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Advice on separate counsel unheeded

A judge strongly advises the Aisenbergs, accused of lying about their baby's disappearance, to get their own attorneys.


© St. Petersburg Times, published October 7, 1999

TAMPA -- A federal judge gave some pointed advice Wednesday to Steve and Marlene Aisenberg: Get separate lawyers.

Such a move, the judge said, could save them from possible conflicts caused by a single law firm balancing their competing interests.

"I strongly encourage you to get separate counsel," U.S. Magistrate Mark Pizzo told the couple. "I think I'm required to do that under the rule and certainly under the Supreme Court precedent . . . There are pitfalls and dangers in being represented by joint counsel."

But as of Wednesday, the Aisenbergs were sticking with one law firm.

The couple made their first court appearance in Tampa since their indictment last month on federal charges that they lied about the disappearance of their 5-month-old daughter, Sabrina, in 1997.

As expected, their lead lawyer, Barry Cohen, entered innocent pleas on their behalf. In court, the couple said nothing more than good morning.

Cohen told the judge he had taken steps to calm any concerns about representing both Aisenbergs. Both of them had spoken to former defense attorneys and former federal prosecutors, Cohen said, and they were comfortable with one law firm.

If prosecutors offer a plea deal to one of the Aisenbergs, Cohen said, a separate lawyer will be called in to evaluate it and provide advice.

"As I think Justice Frankfurter said," Cohen said, " " . . . a common defense is often in the best interests of clients.' "

The judge was not convinced.

"I, frankly, think that these issues, to use Justice Rehnquist's words, as opposed to Justice Frankfurter, "are murky.' "

Defense lawyers interviewed by the Times suggest that federal prosecutors are trying to force Marlene Aisenberg to testify against her husband. But an attorney wouldn't be allowed to advise Marlene Aisenberg in plea negotiations if he was also representing Steven Aisenberg.

The issue is headed for a showdown, because the Aisenbergs repeated their interest Wednesday in continuing to be represented by the Cohen Jayson & Foster firm. The judge set a hearing for Oct. 15.

In court Wednesday, a federal prosecutor told the judge that the indictment reveals the potential for a conflict.

It quotes Marlene Aisenberg as saying to her husband, "The baby's dead and buried! It was found dead because you did it! The baby's dead no matter what you say -- you just did it!"

The indictment quotes Steven Aisenberg replying: "We need to discuss the way that we can beat the charge. I would never break from the family pact and our story even if the police were to hold me down. We will do what we have to do."

That conversation, the indictment alleges, took place one month after the Aisenbergs reported, on Nov. 24, 1997, that Sabrina had been kidnapped from their former residence in Brandon. It was recorded on secret listening devices that investigators placed in the Aisenberg home.

The widespread interest in the Aisenbergs' case was hard to miss at the Sam M. Gibbons U.S. Courthouse on Wednesday morning. Thirty journalists and camera operators met the couple as their entourage descended from a green Ford van owned by Cohen.

The Aisenbergs were as somberly dressed as their lawyers, with Steven in a dark suit and Marlene in a dark dress, with a new haircut. Their expressions were impassive as Cohen and fellow attorney Todd Foster guided them into the courthouse.

In a separate development, WTVT-Ch. 13 anchor Kelly Ring and reporter Warren Elly received letters Wednesday from state prosecutors indicating that their interviews and conversations with the Aisenbergs had been picked up on electronic surveillance. WTVT news director Phil Metlin said the station is talking with its lawyers to review its journalistic privilege in the case.

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