Prosecutors say they may call Barry Cohen to testify in the trial stemming from baby Sabrina's disappearance.
By JEFF TESTERMAN
© St. Petersburg Times, published October 9, 1999
TAMPA -- The U.S. government says defense attorney Barry Cohen should be disqualified from representing Steve and Marlene Aisenberg because he may become a witness in their trial.
In court papers filed Friday, federal prosecutor Steven M. Kunz says the joint representation of the Aisenbergs by Cohen, coupled with the fact that Cohen may himself take the witness stand, raises "a serious potential" for a conflict of interest.
"With separate counsel, each defendant, at trial, could choose to explain his or her conduct to the detriment of the other defendant, blame the co-defendant for many of the allegations, or otherwise mitigate their conduct at the expense of the co-defendant," Kunz says. "With the same counsel, that will not happen."
Because of the conflict, the prosecutor argues that Cohen and law partner Todd Foster should be "disqualified" from representing the Aisenbergs and that the couple should be directed to obtain separate counsel.
A federal grand jury indicted the Aisenbergs Sept. 9 on charges of making false statements concerning the disappearance of their 5-month-old daughter, Sabrina. The child has not been seen since the couple reported Sabrina missing in November 1997.
The indictments stem from personal conversations between Steve and Marlene Aisenberg caught by federal agents using listening devices planted inside the couple's Brandon home.
The transcript of one conversation shows Marlene telling her husband, "The baby's dead and buried! It was found dead because you did it!" Another transcript has Steve telling Marlene, "We need to discuss the way we can beat the charge."
Wednesday, the Aisenbergs pleaded innocent to the charges. The couple stood firm in their decision to be represented jointly by Cohen's firm, even as a federal magistrate advised them they would best be served by seeking separate counsel.
Kunz says the the potential for a conflict worsens because Cohen was retained by the Aisenbergs within two days of Sabrina's disappearance, was increasingly involved in the couple's interaction with investigators and thus could end up being a witness in the case.
The prosecutor says Cohen became "a transactional attorney" who involved himself in the making of statements to law enforcement authorities for the Aisenbergs that included "the production of false leads" into Sabrina's whereabouts and the concealment of material facts concerning the baby's disappearance.
At the same time, Kunz strongly emphasizes that the government is not suggesting that Cohen was part of any conspiracy "or involved in any criminal activity" regarding the charges against the Aisenbergs.
The government papers say Cohen's representation also could be problematic because much of the money from the "Baby Sabrina Account" -- established to solicit donations to try to locate the missing child -- actually went to pay Cohen's legal fees.
Previously, prosecutors had charged that the Aisenbergs used money from the account to pay off two personal credit cards. Now, they add that "evidence at trial" will establish that the majority of the funds collected went to Cohen.
Cohen said Friday night that he could not comment specifically on the government's latest arguments.
"I will respond to these allegations in the appropriate forum, which is in the U.S. District Court," Cohen said.
The issue of the Aisenbergs' representation will be considered at a hearing in federal court scheduled for Oct. 15.