32 tapes “largely inaudible.”

    [Times photo: Jamie Francis]
    Monica, who turned 8 last month, is an inquisitive girl but was too young to understand what happened to her sister. Marlene won’t let her walk by herself to her friend’s house, a few blocks away.
    [Times photo: Jamie Francis]
    The classic family photo: Who could imagine the down and ups of the past 3 1/2 years?

    Previous coverage
    The story so far, from the pages of the St. Petersburg Times

    Missing Sabrina

    printer version

    Undone

    The government announced to the world that it had caught them on tape, saying things like, "The baby's dead and buried! It was found dead because you did it!" How could anyone read that and think they could be innocent?

    By GRAHAM BRINK and SYDNEY P. FREEDBERG

    © St. Petersburg Times,
    published September 11, 2001


    The two men who would battle over the fate of Steve and Marlene Aisenberg are well-known legal cowboys: Assistant U.S. Attorney Stephen Kunz and defense attorney Barry Cohen.

    To Cohen, Kunz was a renegade prosecutor who counted courtroom victories like notches on his gun belt. To Kunz, Cohen was a publicity-hungry lawyer who used smoke-and-mirror tactics to keep guilty people out of prison.

    In the 1980s, defending Hillsborough State Attorney E.J. Salcines in a case-fixing investigation, Cohen waged war with U.S. Attorney Robert W. Merkle. He took out a full-page newspaper ad, titled "Merkle's McCarthyism mentality is a threat to innocent people," and called the grand jury a witch hunt. Salcines was never charged. At the next opportunity, voters removed the 16-year state attorney from office.

    Kunz, the publicly taciturn deputy chief of the criminal division, had been praised for convicting notorious motorcycle gang members and corrupt politicians. It was Kunz who helped secure a guilty plea from the Rev. Henry Lyons for federal fraud and tax evasion.

    His zealousness had gotten him public scoldings.

    In 1986, Florida's 5th District Court of Appeal lashed out at then-Assistant State Attorney Kunz and his boss for bringing a "fatuous," politically motivated indictment against a Volusia County judge. Tossing the charges, the appeals court borrowed a quote from the late U.S. Supreme Court Chief Justice Warren Burger. Giving Kunz a grand jury, they said, is "a bit like giving a small boy a loaded pistol without instruction."

    In 1992, on the eve of a Jacksonville developer's trial, Kunz's office issued a news release outlining guilty pleas of his co-defendants. U.S. District Judge John H. Moore II was so unimpressed that he threatened to have Kunz and another prosecutor taken away in handcuffs.

    Now, 21/2 months after Sabrina Aisenberg disappeared, the two hard-charging lawyers squared off.

    Kunz had the advantage. Cohen was fending off a flurry of bad press; a state child abuse agency was investigating whether to take away the Aisenbergs' two older children; and Marlene and Steve had been served with subpoenas compelling them to come before the grand jury.

    There was no way that Cohen, a self-professed conspiracy theorist, would let a prosecutor, let alone Stephen Kunz, interrogate Steve and Marlene behind closed doors.

    On Feb. 10, 1998, Cohen informed U.S. Attorney Charles R. Wilson that the Aisenbergs would invoke their Fifth Amendment rights and refuse to testify before the grand jury. In his four-page letter, Cohen blasted the Sheriff's Office for leaking to the media that the parents had been subpoenaed.

    Cohen, intentionally or not, had confirmed the leak himself. Instead of a simple no comment, Cohen told reporters: "I'm not going to comment on when we received the subpoena."

    Cohen told a federal judge that Marlene and Steve wouldn't testify and asked him to order the government to withdraw its subpoenas. Prosecutors responded that a grand jury investigating the disappearance of a baby has a legal duty to chase every clue and call every witness, especially the parents. The judge sided with the prosecutors.

    The next day, Cohen led Steve and Marlene past the media pack into Tampa's old federal courthouse. To help the Aisenbergs avoid reporters, the government had offered to have U.S. marshals meet them at a remote location and bring them into the courthouse through a back entrance. Cohen rejected the offer. He says he was afraid prosecutors would leak the plan, and reporters would make it look like his clients were slinking in the back way.

    The defense team had given Marlene and Steve identical typewritten statements: "I respectfully refuse to answer the question because the answer may tend to incriminate me." Cohen instructed them to read that answer to every question.

    Cohen and Steve waited outside when Marlene entered the grand jury room. Wearing a button with Sabrina's picture on it, she took her seat in the witness box and ventured a smile at Kunz and the grand jurors. She was petrified.

    Kunz began with softball questions. What were her children's names? Was she married to Steve? Did she have a dog named Brownie who barked at strangers?

    Marlene read her typewritten statement, again and again.

    Did William or Monica ever play rough with Sabrina? Did the baby have a medical condition that made her sleep excessively? Did Marlene ever see Steve mistreat the kids? Didn't the video show injuries on Sabrina's face and head?

    Marlene knew her silence looked terrible, but she stuck to her script.

    Then Kunz hit her with:

    "Mrs. Aisenberg, are you aware of any violent behavior conducted by your husband after he resigned from a job in Virginia following an allegation of a sexual assault that he was involved in?"

    Eight years earlier, when Marlene was pregnant with William, Steve was a manager at Britches Great Outdoors in Richmond, Va. He was forced to resign after it came out that he had oral sex with a teenage cashier.

    The embarrassing episode wasn't related to Sabrina's disappearance, but Kunz's question hinted darkly that Steve was some sort of sexual predator.

    After 15 minutes of taking the Fifth, Marlene was excused. It was Steve's turn.

    Kunz zeroed in on the events before, during and after the 911 call. Who first discovered Sabrina missing? What did he see? What did he do? Who took her?

    In his monotone, Steve took the Fifth, again and again and again.

    In just a half-hour, with Kunz doing most of the talking, he had painted a picture of a couple with something to hide. As a bonus, he had injected the idea that Steve was a sex offender with a shady past.

    * * *

    Nineteen days later, the Sheriff's Office completed its secret bugging operation. More than 2,600 conversations had been taped over 79 days. The summary logs of recordings revealed how intrusive the eavesdropping had been: The bugs caught the Aisenbergs talking about everything from their sex lives to financial pressures. They were heard exchanging I-love-yous.

    Kunz and his co-counsel, Rachelle DesVaux Bedke, continued to pursue the child abuse angle. They investigated Sabrina's earaches and whether the Aisenbergs sexually abused 4-year-old Monica. The theory sprang from Monica's history of urinary tract infections, vaginal discharge and blood in her urine, and the time she dropped her pants in front of the child abuse investigators.

    But Monica's two doctors had reported no signs of abuse, and a specialist the Aisenbergs took Monica to see said that too little fiber and too many caffeinated drinks likely caused the infections. Also, Dr. Jay Whitworth, a pediatrician who reviewed the case for the Department of Children and Families, said many girls Monica's age take off their clothes in public. The doctor found "no credible reason" to suspect sexual abuse.

    Maj. Gary Terry's task force investigated hospital workers and pedophiles, checked on reported Sabrina sightings from Alaska to London and chased tips from psychics who envisioned Sabrina in water.

    Terry pleaded with Cohen to help him get to the bottom of what happened. He said the two people who had the most to offer the grand jury were the Aisenbergs.

    "You have constantly complained that we are trying to manufacture a case," the major wrote to Cohen. "Why would you not welcome the opportunity to allow your clients to speak to an impartial panel of their peers?"

    * * *

    March 1999.

    The Aisenbergs could not go to the grocery store without being recognized, and Monica and William were teased at school. Weary of the attention, they moved to Bethesda, Md., to the brick house that Steve's father still owned. It was the house Steve grew up in.

    They dedicated Steve's old room to Sabrina and decorated it with a row of 2-foot teddy bears; they put in a rocking chair with her name in pink.

    Investigators still had not informed them their home in Florida had been bugged. Under state law, they were supposed to tell the Aisenbergs about the surveillance within 90 days of removing the bugs.

    On June 1, 1998, detectives had asked Judge F. Dennis Alvarez for a 90-day extension to get their case in order. Then they came back for another 90 days. Then they came back and got 90 days more. Then they came back and got 90 days more. Then they came back and got 90 days more.

    Alvarez got to wondering what was taking so long. On Aug. 18, 1999, he granted another 90 days. That's the last extension, he said. No more.

    * * *

    Thursday, Sept. 9, 1999

    Marlene was packing for a long-weekend trip to visit her brother in Boston. It was the day before Rosh Hashana, the Jewish new year. The children were at school.

    The FBI knocked on the door, but Marlene didn't answer. The agents dialed the house but couldn't get through. Marlene was on the phone with Cohen's receptionist, asking what she should do.

    After five minutes, an agent battered down the door. Marlene says another agent pointed a gun at her head and ordered her to put down the phone.

    The baby is dead, the agents told her, not kidnapped. They said she no longer had to lie; her arrest gave her a fresh opportunity to tell the truth.

    I have always told the truth, she said.

    Two agents handcuffed Steve at the home sales center where he worked. He wouldn't answer questions.

    Back in Tampa, U.S. Attorney Wilson called a news conference to announce the seven-count indictment. It said the Aisenbergs lied when they reported Sabrina kidnapped, misrepresenting everything from the timing of events that morning to the clothes Marlene wore.

    Prosecutors said Steve could get up to 25 years in prison and a $1.25-million fine; Marlene, 30 years and a $1.5-million fine.

    The 27-page indictment was unusually detailed, built on the secret tapes and the Aisenbergs' conflicting statements to the detectives. It alleged a coverup, apparently of a homicide.

    Prosecutors didn't have a murder case; they still didn't know what had happened to Sabrina. They built the indictment around making false statements, a federal charge more typical in white-collar cases.

    The indictment also charged the Aisenbergs with conspiring to cover up what really happened to Sabrina, and listed 59 things they had done. Among them, it said the couple gave law officers false leads and wouldn't provide urgently needed names of people who might know what had happened to Sabrina.

    The indictment marked the coming out of the tapes; the Aisenbergs and their lawyer say they found out about them the same day as the rest of the world.

    The government did not play the tapes, but quoted 24 statements in the indictment. As quoted, the Aisenbergs were guilty, plain as day. How much more damning could it be than Marlene saying, "The baby's dead and buried! It was found dead because you did it!"

    * * *

    The afternoon they were indicted, the Aisenbergs were brought before a judge in Maryland. Assistant U.S. Attorney DesVaux Bedke told him they had Steve on tape admitting he used cocaine.

    She quoted him: "I wish I hadn't harmed her. It was the cocaine."

    As a condition of bail, the judge ordered urine tests for the couple.

    Steve said he had never used cocaine. The test immediately after his arrest was negative.

    The accusation, repeated over and over in the media, was poison for the Aisenbergs. People figured that Steve, coked up, went berserk and killed Sabrina. Or he sold her, out of financial desperation, to feed his drug habit.

    Cohen cautioned the public not to judge Steve and Marlene, because the statements could be out of context. It was hard to imagine how context could make something innocent of Steve saying:

    "Honey, there was nothing I could do about it. We need to discuss the way that we can beat the charge."

    Or Marlene saying:

    "Oh, Steve! I tried to save her, she died and ah, we can't confuse them, but we'll try it Hon, you know."

    Cohen hired a consultant to test public opinion. Focus groups showed that almost everyone thought the Aisenbergs were guilty of something.

    * * *

    Marlene and Steve had paid Cohen about $35,000. Now they agreed to pay a flat fee of $1-million each for his Rolls-Royce defense. Steve's father, Irwin Aisenberg, was to come up with $200,000 of it by mortgaging his home.

    Cohen's troops huddled in his office, a half-dozen lawyers and an investigator, mapping strategy and picking apart the prosecution's case.

    They suspected that prosecutors brought the indictment hoping that one of the Aisenbergs would take a deal to testify against the other. The couple told their lawyers they were sticking together.

    On Feb. 17, 2000, the defense team wheeled a dolly loaded with motions and accompanying exhibits into the clerk's office. One accused the law officers of a "Rush to Indict," a spinoff from Mark Lane's 1966 Rush to Judgment, the first major conspiracy book about the assassination of President John F. Kennedy.

    To support his frame-up theory, Cohen railed about how the government had manufactured evidence and deliberately concealed signs of an intruder. He showcased a left print from a man's lugged-sole shoe on the dust ruffle of Sabrina's crib as "extraordinarily strong evidence that an intruder was inside the Aisenberg home on the night of the disappearance."

    Dateline NBC reported it this way:

    "From the beginning, investigators had said there was no evidence of an intruder. But then, six months after the indictment, buried in the government's court filings, the Aisenbergs' defense attorneys said they'd discovered a smoking gun: an FBI analysis of a boot print, found on Sabrina's bedding. It didn't match any boots owned by the Aisenbergs."

    As further evidence of an intruder, Cohen cited a blond hair that he said was found on Sabrina's crib sheet, a hair that could not have come from anyone in the Aisenberg family.

    But the blond hair, as Cohen himself acknowledged later, was actually found on a stuffed yellow bunny in the Aisenbergs' garage. There was a hair found on the crib sheet, but it was dark-colored, and probably came from Sabrina.

    As for the "smoking gun" shoe print, it was difficult, if not impossible, to see how it could have come from an intruder. The ruffle was 12 inches off the ground and behind the crib rail.

    In motions dripping sarcasm and disdain, the prosecutors said Cohen was manipulating and hyping. They said he should be punished for trying his case in the media.

    Two federal judges bawled out both sides for their histrionics. And the real fireworks hadn't even begun.

    * * *

    Overstatements in places in the indictment became ammunition for the defense's argument that the charges were trumped up.

    One count of making false statements accused the couple of lying when they told deputies that after Marlene discovered Sabrina missing, she was so upset she urinated on the kitchen floor and slipped on the wet spots.

    Suggesting that Steve and Marlene covered up something the night before Sabrina was reported missing, the indictment said the Aisenbergs refused to let a neighbor see her. The "neighbor," it turned out, was a playmate of Monica's who came over while Sabrina was sleeping.

    The detectives knew Sabrina had ear infections and had found what they presumed was blood on her crib linen. They thought she had missed two doctor appointments in the month before she went missing. From that, the indictment said Sabrina suffered from perforated ear drums.

    Her medical records mention nothing about perforations.

    Whatever dents the defense could make in the indictment, it was clear the case would be won or lost on the tapes.

    Cohen's team mounted an all-out assault. It went like this:

    The truly damning statements cannot be heard at all.

    Other conversations are too muddled or untrustworthy to be understood.

    The ones that can be heard are taken out of context.

    Or they are irrelevant.

    Or they were obtained illegally.

    Or they violate attorney-client privilege.

    Or they violate the privacy privilege between husband and wife.

    Some tapes were clear. Some had muffled voices. Some sounded like chickens squawking with a hurricane raging in the background. Hisses and hums accompanied ringing phones and televisions.

    Distortion and interference mar the tape where prosecutors heard Steve wishing he hadn't "harmed her" and blaming cocaine. The monitor listening at that point wrote comments in his log about "salad" and "that video." He made no mention of harm or cocaine. Aisenberg attorney Harry Cohen (no relation to Barry) heard something about cleaning the dining room table and eating salad.

    On another tape, the government quoted Marlene saying, "You said to fake it." The defense heard, "You spoke to David." (Steve's brother).

    The government wrote, "What if they check the shed?" The defense had it, "What if you think they said?"

    The government quoted Steve saying he had fed daughter Monica "a block of Drano." Harry Cohen heard a conversation, recorded in December, about a "chocolate dreidel" -- candy shaped like a toy that Jewish kids play with at Hanukkah.

    According to the government's version, after Steve made the Drano comment, 8-year-old William said: "Dad, you aren't worried about Monica ingesting this . . . like . . . like sister Sabrina did? When she ate all that. Do you?"

    Cohen hired Bruce E. Koenig, a former FBI supervisory agent, to review the most hard-to-hear tapes. In affidavits filed in court, Koenig said he reviewed 13 of the government's most incriminating statements and couldn't hear a single one.

    For quotes that could be heard, Cohen's team argued there were innocent explanations for every one -- including Steve's "rehearsal" of a radio interview. Here's what happened:

    WFLA-970 host Jack Harris called Steve to interview him live, on his morning show. The bugs picked up Steve's side of the conversation, but not Harris', because the host was not in the house. The interview done, Steve hung up.

    The phone rang again. It was Kevin Kalwary, Cohen's investigator, calling to chastise Steve for giving an interview without getting permission from his lawyer.

    Steve played Kalwary the tape he had made of the just-completed radio interview. Because the tape was played inside the home, the bugs now picked up Harris' side of the interview. Detectives thought they were listening to the live interview, and presumed that the earlier version had been Steve rehearsing his answers.

    Into the indictment it went, included as part of Steve and Marlene's conspiracy to fool everybody with their phony kidnapping story.

    The government's own transcript of the "rehearsal" reveals the mistake. It matches a tape of the interview that was broadcast, word for word, down to Steve's "ahs" and "ums." The transcript even includes a line that says, "Dialogue is exact copy of earlier recorded statement."

    What was not made public was what the bugs picked up Steve saying after he hung up with Kalwary. He tried to explain to Marlene why Kalwary had been so angry with him for giving the interview.

    "I don't know," Steve says on the tape. "I don't understand how, all I'm trying to do is get my daughter back."

    * * *

    The tapes were still under wraps. Only the government and the defense had access to them. The public could only wonder if Cohen really had anything or if he was just blowing smoke.

    That's what made it such a turning point when he urged U.S. District Judge Steven D. Merryday to listen to the tapes himself -- and the government objected. Prosecutors said that like any case, it should be left to the fact-finders, the jury, to decide what could or could not be heard on the tapes.

    Kunz and DesVaux Bedke said Cohen's defense made for great theater, but virtually none of it was true. They blasted the audio expert's report as bought by the defense (Koenig was paid roughly $60,000). The prosecutors even trashed their own audio expert from the FBI crime lab, after he didn't do much to improve the poor sound quality.

    "It now appears, however, that the FBI laboratory analyst who had examined some of the recordings either did not have the time, equipment, experience or training -- or simply did not take the time and/or expend enough effort -- necessary to properly enhance each part of each recording," they said in one motion.

    Kunz and DesVaux Bedke declared they were opposed to testimony from any tape expert. When it became clear the case could hinge on expert testimony, they paid $350 an hour for one of their own: Anthony J. Pellicano Jr.

    Cohen's team did a quick background check and discovered, among other things, that Pellicano was a high school dropout and private investigator for Hollywood stars.

    He had a nickname, courtesy of GQ magazine, that a defense attorney could love: "The Big Sleazy."

    In news stories, Cohen put his FBI audio guy against the prosecutors' "Big Sleazy," trumping the government again on the PR front.

    Cohen got what he wanted: Judge Merryday said he would listen, in private, to 32 tapes the prosecutors wanted to use at trial that the defense said were impossible to hear or understand.

    On Thursday, Nov. 9, 2000, Merryday pronounced the 32 tapes "largely inaudible."

    "The recordings contain background and foreground interference, other random noises and prominent distortions, which together materially obscure large portions of most or all of these recordings," Merryday wrote. He said he needed to conduct a hearing to determine, tape by tape, which ones were reliable enough to present to a jury.

    It was a bolt from the heavens. The judge had not listened to every tape in the case, nor had he commented specifically on each one he had reviewed. But now Cohen had someone from outside the defense team who agreed that the tapes were a mess. Not just anyone, but a federal judge.

    The case shifted to the courtroom of U.S. Magistrate Judge Mark Pizzo, who had another issue to consider: When sheriff's detectives got Judge F. Dennis Alvarez to give them permission to bug the Aisenberg home, did they deliberately mislead him? Did they act in bad faith?

    On Monday Dec. 11, 2000, Pizzo took the bench. The case hung in the balance.

    * * *

    The hearing was one giant black eye for the government. Todd Foster and Steve Romine, attorneys with Cohen's law firm, dissected everything the investigators did, big or small, to show that they distorted and omitted facts to fit their theory that the parents were guilty. They caught the investigators equivocating and contradicting themselves under oath.

    Prosecutors had told the judges that the bugging conformed with state and federal laws.

    It did not.

    The law allows bugging a home to gather evidence only in certain serious crimes, including homicide. The Aisenberg bugging applications said detectives were searching for evidence of a homicide, but also, sale of a child, aggravated child abuse and neglect -- three crimes that are not on the list.

    Sgt. Don Roman, a 25-year Sheriff's Office veteran who wrote the application for the second bugging extension, admitted he spotted the problem -- but said nothing.

    Defense attorney Romine crushed the credibility of the prosecution's star witness, Detective Linda Burton. On and off over the course of a week, Romine interrogated Burton about every one of her inconsistencies.

    Questioning the detective about how she overstated a doctor's tentative finding of abuse, Romine asked the 16-year veteran if she could explain the difference between suspicion and conclusion. She did not have a simple answer.

    She said: "To me, if they believed -- if they tell me what they see is there, then I think that's a suspicion because that's what they believe is there. And their conclusion is that is what it is."

    It got so bad that Burton mouthed, "I'm sorry," to Kunz and DesVaux Bedke at the prosecution table.

    On Feb. 14, 2001, Pizzo issued a blistering, 63-page opinion. He said four of 12 tapes he reviewed were unintelligible. On the others, he said, detectives recklessly took statements out of context or distorted the meaning.

    Because detectives showed a "reckless disregard" for the truth, Pizzo said the entire bugging operation was illegal. He recommended that Judge Merryday throw out all the tapes.

    A week later, without fanfare, the U.S. Attorney's Office filed a two-paragraph request asking that the charges be dropped.

    "Although the United States does not agree with certain aspects of the ruling of the court concerning its recommendation to suppress the evidence," the request stated, "in light of the court's ruling, there is no longer a reasonable probability of conviction against the defendants."

    As of 1:07 p.m., Wednesday, Feb. 21, 2001, more than three years and three months after Sabrina disappeared, her parents were officially off the hook.

    * * *

    Cohen was in soapbox nirvana. He blasted the prosecutors for scurrying away like roaches after dropping the case, in stark contrast to the bright lights of the news conference they held to announce the indictment. He slammed everyone from Linda Burton to Sheriff Cal Henderson for making up evidence, for never really caring about finding Sabrina.

    He called them all liars. He said some of them belonged in prison.

    In March, Cohen filed a motion accusing a "cabal" of overzealous law officers in a diabolical scheme to frame two innocent people from the start. Cohen accused DesVaux Bedke of putting career ambition ahead of justice, and his descriptions of Kunz conjured an image of the Antichrist of federal prosecutors. The language was vintage Cohen, all rancor and righteousness.

    "When procedures designed to protect basic rights guaranteed to citizens are undermined and disregarded by those we entrust to carry out this sacred duty," Cohen wrote, "we must ask what makes this great nation different than the worst of the Third World countries where prisoners are locked in inhumane conditions and executed without due process."

    He cited 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."

    Cohen said $4-million would cover it.

    Throughout the case, whenever one side fired, the other side almost always came back with guns blazing. This time, the government caved.

    The U.S. Attorney's Office did not concede any bad faith, but in light of Judge Pizzo's ruling, they said not contesting Cohen's request was in the best interest of justice. The only question left is how much Cohen should be paid.

    Judge Merryday has not ruled. Taxpayers will get the bill.

    * * *

    With the tapes and other evidence still sealed by court order, the public is left to make sense of the case with less than all the facts. A lot of questions have no clear answers.

    The government had said all along that it had dozens of incriminating statements on tape, statements that were excerpted on the front pages of newspapers the day after Marlene and Steve Aisenberg were taken away in handcuffs.

    If prosecutors had even one truly incriminating statement on tape, why did they give up?

    Why not bring that one statement into court, cue it up and play it? A bad-faith prosecution? Not hardly, not if you have parents on tape admitting they harmed their child. One tape would have gone a long way toward getting the government off a $4-million hook. But they rolled. Why?

    The government says there are incriminating statements on the tapes, and that several people have heard them. Cohen did a masterful job of leaving the impression that all the tapes were garbage, though a judge has never ruled on most of them.

    Merryday ruled on 32 of them, collectively, when he called the tapes "largely inaudible." He said he needed to conduct a hearing to rule on each one, but he never did because the government asked him to dismiss the case. Pizzo ruled specifically on only 12 tapes.

    In his order, Pizzo made devastating findings. He said investigators deliberately distorted evidence, intentionally made "baseless" deductions and recklessly omitted facts that could have helped the Aisenbergs prove their innocence.

    The government says that is why, in the end, they threw in the towel. Not because there was nothing on the tapes, but because mistakes plagued the investigation. The government's credibility had been fatally compromised. Knowing they could never get a conviction, prosecutors had no choice but to walk away.

    To the defense, the government's insistence that the Aisenbergs are guilty in the face of all that has come out is the height of arrogance. This is not merely a case of law enforcement missteps, this is a venal, organized conspiracy to frame innocent people from the start.

    On the other hand, why would more than a dozen law officers from the Sheriff's Office, the Hillsborough State Attorney's Office, the FBI and the U.S. Attorney's Office conspire to frame the Aisenbergs almost from the moment Sabrina disappeared? Why risk professional ruin, or even prison?

    The defense pushed for disclosure of the tapes, the government for non-disclosure. Should anything be drawn from that?

    Why would innocent people hire a lawyer and keep the police at arm's length? Or is this a classic example of precisely why even an innocent person needs a lawyer?

    Steve and Marlene Aisenberg won in court. But Steve well knows that people still wonder about them, that people will always wonder about them, unless their dream comes true and they get Sabrina back.

    "We cannot make people believe," he said. "They'll believe what they want to believe."

    About this story

    Reporters Graham Brink and Sydney P. Freedberg reviewed thousands of pages of sheriff's and court records, including many previously unreleased police reports and state child abuse records.

    They interviewed the Aisenbergs for more than six hours, and sought comment from virtually everybody else involved in the case. Many of those working on the case for the law enforcement agencies spoke only in generalities, saying ongoing investigations and the continuing court battle over legal fees forbid them from talking about the case.

    Researchers Kitty Bennett, John Martin and Barbara Oliver contributed. The series was designed by Amy Hollyfield. It was edited by Richard Bockman.

    Missing Sabrina

    © Copyright 2001 St. Petersburg Times. All rights reserved.