Steven and Marlene Aisenberg speak publicly at a hearing to determine whether they should be forced to have separate attorneys.
By SARAH SCHWEITZER
© St. Petersburg Times, published October 16, 1999
TAMPA -- Steven and Marlene Aisenberg briefly parted company in federal court Friday to separately declare their intent to keep Barry Cohen as their attorney.
"Steve and I have told the truth from the beginning and we believe that there is no conflict," Mrs. Aisenberg said, her chipper voice in sharp contrast to an all-business navy pants suit.
Steven Aisenberg, somber in appearance and tone, told Judge Mark Pizzo, "I have nothing to hide. I had nothing to do with my daughter's disappearance and I know my wife had nothing to do with it. I feel my . . . (attorney) has not only represented myself, but my wife and my family." The Aisenbergs' first public statements since their indictment last month came at a hearing to determine whether the couple should be forced to have separate attorneys. Under federal rules, a judge is required to hold such a hearing when circumstances might arise that would divide an attorney's loyalty.
The judge did not rule on the issue Friday, but he warned the Aisenbergs about the dangers of using an attorney who might develop a conflict of interest.
"There is no substitute for having counsel that you know and trust," he told Mrs. Aisenberg. "There is nothing worse than feeling all alone in a big courtroom with all eyes on you."
Government lawyers argue that the Aisenbergs' case is rife with potential problems should Cohen be allowed to stay on the case. One of the Aisenbergs could turn against the other or one could agree to a plea bargain, the government claims, which would leave Cohen representing a husband and wife with opposing interests.
The Aisenbergs' attorneys say there is no problem with joint representation because the Aisenbergs' interests are the same and will stay that way.
The Aisenbergs are charged with making false statements to investigators about the disappearance of their 5-month-old baby, Sabrina, in November 1997.
They told investigators someone must have crept into their Brandon home through an unlocked door in the middle of the night and stolen Sabrina from her crib. Despite a massive search, no trace of the baby has ever been found.
Investigators soon suspected the Aisenbergs were involved in the disappearance and planted a listening device in the home. A federal grand jury indicted the couple Sept. 9, citing, in part, secret recordings of the couple.
According to a transcript, Mrs. Aisenberg told her husband, "The baby's dead and buried! It was found dead because you did it!" Steve Aisenberg is said to have told his wife, "We need to discuss the way to beat the charge."
In deciding the issue of representation, Judge Pizzo's job is twofold. First, he must determine whether the Aisenbergs are competent and fully understand the conflicts that could compromise their lawyer's representation of them. Second, he must determine whether to override their decision.
After peppering the couple with questions and offering his own warnings about joint representation, Pizzo decided Friday that the couple had "knowingly, intelligently and voluntarily" waived their right to separate attorneys.
He left unanswered the remaining question of whether to override their waiver.
Throughout the hearing, Pizzo prodded attorneys with pointed questions and observations.
"Is there any evidence outside the affidavit that shows one spouse at any time exerted his or her influence over the other spouse?" he asked the prosecutor, Stephen Kunz.
Kunz replied that the government had evidence that Mrs. Aisenberg had expressed concerns about her husband's overbearing manner.
But when the judge pushed further, asking whether the government had the same information from anyone close to the Aisenbergs, Kunz replied, "No."
Later, Pizzo told Cohen, "Frankly, you're in a difficult situation. You're walking a tightrope in a way because you're not sure of what's going to unfold in this case."
Cohen snapped back, "I know what's going to happen."
Pizzo also questioned Cohen's co-counsel, Todd Foster, about the likelihood of Cohen being called as a defense witness and demanded to know how such a scenario could be avoided. Government lawyers argue that because Cohen was present when many of the alleged false statements were made, he probably will need to testify about those statements.
Ultimately, the judge said, the decision will be a difficult one.
"I'm looking at a room through a keyhole and the room is fairly dimly lit," Pizzo said.