A special prosecutor says the lead investigators and their superiors botched the investigation, but were not criminally negligent.
By GRAHAM BRINK and SYDNEY P. FREEDBERG
© St. Petersburg Times, published December 20, 2001
VIERA -- A special prosecutor absolved two Hillsborough County sheriff's detectives and their superiors Wednesday of criminal wrongdoing in the way they handled the bugging of the home of Steve and Marlene Aisenberg.
But the special prosecutor's report was not all good news for the Sheriff's Office: His report paints a grim picture of a botched investigation run by something akin to the Keystone Cops.
Norman Wolfinger called some of the actions by the Hillsborough Sheriff's Office "cursory," "irresponsible" and "reckless."
He said there was a breakdown in communication between detectives and the brass, and "fatal errors" in the procedures used to obtain and carry out the bugging operation.
Wolfinger's report laid some blame on former Hillsborough State Attorney Harry Lee Coe III and on former Circuit Judge F. Dennis Alvarez, who signed off on the bugging. He portrayed them as slipshod for rubber stamping inaccurate affidavits. They "certainly should have asked more questions," he said.
The report was narrowly focused on the bugging part of the investigation. It did nothing to shine any light on what happened to the Aisenbergs' 5-month-old daughter, Sabrina, who disappeared Nov. 24, 1997.
In the report, the two lead detectives, Linda Burton and William Blake, admitted they made mistakes but said none was intentional. They blasted the findings of a federal magistrate judge who called their interpretations of some of the taped conversations "pure fiction" and "recklessly misleading."
In interviews with agents from the Florida Department of Law Enforcement, the detectives insisted the Aisenbergs made damning statements on tape and said the parents know what happened to Sabrina. "They lied to us," Burton said. "They got rid of her body, I absolutely believe that."
Hillsborough Sheriff Cal Henderson was traveling and unvailable for comment Wednesday. His spokesman, Col. David Gee, said Henderson will review the case to determine if problems are the fault of supervisors or the fault of departmental policies.
The Aisenbergs' attorney, Barry Cohen, blasted Wolfinger's findings as a "predictable whitewash" to cover up for corrupt cops.
"I think the fact that he didn't even call me or contact me to try to obtain information, knowing that I investigated this thing for four years and had more information than anybody only serves to indicate that (Wolfinger) was guilty of willful blindness and consciously avoided wanting to know the truth."
Wolfinger, the state attorney for Brevard and Seminole counties, was appointed by Gov. Jeb Bush to investigate whether detectives broke the law. The FDLE conducted interviews for Wolfinger.
The Aisenbergs said that someone must have crept into their home in Valrico while they slept and stolen Sabrina from her crib. She has never been found.
Investigators suspected the Aisenbergs killed or sold their daughter, but lacking evidence to prove it, they decided to place listening devices inside the home.
Burton and Blake had never run a bugging operation and acknowledged they did not know any of the procedures. Without many questions, everyone from Maj. Terry to State Attorney Coe and Judge Alvarez signed off on the 79-day bugging campaign.
Alvarez "never asked any questions," Burton said. "He made a comment like, 'Go get them.' "
Alvarez said Wednesday that it's unfair to blame him because, as a federal magistrate specifically found, detectives misled him to get their warrants. "He (the magistrate) mentioned a deliberate disregard for the truth cannot be corrected," Alvarez said. "Nothing to do with the procedures. There was nothing wrong with the procedures in this case."
The bugs picked up more than 2,600 conversations, some in which the detectives said the couple essentially confessed to harming their daughter. But deputies who monitored the bugs admitted to the FDLE that they had a hard time hearing through all the background noise and other distortions.
Concerned that inexperienced monitors didn't know what to listen for or that they could have missed pertinent conversations, the investigators decided to listen to the tapes again.
For several days and nights, they gathered in a conference room with pads, pencils and new listening equipment. Listening to a set of better quality tapes, they tried to fill in gaps the monitors had left. They made so many transcripts with different variations that some of the monitors told the FDLE that they weren't entirely accurate.
Not one of the prosecutors questioned discrepancies between the transcripts and the tapes, Detective David Fleet told FDLE investigators. The detectives' supervisor, Sgt. Don Roman, who had worked on dozens of electronic surveillances, called the tape review "very out of the ordinary."
Federal prosecutors used those tapes and transcripts to persuade a grand jury to indict the Aisenbergs in September 1999 on charges of conspiracy and making false statements.
The indictment quoted Marlene telling Steve: "The baby is dead and buried. It was found dead because you did it." She was also quoted saying: "I hate you, I hate what you did to our tiny daughter."
The Aisenbergs' tape expert said he could not hear those statements. U.S. District Judge Steven Merryday called the tapes "largely inaudible," although he did not comment on specific statements. U.S. Magistrate Judge Mark Pizzo heard two weeks of testimony to consider whether sheriff's detectives deliberately misled Judge Alvarez. In a blistering opinion issued Feb. 14, 2001, Pizzo said four of 12 tapes he reviewed were unintelligible. On the others, he said, detectives recklessly took statements out of context or distorted the meaning.
A week later, federal prosecutors dropped all the charges. After chasing 2,200 leads and 1,300 unfounded Sabrina sightings, the $2-million investigation -- the most expensive in Hillsborough history -- was irreversibly botched.
The U.S. Department of Justice and the Florida Bar have ongoing investigations into the conduct of the two lead federal prosecutors, Stephen Kunz and Rachelle DesVaux Bedke.
In interviews with investigators, Burton and Blake lashed out at Pizzo, saying his interpretations were wrong. Blake suggested that Pizzo bought into Cohen's "surgically cleansed explanation of every conversation."
Blake questioned Pizzo's ability to hear. "What are his hearing abilities? You know, had he fired a gun the weekend before?"
Burton and Blake said that investigators and prosecutors, including former U.S. Attorney Donna Bucella, heard the incriminating statements and told them to proceed. "We all still hear, 'I hate you, I hate what you did to our tiny daughter,' " Burton said.
"It's there, and they know what happened to their baby."
Wolfinger's investigation revealed that one monitor, Alfred L. Ford, felt that several detectives became frustrated that monitor Lester Orgeron did not agree with their transcripts. Another monitor, Jussara Olmeda, said Orgeron told her he felt "a little upset" because the detectives were pressuring him. Orgeron said he was never pressured.
Maj. Terry denied pressuring anyone to alter transcripts or say they heard something on the tapes that they had not. Wolfinger came to the same conclusion. He listed four "fatal errors" in how the bugging operation was carried out:
Detectives Burton and Blake were unfamiliar with bugging procedures and did not know why many of the decisions in the case were made. "Unfortunately, this is the error that ultimately creates the situation where the right hand does not know what the left hand is doing."
The detectives, their supervisors, the state attorney and the judge overseeing the bugging allowed the application to go forward even though it listed three crimes -- sale of a child, child neglect with great bodily harm and aggravated child abuse -- not authorized in the bugging statutes. The fourth crime, homicide, was authorized.
The state attorney's office wasn't concerned about how the detectives investigated the case and the flimsy information they used to secure the warrants to bug the home.
Due to faulty procedures and poor tape quality, monitoring and reporting of the conversations became impossible.
"If they (detectives) don't know what they are doing, and are not capable of recognizing the fatal errors that they are making, their investigation is doomed to failure from the start," Wolfinger said.
That doesn't cut it for Cohen. He said it is wrong for Wolfinger to blame problems on the detectives not knowing the law on wiretaps. Instead, Cohen said, Wolfinger should have focused on their "lies."
In her interview with investigators, Burton portrayed the Aisenbergs as neglectful parents and described Steve as controlling. "If somebody's got her (Sabrina) then all I can say is, you know, I really screwed up," she said.
"It may have been an accident because I truly believe that Marlene loved her with all her heart. I don't think Steve did."
-- Staff writers Sue Carlton and Kathryn Wexler contributed to this report.