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Trampling on rights in their search for truth

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By HOWARD TROXLER

© St. Petersburg Times, published October 15, 1999


Wherever the missing baby Sabrina Aisenberg may be, alive or dead, she cries out for truth.

Truth is sacred. But we are not allowed to trample other sacred things to attain it.

Today, in a federal court in Tampa, the U.S. government will play hardball to get at Sabrina's parents, Steven and Marlene Aisenberg. The attempt borders on playing dirty.

The Aisenbergs are charged with making false statements about Sabrina's disappearance. They are not charged with murder. But the feds are trying to put pressure on one of them to crack.

The U.S. Attorney's Office will try to get a judge to strip the Aisenbergs of the lawyer who has represented them both from the beginning, Barry Cohen.

Cohen is one of the highest-profile lawyers around. He has the guts of a street fighter. His style is confrontational, no-holds-barred, all-out-war.

The prosecutors say there are two reasons Cohen should be removed from the case. The first reason is at least debatable -- that he cannot represent both of the Aisenbergs' interests fairly.

The second reason given by the feds, unless they come up with something better to back it up, is transparent and ridiculous.

They claim Cohen is too involved. He might become a witness. He got paid from the Aisenbergs' public donations. He was involved in their early dealings with investigators, before they were charged.

Well, of course he was involved. He was their lawyer. That is what lawyers do. It might be different if they had Cohen on tape telling his clients, "I now will assist you in providing false leads." But they do not. In fact, they go out of their way to say they are not accusing Cohen of wrongdoing.

The reality is, the prosecutors want to get rid of a strong lawyer who gets in their face. They want to deny the Aisenbergs the defender and defense of their choice and split them up.

I thought Bob Merkle would be a good person to ask about this. Merkle is our former U.S. attorney, now in private practice in Pinellas County. As a prosecutor, he was fearless and ferocious, and he did battle with Cohen, whom he considers to be a good lawyer.

Merkle told me he did not know the facts of the Aisenberg case and would speak only in general. The law clearly gives defendants the right to choose the same lawyer, he said. They have to waive their right to separate lawyers, and they have to show that they know what they are doing.

A judge still can order separate lawyers if the conflict is hopelessly deep, Merkle explained. However, he said that sometimes the government has tried to get rid of a defense lawyer "frankly, because the lawyer was good."

As for trying to remove a lawyer just for representing clients during an investigation, Merkle said prosecutors can be on dangerous ground. "I don't think the government has any business in seeking to recuse a lawyer on the basis of those kinds of facts," he said.

The legal precedent is United States v. Garcia, decided in 1975. While defendants have a right to separate lawyers, they cannot be forced into it as long as they "knowingly, intelligently and voluntarily" waive their right.

The Aisenbergs have shown every indication that their decision has been made knowingly, intelligently and voluntarily. They have decided to sink or swim together.

It would be convenient and easier for prosecutors if they could dictate defense strategy and personnel. But then, it would be convenient and easier for prosecutors if we didn't have judges and juries either.

The indictment makes things look bad for the Aisenbergs. I admit that my prejudice (before hearing any of the defense) is that something terrible and despicable has occurred. I deny that this gives us the right to form a posse, burn down the jail and hang them.

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