Prosecutors hope to force the couple to get separate attorneys and maybe open the way for one spouse to turn on the other.
By SARAH SCHWEITZER
© St. Petersburg Times, published October 15, 1999
TAMPA -- The battle to turn Marlene Aisenberg against Steven Aisenberg begins this morning in a federal courtroom.
Government lawyers will try to convince a judge that the couple's longtime and trusted attorney, Barry Cohen, should no longer be allowed to represent them.
The move is a barely disguised effort to lay the groundwork for dividing the couple, who have denied wrongdoing since the beginning of the highly unusual and emotional saga of their daughter's disappearance in November 1997.
Together, they have refused to answer investigators' questions. Together, they have appeared on national television to talk about the stranger they say crept into their home and stole 5-month-old Sabrina, whose body has never been found. Together, they have sought and relied on the counsel of Cohen, who began representing them two days after Sabrina's disappearance, when it was apparent police suspected the couple's involvement.
And together, they made potentially incriminating statements in their Brandon home, which were secretly captured on tape by investigators.
Prosecutors used those tapes to persuade a federal grand jury to indict the couple Sept. 9 on charges they made false statements to investigators.
Marlene Aisenberg is said to have told her husband, "The baby's dead and buried! It was found dead because you did it!" Aisenberg is said to have told his wife, "We need to discuss the way we can beat the charge."
For prosecutors, the tapes were a crack in the armor. Today they will seek the legal wedge they think is needed to break the case wide open: a ruling that the Aisenbergs must part ways with Cohen.
Their theory goes like this: If they are able to persuade a judge to disqualify Cohen from representing the Aisenbergs, the couple will be forced to get separate lawyers -- who will be ethically bound to advise their clients to do whatever is necessary to avoid a conviction, even if it means cutting a deal with prosecutors.
"It is a divide-and-conquer approach. The lawyers for the husband and wife will be each looking out for their individual client's best interest. And if it is in the client's best interest to plea, she will advise that," said Amy Mashburn, an ethics professor at the University of Florida Levin College of Law.
Legal experts say there is precedent in allowing one attorney to represent two defendants.
"There is no blanket prohibition" against one lawyer representing both a husband and wife, Mashburn said. "But it is often not allowed because it can blow up fairly soon."
For instance, Mrs. Aisenberg could turn evidence against her husband. Aisenberg could strike a plea deal. Should any of these scenarios arise, legal experts say, Cohen would have to step away from at least one case because his loyalty would be divided.
But so far none of the scenarios has played out. Government attorneys argue they will; Cohen says they never will.
Experts say the judge, Mark Pizzo, will make a decision by weighing the likelihood of future conflicts and by squaring two competing principles: the right to counsel and the right to have counsel of your choice.
"The job of the court is to protect them from their lawyer and themselves. A lawyer owes them an independent proof of judgment. When there is likely to be diminution of that, then the lawyer must tell the client and the client must consent. But when the diminution is too great, the judge won't let them consent to the representation," said Robert Atkinson, an ethics professor at the Florida State University College of Law.
Moreover, legal experts said, there is an added concern.
"The judge will want to ensure that the issue of conflict won't arise in the future and be a basis of an appeal that could lead to a new trial," said Matt Farmer, a Tampa defense lawyer.
The judge is not expected to make his ruling today.
Should their first legal argument fail, government lawyers advance a second theory for why Cohen should not represent the Cohens: He might be called as a witness.
They say that since he has counseled the Aisenbergs from the start, he has been involved in mak- ing statements to law enforcementthat include the "production of false leads" into Sabrina's whereabouts and the concealment of material facts. They stress, though, that Cohen was not part of the alleged conspiracy or any criminal activity.
Legal experts say it is highly unusual for the government to make such a request, and that it would be even more unusual for such a request to be granted.
"Most courts look unfavorably on prosecutors calling a defense attorney as a witness because it is so susceptible to abuse," said Atkinson, the law professor.
Whatever the outcome of tomorrow's hearing, some legal experts say the government will have won the battle by merely sowing seeds of mistrust and suspicion in the Aisenbergs' minds by raising the question of Cohen's effectiveness.
"Just by asking the judge, it's already disruptive," Atkinson said. "They are already wringing their hands and thinking that they might need to get a new lawyer."