Aisenberg prosecutors suffer setback in court
By GRAHAM BRINK
© St. Petersburg Times, published November 14, 2000
TAMPA -- Fourteen months after prosecutors said they had sensational audiotapes of Steven and Marlene Aisenberg discussing the death of their missing 5-month-old daughter, the case against the couple is foundering.
In a ruling made public Monday, Judge Steven Merryday said he had listened to the tapes and found them "largely inaudible" and of generally poor quality.
The judge appears to be leaning toward finding the tapes inadmissible, said former federal prosecutor Steve Crawford. Such a decision would cripple the prosecution's case against the Aisenbergs, accused of conspiring to cover up the disappearance of their infant daughter Sabrina.
"It's like a warning shot over the prosecution's bow," Crawford said. "This gives them a chance to dismiss the case."
Merryday gave federal prosecutors until Nov. 22 to submit a statement of how they plan to use the recordings to prove their case at trial. A spokesman for the U.S. Attorney's Office said prosecutors would comply.
At issue are the tapes made by Hillsborough sheriff's detectives investigating the disappearance of Sabrina Aisenberg from her home in Brandon on Nov. 24, 1997. Investigators became suspicious of the Aisenbergs after they turned up no evidence of an intruder, and obtained a court order to bug the Aisenberg home.
In indicting the Aisenbergs last year on charges of conspiracy and making false statements, prosecutors released partial transcripts they had made from the tapes.
At one point, Steven Aisenberg was quoted as saying: "We need to discuss the way that we can beat the charge. I would never break from the family pact and our story even if the police were to hold me down. We will do what we have to do."
Marlene Aisenberg reportedly told her husband 29 days after Sabrina disappeared: "The baby's dead and buried! It was found dead because you did it! The baby's dead no matter what you say -- you just did it!"
Merryday did not refer to specific quotes in his ruling, but said he could not hear at least some of the statements provided in the transcripts. He also said he couldn't hear large sections of conversation on the parts prosecutors did not make public.
On top of that, Merryday made it clear that simply being able to hear any of the words does not make the tapes acceptable. Jurors would have to be able to reasonably determine the context in which the speaker used the words, he said.
"A juror should not arrive at an interpretation of a recording based on mere speculation and unleavened imagination, stimulated by an occasional verbal fragment ... plucked from its intended context and placed provocatively in the juror's way," Merryday wrote in the ruling.
While Merryday has not yet ruled on whether the tapes are admissible, he did deny the prosecution's pitch to play the tapes at trial and rule on admissibility after the jury had listened to them.
"He made it clear that he does not want the jury put in a position to guess about what's on the tapes," said John Fitzgibbons, another former prosecutor.
The Aisenbergs' lawyers, Barry Cohen and Todd Foster, have maintained they could not hear what the government said was on the tapes.
The tapes are being challenged on another front, too.
Before a different federal judge, the defense lawyers filed a 116-page motion this year arguing that misrepresentations and omissions of facts were used to apply for permission to place the bugging devices. That judge could rule the tapes inadmissible if he finds something wrong with the way the authorities obtained permission to bug the house.
A hearing in that matter is scheduled for December.
Merryday's ruling leaves the prosecution in a bind, Fitzgibbons said.
Merryday could decide that the tapes are inadmissible, a distinct possibility given the language in the ruling, Fitzgibbons said.
Even if he doesn't, the ruling forces the prosecutors to say publicly how they plan to use the tapes in their case. That gives the defense attorneys a look at the prosecution's trial strategy, a distinct advantage in the secretive federal system.
"The government has to know they are on the ropes," Fitzgibbons said. "If they have something else up their sleeve, this would seem the time to bring it out."
Sabrina Aisenberg has never been found. The Aisenbergs have denied any wrongdoing.
- Graham Brink can be reached at (813) 226-3365 or firstname.lastname@example.org.
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