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Lawyers for the couple, whose daughter disappeared in 1997, say a court was misled when it granted wiretaps.
By GRAHAM BRINK
© St. Petersburg Times, published December 6, 2000
TAMPA -- The lawyers for Steven and Marlene Aisenberg want a Hillsborough judge to testify about his role in securing the wiretaps used to charge the couple with lying about the disappearance of their 5-month-old daughter.
County Judge Eric Myers, who at the time worked for the Hillsborough State Attorney's Office, was the prosecutor in charge of the application and subsequent extensions for authority to conduct electronic surveillance on the Aisenberg home.
In the motion, made public Tuesday, attorneys Barry Cohen and Todd Foster wrote that Myers' testimony could show that authorities acted in bad faith in obtaining the wiretaps.
The motion called Myers' testimony "essential" and unavailable from any other source.
Prosecutors told the Aisenbergs' lawyers that they did not think Myers' testimony was relevant and had no plans to call him to testify, according to the motion. The U.S. Attorney's Office does not comment on ongoing cases.
Myers said Tuesday that if subpoenaed he will testify. He said it would be inappropriate to comment about the motion before taking the stand.
At issue are the tactics used to secure the wiretaps during the investigation into the disappearance of Sabrina Aisenberg from her Brandon home on Nov. 24, 1997.
The Aisenbergs said someone must have crept into their home at night and stolen the child. Investigators obtained a court order to bug the home after they turned up no evidence of an intruder. No trace of the child has been found.
In indicting the Aisenbergs last year on charges of conspiracy and making false statements, prosecutors released partial transcripts they had made from the tapes. The tapes are the main evidence against the Aisenbergs that prosecutors have revealed so far.
Last month, U.S. Magistrate Judge Mark Pizzo ordered a hearing to determine whether, as the defense claims, Hillsborough detectives lied or misrepresented facts to a circuit judge in their application for the two wiretap extensions in early 1998.
At the time, Pizzo ruled that the Aisenbergs' lawyers made "a substantial preliminary showing" that Hillsborough Detectives Linda Burton and William Blake had distorted conversations, taken them out of context, omitted evidence and falsely claimed particular words were on the tapes.
The judge cited 13 examples. For instance, in the detectives' first request to extend the wiretap, on Jan. 9, 1998, they cited a doctor's opinion that photographs developed from a home video showed bruises around the baby's eye, mouth, and scalp, as well as hair that had been pulled out. Detectives also said a hairstylist, who saw the baby just before her disappearance, had noticed hair missing from her head.
But detectives were fully aware, defense attorneys argued, that on the day the video was taken several witnesses who saw Sabrina up close noticed no bruises at all. The hairstylist, too, has sworn she saw no injuries on Sabrina, who was "happy and healthy."
Furthermore, the defense argued, detectives concealed a videotape that showed Marlene Aisenberg passing the baby to friends at a party, evidence that she wasn't attempting to hide the girl.
Faced with these discrepancies, the judge wrote, the detectives appeared to have omitted important evidence that contradicted their claims. If Pizzo decides after a hearing scheduled for Monday that the wiretaps were obtained in bad faith, the recordings could be suppressed, a potentially crippling blow to the prosecution's case.
To help substantiate their claims, the Aisenbergs' lawyers want Myers to say what the detectives told him and what he told the circuit judge who okayed the wiretaps.
"If Judge Myers did not listen to the tapes, if he were furnished false information regarding the clarity of the recordings . . . and if he was kept unaware of the testimony regarding to lack of abuse to Sabrina Aisenberg, his testimony is relevant to show the bad faith of the (detectives)," the lawyers said in the motion.
In preparation for Monday's hearing, prosecutors filed two motions Tuesday asking that nine sheriff's officers and four FBI agents subpoenaed by the Aisenbergs' lawyers not be compelled to testify. They called the subpoenas "unreasonable, overboard, oppressive" and an attempt to obtain evidence to which they are not entitled.
That issue and several others could be taken up at hearings scheduled for today.
- Graham Brink can be reached at (813) 226-3365 or firstname.lastname@example.org.