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An investigator's confident testimony helps shore up a federal case with few high points.
By JEFF TESTERMAN
© St. Petersburg Times, published December 23, 2000
TAMPA -- A two-week hearing on whether to throw out crucial evidence against the parents of missing Sabrina Aisenberg concluded Friday with the unshakeable testimony of a former sheriff's deputy who played a key role in the investigation.
It was one of the few high points for the government in a hearing crucial to its case against the couple, who are accused of lying about their child's disappearance. A judge's recommendation is expected in the new year.
Jussara Baldomero, who monitored conversations from the Valrico home of Steven and Marlene Aisenberg, offered confident testimony about the standards she used while capturing and transcribing the secretly recorded dialogue.
"If I'm not making it out as a word, I'm not writing it down," she said. "If I could not be 100 percent sure, I called it inaudible."
Several critical passages monitored by Baldomero were used to get a court-ordered extension of the surveillance of the Aisenbergs in the investigation into the Nov. 24, 1997, disappearance of the couple's 5-month old daughter, Sabrina.
The child hasn't been seen since. Suspicions arose when Marlene Aisenberg failed a polygraph, leading investigators to theorize that the Aisenbergs killed the toddler, sold her or paid someone to kidnap her.
A grand jury that convened several weeks after Sabrina was reported missing did not charge anyone with murder. But in September 1999, the grand jury indicted Steve and Marlene Aisenberg on federal charges of conspiracy and lying to authorities.
The indictments were based almost wholly on 82 days of tape recordings made by the Hillsborough County Sheriff's Office surveillance team, which used a monitoring room and listening devices installed in the Aisenbergs' kitchen and master bedroom.
In a 116-page motion, defense attorneys asked that the tapes be suppressed, arguing that misrepresentations, omissions of fact and outright lies were used in obtaining court orders permitting the surveillance.
Without the tapes, the case against the Aisenbergs is likely to collapse.
A recommendation on whether to throw out the tapes now rests with federal Magistrate Judge Mark Pizzo.
Pizzo, who presided over the hearing and already has listened carefully to the tapes by himself, must decide whether detectives followed leads on Sabrina's disappearance responsibly or bent the rules to pursue a runaway investigation.
The defense appeared to win points by offering the testimony of a former FBI expert who said the tapes were mostly unintelligible. Another bright spot for the defense was the testimony of a babysitter who said detectives mistook Marlene Aisenberg for her young son, caught on tape imitating a girl's cries to get attention.
Defense attorney Todd Foster and Steve Romine also elicited testimony from lead investigator Linda Sue Burton that transcripts of the tapes don't match the quotes in the applications for surveillance.
Burton, involved in a surveillance for the first time in the Aisenberg case, acknowledged, "I'm not clear as to how it works."
On Thursday, surveillance monitor Phillip Dubord seemed to surprise prosecutors with the revelation that he was partially tone deaf and unable to transcribe his own tapes because of difficulty with background noise.
But Friday, monitor Baldomero shored up the government's case with a steadfast insistence that she had no role in misinterpreting or manipulating the Aisenbergs' taped conversations.
Among statements Baldomero said she heard and transcribed accurately were Mrs. Aisenberg saying to her husband, "I hate, I hate, I hate you for what you did to our tiny daughter," and Mrs. Aisenberg discussing impending grand jury testimony, saying, "But that doesn't mean he can't perjure himself."
Baldomero had her own attorney, Dario Diaz, in the courtroom during her testimony. Later, Diaz said he had been retained because the case is so "high-profile," and because his client no longer is employed by the sheriff's office.
The Aisenbergs, sitting with their five-man defense team, attended each day of this week's hearings. Steve Aisenberg showed no expression, occasionally jotting notes on a legal pad. Mrs. Aisenberg was equally stoic, but slowly shook her head during testimony about the possibility of Sabrina being murdered or sold.
Also observing this week were an attorney and an investigator from the sheriff's legal department.
Sheriff's spokesman Rod Reder said Friday that Sheriff Cal Henderson "is concerned about what he has read in the paper" but will take no action until after the court case ends. "When it is all said and done, he'll look at what's transpired and then look into it," Reder said.
Pizzo is expected to take into the new year to issue his ruling on the defense motion to suppress the tapes. Even if he rules in the government's favor, though, a major obstacle remains for prosecutors.
U.S. District Judge Steven Merryday already has ordered a hearing to test the quality of the Aisenberg tapes and to determine whether the government acted recklessly in handling the electronic surveillance.
- Jeff Testerman can be reached at (813) 226-3422 or firstname.lastname@example.org.
Click here for past coverage of the Aisenberg case