The magistrate says the couple accused in their 5-month-old baby's disappearance are unlikely to turn on each other.
By SARAH SCHWEITZER
© St. Petersburg Times, published October 20, 1999
TAMPA -- A federal judge ruled Tuesday that defense attorney Barry Cohen can continue to represent both Steven and Marlene Aisenberg, saying it was unlikely one Aisenberg would point the finger at the other and divide Cohen's loyalty.
"A blame-shifting defense seems factually and legally impossible given the indictment accuses both defendants with making or adopting the purported false statements," Magistrate Mark Pizzo wrote in a seven-page order. "Nor has the government shown it is likely one defendant will testify against the other."
Pizzo also ruled that the government had failed to prove Cohen was likely to be called as a witness at the Aisenbergs' trial, a move that could have forced him to testify about matters harmful to his clients.
Monte Richardson, a spokesman for the U.S. attorney, said the government had no comment about the ruling or whether the government plans to appeal.
Cohen also declined to comment, saying, "I now have a forum to make my comments and that's where I make them: in the U.S. District Court."
The Aisenbergs were indicted Sept. 9 on charges of conspiracy and making false statements to investigators about the November 1997 disappearance of their 5-month-old daughter, Sabrina, whose body has never been found. The Aisenbergs contend someone sneaked into their Brandon home and snatched Sabrina from her crib.
But investigators, suspecting the couple were involved in their baby's disappearance, secretly planted a listening device inside the home to record conversations. In those recordings, Mrs. Aisenberg is said to have 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 we can beat the charge."
The government had hoped to split the couple by forcing them to retain separate lawyers. A separate attorney, government attorneys reasoned, would have no conflict in advising Mrs. Aisenberg to accept a plea bargain or testify against her husband.
In his decision, Pizzo noted that while there was no impetus for Mrs. Aisenberg to turn against her husband at this time, the "overriding undercurrent is the state's potential prosecution of the Aisenbergs for a homicide."
But he said, the government had presented no evidence showing the "undercurrent" was likely to sway Mrs. Aisenberg any time soon.
"(The government) tacitly implies Marlene Aisenberg's avoidance of a state prosecution with all its consequences is a strong motive for her to cooperate against her husband," Pizzo wrote. "While this may be true, after almost two years of investigation neither the government nor the state has apparently extended any offer to her."
Moreover, Pizzo noted, should the government make a plea offer to either of the Aisenbergs, an attorney independent of Cohen could review the proposal and advise either Aisenberg.
In rejecting the government's argument that Cohen could be called as a witness, Pizzo noted that in other such cases, lawyers had been disqualified because they had allegedly participated in a crime being prosecuted or had been the only witness available to testify. But neither was true of this case, he said.
Moreover, he said, forcing Cohen to step away from the case would be a hardship on the couple since they have relied on Cohen's advice since two days after Sabrina's disappearance.
Cohen has "a perspective that would be difficult to pass onto a new lawyer," Pizzo wrote.
If the government does not appeal Pizzo's ruling, the next legal battle is expected to be Cohen's challenge of the listening device that was used to record the Aisenbergs in their home.
The defense plans to claim that the listening device was illegal and that the recordings should not be allowed as evidence.