Joint defense counsel and other issues are potential complications in the prosecution of the couple.
By LARRY DOUGHERTY
© St. Petersburg Times, published September 20, 1999
TAMPA -- Imagine that federal prosecutors pick up the telephone and make this offer to Marlene Aisenberg's attorney: We'll go easy on your client if she testifies against her husband, Steven.
But Mrs. Aisenberg is represented by the Tampa firm of Cohen, Jayson & Foster, led by the combative and skilled Barry Cohen -- the same Barry Cohen who represents her husband. How could Cohen and his partners objectively advise her on whether to accept such a deal?
The scenario is just one example of the legal complications that pop up when a husband and wife are tried together, sharing legal counsel.
The problems are particularly acute when husband and wife have different levels of alleged culpability. What might be in the interests of one client -- cutting a deal with prosecutors, for example -- might be bad for the other. In the secretly recorded conversations between the Aisenbergs that were quoted in their federal indictment last week, Marlene Aisenberg allegedly said that Steven Aisenberg caused the death of their 5-month-old daughter Sabrina and they conspired to cover it up.
The knotty problem of legal conflicts is not the only one that will complicate the prosecution of the Aisenbergs, accused of lying to authorities when they reported Sabrina had been kidnapped on Nov. 24, 1997. Also bound to arise, defense lawyers say, are issues of spousal privilege and the legality of the secret recordings.
The issue of joint representation seems to be among the first things Cohen and company will have to address when the Aisenbergs make their initial court appearance in Tampa on Oct. 6.
"I think his first decision is to ask the court if he can represent both of them," said Matt Farmer, a Tampa lawyer who does defense work in Tampa's federal courts. "The court has the option of forcing him to withdraw from (representing) one. The second question is, if he wants to represent both, how hard are they going to fight to do that if the court is unwilling to do that?"
From the start, the Aisenbergs have denied any involvement in Sabrina's disappearance. They also have indicated they prefer to keep sharing their legal counsel. Todd Foster, one of Cohen's partners who is assisting in the Aisenberg defense, said in an interview that "we don't anticipate any problems with joint representation."
The Aisenbergs could resolve the issue by telling the judge themselves that they waive any potential conflicts their lawyers might face in representing them both. These issues are resolved in a procedure sometimes called a Garcia hearing, named after the controlling case law. In such a hearing, a judge might question Steven and Marlene Aisenberg about whether they understand that their lawyer might have to balance their competing interests.
Defense lawyers theorize that getting separate attorneys for the Aisenbergs is the first step in the government's strategy to persuade Marlene Aisenberg to testify against her husband. A spokesman for the U.S. Attorney's Office declined to comment, other than that the potential for conflict is "something that will have to be evaluated once they appear here in Tampa."
An easy solution is available for the scenario of prosecutors offering Marlene Aisenberg a deal to testify against her husband, said Victor Martinez, a Tampa defense lawyer and former partner of Cohen's. Martinez later worked with Cohen's firm in his own practice to represent a married couple in federal court.
"You could bring in a separate lawyer to advise her," Martinez said. "After talking to separate counsel, she could intelligently choose to reject the offer, and go on being represented by the same firm as her husband. But the counsel to reject the offer could not be made by his lawyer."
After a judge determines the Aisenbergs are properly represented, the couple are expected to plead innocent. Prosecutors would then furnish them with evidence it plans to use at trial.
That plunges the case into another legal thicket.
Central to the indictment unsealed Sept. 9 are secret recordings investigators apparently made at the couple's house in Valrico in December 1997 and early 1998. Defense lawyers expect that the Aisenbergs' attorneys will fight vigorously to suppress the tapes from evidence on the grounds the eavesdropping had no legal basis. The hearing on this issue could well be the trial before the trial, with the government's most explosive evidence hinging on the outcome. And despite the apparently conflicting roles of the spouses described on the tapes, this motion may not be one troubled by a single lawyer's conflicts.
"Cohen will obviously want to attack the affidavit for the wiretap pretty vigorously," Farmer said. "He could do that without immersing himself in the conflict issue. It may not have anything to do with a conflict. The question is, is the affidavit legal?"
A central question for any eavesdropping application is whether law enforcement officials have exhausted all other means of investigation available to them. That is not an easy test to pass, said Tampa defense attorney Joe Ficarrotta. Six years ago, Ficarrotta persuaded a judge to throw out wiretaps in the Key Bank case, causing the collapse of a corruption and fraud prosecution that had snared prominent businessmen, reputed mobsters and the husband of Tampa's then-mayor.
"The fact that law enforcement claimed the Aisenbergs did not talk to them enough, I don't believe will be enough" to make the eavesdropping legal, Ficarrotta said, adding that it is not known yet what a judge was told to persuade him to approve the secret eavesdropping.
As complex as any of the legal issues are, nothing may be more daunting than the precedent of a couple under investigation secretly recorded in their own home, said Martinez, the defense lawyer.
"It would be quite a thing for me to have to advise couples not to talk to each other in their own home, and to start either writing notes to each other, or trekking over to their lawyer's office every time they wanted to talk," Martinez said. "It just reeks to me of a police state. It seems to me like a very dangerous first step."
Also tied up in the recordings are issues of spousal privilege -- the elementary legal notion that husband and wife should not have to reveal incriminating information about each other.
Law on spousal privilege is complex, lawyers say. While it might apply to testimony sought in open court, it might not stop damning statements uttered in secretly recorded conversations. And, the law being the law, there always are exceptions.
"The privilege doesn't include the commission of crimes" -- for example, if Marlene Aisenberg was plotting with her husband to cover up his crime, said T.J. Fitzgerald, a Tampa lawyer who is Farmer's law partner. Nor may there be a spousal privilege if the conversation involves a crime against each other or their child, Fitzgerald said.