Missing Sabrina St. Petersburg Times

By LEANORA MINAI

© St. Petersburg Times, published September 11, 1999

The day Sabrina disappeared, Steve and Marlene Aisenberg appeared on television and begged, "Please bring our baby back to us."

• Bugs hard to get, experts say
• How can parents lack a conscience? The 'Me Syndrome'
• Lawyers say indictment aims to split Aisenbergs
Federal prosecutors charge that the real Marlene Aisenberg is the one who shouted at her husband a month later behind closed doors: "The baby's dead and buried! . . . You did it!"

Aisenberg supporters have raised the prospect that their recorded private conversations have been taken out of context to support their federal indictment on charges of conspiracy and obstructing the investigation of Sabrina's disappearance.

But if Marlene and Steve Aisenberg are the calculating, callous parents the audio tapes portray, they join a growing list of parents who behaved one way in public, while secretly caring only for themselves.

"It takes a real cold, calculated person to withhold something like that, especially with a child," said Steve Aspinall, a St. Petersburg homicide detective.

Aspinall calls it the "Me Syndrome." Some people, parents included, lack a conscience and care only about staying out of prison.

"It's me, me, me, me," Aspinall said. "It's not, "Hey, we had a little girl here who got killed and somebody needs to answer for it."'

Doctors and criminologists suggest that in cases that involve parents killing their children, almost always the parents are driven by fear, a desire to protect themselves and to stay out of jail.

Several people Friday drew comparisons between the Aisenbergs and Susan Smith, the South Carolina woman who in 1994 told the nation that her two young sons were kidnapped, then nine days later confessed that she strapped them in their car seats and watched them drown in a lake.

How could a mother do such a thing?

Charles Patrick Ewing, a New York lawyer and psychologist who wrote the book Fatal Families, said some parents can actually convince themselves of their innocence.

"We want to believe them, and because we want to believe them, they get an awful lot of positive reinforcement with the story they tell," Ewing said. "In some cases, I'm convinced the parents come to believe their own lies after a while."

Parents covering up their involvement in a child's death may be able to rationalize and maintain an elaborate hoax because they are insincere and had children for the wrong reasons, said Norman Poythress, a psychologist at the University of South Florida in Tampa.

"To the extent that the motivation is to have children and a family, the harder it would be to do something like this," he said.

Sometimes, parents get the stamina to keep up their lie from society. They make their rounds on the television talk shows. They get help from everyday people who volunteer to comb the woods or hand out fliers.

"Not everybody has a conscience," said Charles Mutter, a Miami psychiatrist who testified for the state in the Ted Bundy prosecution. "They know what they did was wrong, but they don't care."

Some criminologists say the Aisenbergs might have been able to steer clear of any blame in their daughter's disappearance because they didn't have enough face-to-face contact with law enforcement.

Two days after the disappearance, and after they faced a round of questioning from FBI agents and sheriff's investigators, they hired a prominent defense attorney and stopped talking to authorities about the night Sabrina disappeared.

"As long as people are not put to the test by the authorities, it's fairly easy to maintain this kind of facade," Ewing said.

The Aisenbergs have appeared on Dateline NBC and Good Morning America, among other programs.

They also had backyard parties, including children's parties with horses and ponies. One allegation by prosecutors charges that they used donations intended to help find Sabrina to pay their credit card bills.

"They go on living, but they're always living with one eye over their shoulder waiting for the ax to fall," Ewing said. "That's got to be an awful existence."

Planting the devices, which can be attached to appliances, requires a court order.

By DAVID KARP

© St. Petersburg Times, published September 11, 1999

TAMPA -- It was December 1997, just days after Sabrina Aisenberg disappeared, and Hillsborough sheriff's detectives suspected her parents.

• How can parents lack a conscience? The 'Me Syndrome'
• Public anguish was false front, indictment alleges
• Lawyers say indictment aims to split Aisenbergs
They sent prosecutors to Hillsborough Chief Circuit Judge F. Dennis Alvarez with an extraordinary request: They wanted to put a bug in a Hillsborough County home connected to a possible kidnapping.

Records show that Alvarez granted the request, issuing an order on Dec. 12, 1997, authorizing the planting of a micro-eavesdrop device.

The order, filed with the Administrative Office of the United States Courts in Washington, does not specify the Aisenberg home by name or address. It notes that the device would be placed in a single-family home in Hillsborough County to gather evidence in a kidnapping case. It was the only such order entered in either 1997 or 1998 in Hillsborough County.

Alvarez's initial order granted authorities permission to eavesdrop for 30 days. He extended it twice for a total of 90 days, ending in mid-March 1998. Based on recordings of their conversations, federal authorities Thursday charged the Aisenbergs with making false statements about their daughter's disappearance.

The micro-eavesdrop bug that Alvarez authorized was the kind that picks up conversations from inside someone's house. According to Michael Peros, chief technician at Privacy Electronics in Pinellas Park, the bug works this way:

Agents wire the device to the electric lines of an appliance like a lamp or stereo, which is positioned prominently in a bedroom to pick up conversations. They choose an appliance plugged into an outlet, which allows the bug to use electricity. The recordings travel outside the house through power lines, where agents can pick up the conversations from a post miles away.

This type of bug does not record phone conversations.

If a state judge indeed approved bugging the Aisenbergs' house, it might help attorney Barry Cohen get the recordings thrown out in court, said former FBI agents who have worked on similar cases. A federal judge would now have to review whether a state judge properly authorized the eavesdropping.

"Bugs and wiretaps are generally pretty rare, much more so than people think," said Jim Felman, a defense attorney in Tampa.

Wiretaps are difficult to obtain, said Felman, because they require a showing of probable cause to a judge that a crime has been committed, or is being committed.

Moreover, wiretaps tend to be costly because law enforcement personnel must monitor them and review tapes.

"It sort of is a last resort," said Al Scuderi, a 30-year FBI veteran who nows works as an investigator at the law firm of James, Hoyer & Newcomer in Tampa. "You have to have a finding of probable cause and (show) that all other means have been exhausted."

Judges review reports on electronic eavesdropping every 30 days to decide whether the bugging should continue, he said. Federal law also requires agents to stop listening to conversation unrelated to a criminal case.

Hillsborough criminal defense lawyer George Tragos said much of the talk at the federal courthouse Friday was about how quickly the authorities received permission to bug the Aisenbergs' home.

"That's like lightning," he said.

Former FBI agents said it's much easier to get approval from a state court for bugs, particularly when cases such as the Aisenbergs' begin with local law enforcement agencies. On the federal level, agents must often get approval from the Justice Department in Washington to seek a court order.

"You have to get your things screened by levels of bureaucracy," Scuderi said. "The local system moves much faster. ... When you are dealing with the sheriff's office, you can walk into a local judge that is familiar with you."

Even so, state judges who issue court orders permitting bugging must follow laws that are just as rigorous as similar federal laws, defense attorney Stephen Crawford said.

It's possible that authorities used other types of bugs to record the Aisenbergs' conversations, although security experts interviewed Friday didn't think it likely.

Cohen said he did not have the Aisenberg home swept for listening devices.

"Why the hell would we sweep the place?" Cohen said. "I wasn't even thinking about the place. I knew there was nothing incriminating going to be said. I wasn't worried about it."

Besides the micro-eavesdrop device, other spy gadgets include remote bugs that transmit conversation through the airwaves. Another option is a laser beam pointed at a window to pick up conversations.

But both of those type of bugs comes with problems. Remote bugs can be easily detected through the airwaves, and they quickly lose power if operated by a battery. The laser beam also can be picked up easily. The beam must be a few thousand feet from a window and must be aimed directly at the glass.

"There is such technology, but it is not dependable," said George Krout, a FBI agent and technical adviser for 33 years who is now a private investigator. "That's more James Bond stuff."


-- Times staff writers Graham Brink, Sue Carlton and Larry Dougherty contributed to this report.

The couple posts bail in Maryland and faces an arraignment hearing in Tampa.

By SUE CARLTON, MARY JACOBY and LARRY DOUGHERTY

© St. Petersburg Times, published September 11, 1999

• Bugs hard to get, experts say
• How can parents lack a conscience? The 'Me Syndrome'
• Public anguish was false front, indictment alleges
They cried. They begged. They pleaded for the safe return of their baby Sabrina.

On Friday, they walked, eyes forward and heads upright, pushing through a crowd of reporters without saying a word.

Steve and Marlene Aisenberg, who for nearly two years have been victims, got their first taste of life as criminal defendants. They each posted $25,000 in bail at a Maryland federal courthouse, submitted to urine tests and promised to appear at an arraignment in Tampa.

photo
Steve and Marlene Aisenberg leave court in Greenbelt, Md., Friday after posting bail. They are charged with conspiracy and lying to investigators about the disappearance of the daughter. [AP]

Both dressed in dark suits, they climbed into a waiting Toyota, and a relative drove them away.

As they left the courthouse, hand-in-hand, speculation already was turning to whether federal authorities hope ultimately to split them apart.

Prosecutors say that Steven
The charges

Here is a detailed explanation of the charges against against Steve and Marlene Aisenberg:

Steve Aisenberg is charged with four counts of making false statements, and Marlene Aisenberg with five counts of making false statements. Each count carries a maximum of five years in prison.

Steve and Marlene Aisenberg are both accused of falsely telling law enforcement the morning of Nov. 24, 1997, that they awoke and discovered Sabrina was gone and had been kidnapped by an unknown person.

Both are accused of falsely telling investigators that Marlene Aisenberg was so upset by the disappearance that she urinated on the floor.

Steve Aisenberg is charged with giving investigators a false written statement the day after the disappearance. The statement said the couple were awakened by a television alarm at 6:30 that morning, that Steve heard Marlene yelling Sabrina was gone, that Steve checked under the crib, and that Marlene urinated on herself as she called 911 to report the disappearance.

Both Steve and Marlene Aisenberg are charged with falsely telling investigators seven weeks after the disappearance that a videotape they had seen showed Sabrina alive at a Texas airport.

Marlene Aisenberg is charged with making false statements to investigators nine days after the disappearance, by giving them clothing she had claimed she was wearing the morning Sabrina disappeared. Marlene Aisenberg also is charged with falsely denying there was a bald spot on Sabrina's head, where hair had been removed the night before she disappeared.

Both Steve and Marlene Aisenberg are also charged with one count of conspiracy to make false statements, a separate charge with a five-year maximum penalty.

Listening devices placed in the couple's home by investigators recorded conversations that mentioned the death of Sabrina and a coverup. Those conversations are quoted in support of the conspiracy charge.

The conspiracy count also lists several acts intended to support the alleged coverup, including allegations that the Aisenbergs were unhelpful to investigators, lacked remorse about Sabrina's disappearance and passed off a picture of their daughter Monica as one of Sabrina.

"I have personal knowledge about a lot of those things being ridiculous," the Aisenbergs' attorney, Barry Cohen, said Friday. The Aisenbergs have not entered pleas to the charges, but Cohen has promised a vigorous defense.
Aisenberg was secretly recorded admitting he "harmed" the baby while high on cocaine and that Marlene Aisenberg spoke about helping to cover up the death of her child.

Although the couple was indicted on the less serious charges of making false statements, lawyers speculate the goal may be to turn wife against husband.

"I suspect that their ultimate plan is what it always is," said veteran attorney Rick Terrana of Tampa. "Charge them both and hope one flips against the other."

Five-month-old Sabrina, who disappeared from the Aisenbergs' home in November 1997, has never been found, despite an exhaustive search across the nation and into several countries.

The couple said that they thought someone crept into their home and kidnapped Sabrina and that she was still alive. They hit the national talk show circuit and appealed for her return.

Within days of her disappearance, the Aisenbergs hired prominent defense lawyer Barry Cohen, who aggressively protected them throughout a grand jury investigation and criticized authorities as short-sighted and heavy-handed.

Investigators, meanwhile, bugged the Aisenberg home and recorded their conversations.

The indictment Thursday surprised Cohen and the Aisenbergs, who moved to suburban Maryland earlier this year with their two other children.

Given the potentially damning statements the Aisenbergs are alleged to have made, speculation focused Friday on whether federal prosecutors are aiming to offer Marlene Aisenberg a deal to testify against her husband.

"They tried to do that on the first day they interviewed them, back at the Sheriff's Office," Cohen said. "That's not going to happen here. Not very likely, from what I know."

Even with the recorded conversations, which Cohen plans to attack in court, investigators are without a body. While some murder cases are tried without a body, those cases often include confessions, physical evidence or the testimony of witnesses.

In this case, some attorneys say, prosecutors may feel little reason to rush.

"There's no statute of limitations" for murder, said defense lawyer Paul Sisco, a former state prosecutor. "It may very well be that statements will come out in the next month or the next year that will give them a better case for a (murder-related) indictment before the clock starts ticking on speedy trial."

Dr. Michael Welner, an assistant professor at New York University's School of Medicine, said the indictment is probably a prelude for more serious charges.

"If the community's offended," Welner said, "it's one step closer to a more serious indictment."

Federal murder charges are usually related to drug or racketeering charges, so any homicide charge in this case would likely fall to state prosecutors.

Hillsborough State Attorney Harry Lee Coe declined to comment, but confirmed his office has an open file in the case.

Cohen said that if prosecutors had "any serious evidence," they would have charged the Aisenbergs with the baby's death. He continued to express "every confidence" in the Aisenbergs, and remained skeptical about the recorded conversations.

Outdoor Systems in conjunction with M/I Homes, a company Steve Aisenberg worked for, sponsored a billboard near Interstate 275 in Tampa about Sabrina's disappearance. [Times photo, 1997: Tony Lopez]

"All of what you saw in the indictment appears to be information that was gleaned very close to the day that Sabrina disappeared," said Jeffrey Wennar, Marlene Aisenberg's temporary court-appointed attorney in Maryland. "Am I surprised that it took two years? I'm not surprised by anything that the Department of Justice does."

Prosecutors say that Marlene Aisenberg told her husband:

"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."

They say Steve Aisenberg spoke of a plan to beat the charge and said he would never "break from the family pact."

"We will do what we have to do," he is quoted as saying.

"I wish I hadn't harmed her," he is quoted saying days later. "It was the cocaine."

Cohen said those words may have been taken out of context. ""I've seen so many transcripts of purported tapes, and I know when you see the transcript and you listen to the tape, many times there are things taken out of context or misinterpreted or things that have two meanings,'' Cohen said.

At Thursday's bail hearing, a federal prosecutor quoted Steve Aisenberg as admitting using cocaine. The prosecutor used that statement to convince the judge to have the Aisenbergs tested for drugs as part of the bond agreement. But the statement does not appear along with several others printed in the 27-page indictment

Cohen said he doubted the statement about cocaine was even on the tape. He said allegations that his clients used drugs were "nonsense."

The next step for the Aisenbergs is arraignment in Tampa. That hearing, which will probably take place within the next couple of weeks, is an opportunity for the defendant to enter a plea. "There will be some interesting motions," Cohen said, declining to elaborate.

-- Times staff writer Leanora Minai contributed to this report.

The indictment of Marlene and Steven Aisenberg contains excerpts from surreptitious recordings of the Aisenbergs' private conversations made by investigators:



© St. Petersburg Times, published September 10, 1999

Dec. 16, 1997, 1:05 p.m. (the first day since the reported kidnapping on which there were no law enforcement agents in the Aisenberg house): Steven Aisenberg tells Marlene that she has to be careful what she tells people, and that "what happens in this house stays in this house."

Dec. 17, 5:35 p.m.: Marlene Aisenberg tells Steven she doesn't like lying to her father about the disappearance of Sabrina. Steven responds that she should tell her father not to ask questions.

Dec. 23, 7:20 p.m.: The Aisenbergs discuss Sabrina's disappearance and possible stories they could tell the police.

Marlene: "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!"

Steven: "Honey, there was nothing I could do about it. 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: "If I'm gonna run away, who am I gonna run with?"

Steven: "Are we, are we really going to, Mar? Where we gonna run away to?"

Dec. 24, 11:20 p.m.: The Aisenbergs talk about the possibility of neighbors being witnesses against Steven. He says: "They can't hang me, the other four neighbors. They can't hang me unless you attack me before the evidence."

Moments later, Marlene says: "Oh, Steve! I tried to save her, she died and ah, we can't confuse them but we'll try it Hon, you know." She adds: "I don't think I have to wait for Joe Sarge to take me to jail ..."

Steven: "None of us expects that, I don't expect that to happen."

Jan. 5, 1998, 5:55 p.m.: Marlene asks Steven what would happen if the police were to check the shed. "You know nothing," Steven responds.

Jan. 21, 9 p.m.: Steven tells Marlene, "I wish I hadn't harmed her."

Marlene: "I just can't take the rap for this."

Jan. 31, 2:30 p.m.: Marlene is confronted by her father about what happened to Sabrina. Marlene says, "I subconsciously did not do anything, do you understand?" She adds: "Right now, right now, I can't see them having any evidence strong enough to indict me."

Later that day, Steven tells Marlene: "What we're gonna have to do is always turn on the radio if you presume they are listening."

Feb. 17: The Aisenbergs talk about how the grand jury is still investigating.

Steven: "They don't know the truth, right?"

Marlene: "Yeah ... So, so, in a way, you know, that means nobody knows what we did still."

Steven: "Exactly."

© St. Petersburg Times, published September 10, 1999

photo
BEFORE THE DISAPPEARANCE: Steve Aisenberg plays with his youngest daughter, Sabrina. [Family photo]
1997

Nov. 24: Marlene Aisenberg calls 911 to report her 5-month-old daughter, Sabrina, disappeared from her crib between midnight and 6:42 a.m.

Nov. 25: The FBI and Florida Department of Law Enforcement join the investigation as Hillsborough sheriff's divers search a pond behind the Bloomingdale subdivision where the Aisenbergs had lived since 1991. Deputies also use dogs to search woods near the house but found no trace of the baby.

Nov. 26: After intense questioning by FBI agents and sheriff's detectives, the Aisenbergs hire prominent Tampa defense lawyer Barry Cohen. They stop talking to authorities about the night Sabrina disappeared.

• Exerpts from the indictment
• Events in the disappearance of Sabrina Aisenberg
• People involved
• Gallery of photos
• Archive of coverage
• Main story
Dec. 1: Stan Sadowsky and Elaine Weinberger, Sabrina's maternal grandfather and aunt, appear on CNN's Larry King Live to talk about Sabrina's disappearance.

Dec. 2: Dateline NBC airs a report about the case, with the storyline that many in the Tampa Bay area suspect the Aisenbergs killed their baby.

Dec. 11: Sheriff's officials combed the banks and a 2-mile stretch of the Alafia River but find no trace of Sabrina. A tip generated from the television show America's Most Wanted focuses authorities' interest on a boat ramp on the river.

Dec. 18: Hillsborough sheriff's deputies and officials from several other counties finish canvassing grounds and eight ponds in a 5-mile radius of the Aisenberg's Bloomingdale home.

Dec. 23: In a prepared speech delivered at Cohen's downtown Tampa office, Marlene and Steve Aisenberg ask whoever had 6-month-old Sabrina to return her to her family. That night, the indictment alleges, they talk about how he killed Sabrina and how they need to cover it up.
1998

Jan. 9: After shunning the media for almost six weeks after their baby vanished, the Aisenbergs begin a media tour with an interview with the Times. In the days that followed, they appeared on Dateline NBC, Good Morning America, Today, Oprah and Larry King Live.

photo
Outdoor System Advertising workers install a billboard for missing Sabrina Aisenberg at the corner of Marion and Scott Streets facing I-275 traffic. [Times files, 1997: Tony Lopez]

Jan. 11: The indictment alleges the Aisenbergs discuss concerns that she might be in trouble because of a timeline they prepared for their attorney.

Jan. 22: Hillsborough sheriff's investigators launch an unusual public counterattack, suggesting at a news conference that they had serious suspicions about the Aisenbergs. Despite an investigation so broad it has encompassed 31 states, 702 leads and more than 1,200 interviews, "we still come back to the community, we still come back to Hillsborough County," said sheriff's Maj. Gary Terry.

Jan. 27: Investigators question 11 friends and neighbors about the Aisenbergs' behavior toward their children and each other.

Feb. 11: The Aisenbergs appear before a federal grand jury investigating Sabrina's disappearance. Both Aisenbergs emerge from their separate trips into the grand jury chambers within 15 minutes.
1999

photo
JAN. 13, 1998: The Aisenbergs appear on MSNBC's news program to discuss the disappearance of Sabrina. [Times photo: Thomas M. Goethe]
April 2: Sabrina's disappearance is featured on the CBS TV program Unsolved Mysteries.

Early May: A neighbor of the Aisenbergs said that Steve Aisenberg had moved back to his home state of Maryland and that his wife and children planned to follow.

Sept. 9: A federal grand jury indicts Sabrina's parents on charges of obstruction of justice and conspiracy.

Compiled by Times researcher John Martin.

By LARRY DOUGHERTY, SUE CARLTON, RICHARD DANIELSON and SARA FRITZ

© St. Petersburg Times, published September 10, 1999

• Exerpts from the indictment
• Events in the disappearance of Sabrina Aisenberg
• People involved
• Gallery of photos
• Archive of coverage
• Main story
TAMPA -- Twenty-two months after the disappearance and presumed death of their infant daughter, former Brandon residents Steve and Marlene Aisenberg were charged Thursday in federal court.

But not with murder.

A federal grand jury indicted them on charges of making false statements, accusing the couple of fabricating a kidnapping story in November 1997 to explain the disappearance of 5-month-old Sabrina.

The indictment quotes the Aisenbergs' personal conversations, apparently obtained from listening devices planted by federal agents. Those recordings suggest that Sabrina was killed by her father while he was high on cocaine and that the couple staged an elaborate coverup.

photo
Steve and Marlene Aisenberg leave U.S. District Court in Greenbelt, Md., on Thursday with Jeff Wennar, right, Mrs. Aisenberg's attorney. [Photo: Evan Eile]
"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!" Marlene Aisenberg is quoted as telling her husband 29 days after Sabrina's disappearance.

Steve Aisenberg is said to reply: "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."

Days after that conversation, in January 1998, according to the indictment and a federal prosecutor, Steve Aisenberg said: "I wish I hadn't harmed her. It was the cocaine."

The couple's attorney, Barry Cohen, defended the Aisenbergs on Thursday night. "I have every confidence that these people are not responsible for what they've been charged with," he said.

Sabrina was reported missing in a 911 call Marlene Aisenberg placed at 6:42 a.m. Nov. 24, 1997. The couple claimed that they put the child to bed at 11 o'clock the night before and that they awoke to find her missing from her crib.

The garage door had been left open, but the family dog, Brownie, never barked, and there was no evidence of an intruder. The report touched off a massive search in and around the home at 3632 Springville Drive.

Eventually, local, state and federal law enforcement officials began to turn their attention to the Aisenbergs. The couple hired Cohen and refused to cooperate with the investigation, turning down requests for interviews with detectives and instead telling their kidnapping story to local reporters and syndicated television talk shows.

They moved from the Brandon home this year with their two other children and settled in suburban Maryland.

The couple were arrested Thursday. Marlene Aisenberg, 36, refused to admit FBI agents to her home, a tidy split-level house in Bethesda that neighbors said belonged to Steve Aisenberg's father. The agents forced the door open.

The indictment accuses them of a variety of acts designed to foil investigators, including the concocting of false leads in Texas and Michigan. It also accuses them of using contributions from the public for the search for Sabrina to pay down credit cards.

Both were taken before a federal magistrate for an initial appearance Thursday. Each was released after promising to post a $25,000 bond. The Aisenbergs return to court today to provide documentation for their bonds. Further court proceedings will determine when they return to Tampa.

The Aisenbergs' two other children were looked after by Steve Aisenberg's parents while the couple were in federal custody, Cohen said.

The indictments were announced Thursday afternoon in Tampa by U.S. Attorney Charles Wilson, who today will end his five-year reign as top attorney for the Middle District of Florida to become a federal appellate judge.

Wilson said his departure had nothing to do with the timing of the indictments. Instead, he said, the investigation had reached the proper point.

Cohen said the arrests seemed "vindictive." He said Steve Aisenberg told him by phone that he was "sad that he's been indicted for something he didn't do."

Despite the recordings of incriminating conversations, Hillsborough Sheriff Cal Henderson said Thursday that local investigators didn't have enough evidence to bring a murder charge against the Aisenbergs.

Wilson would not discuss why a murder charge was not included in the indictment. Federal murder charges are rare and generally are filed only in conjunction with drug or racketeering cases.

Wilson said the charges should not be seen as punishment for parents who were uncooperative with investigators.

"These are serious violations of state and federal law, including false statements to law enforcement agencies working very hard to find their daughter," Wilson said.

The indictment quotes the recorded conversations as grounds for a conspiracy count. The false-claims counts allege the Aisenbergs lied about a kidnapping; lied about the time they woke up that morning; and lied about what Marlene Aisenberg was wearing that day.

The search for Sabrina prompted a large air and water search, as dozens of divers plumbed the lakes near her house. The case was trumpeted on crime stopper shows and a Sabrina Web site recorded hundreds of thousands of hits. The Aisenbergs were interviewed on Oprah, The Geraldo Rivera Show and network newsmagazines.

Former federal prosecutors who aren't involved in the case said the federal prosecution of the Aisenbergs, without any state charges, was highly unusual.

photo
At a Tampa news conference, Stephen Kunz, deputy chief of the Criminal Division of the U.S. Attorney's Office for the Middle District of Florida, points to a chart showing the indictment. [Times photo: Thomas M. Goethe]
"This is an extraordinary, unusual way to go about a case like this, first to have the federal government involved, and second not to bring the underlying charge (of murder) with tapes like this," said Tampa lawyer Sandy Weinberg.

Today the Aisenbergs' former home on Springville Drive stands empty, a real estate agent's sign in the front yard. Neighbors remain divided on whether the Aisenbergs are suspects or victims.

Next-door neighbor Martha Jones said she assumed at first that the Aisenbergs were telling the truth but noticed "very odd" bits of behavior almost from the moment Marlene Aisenberg knocked on her front door that morning.

Mrs. Aisenberg was with another woman and said, "My baby's missing, my baby's missing," but she was not crying.

"She didn't appear to be extremely upset, as I would have been if my baby was missing, especially a 5-month-old," said Mrs. Jones, a 48-year-old analyst for GTE. "I put my arm around her, and she withdrew immediately. It's so odd that she would do that and not let someone comfort her."

Mrs. Jones also was skeptical about the family's story that their dog Brownie apparently did not alert the family to an intruder.

"Brownie is a barker," she said.

Although to Mrs. Jones, Steve Aisenberg seemed more concerned about the baby's disappearance than his wife, she also told the grand jury that she had heard him yelling at the couple's children before.

"He's a screamer," she said. "We always got the impression that he was the disciplinarian, not her."

As soon as the family was no longer under the Sheriff's Office's surveillance, they began to have backyard parties, including children's parties with horses and ponies, she said.

"If it's true," she said of the charges, "I hope they're convicted" and sent to prison.

At the other end of the street, 46-year-old Don Roetter said he "still can't believe that they had anything to do with her disappearance."

"I know they're sincere," said Roetter, who has kept in touch with the Aisenbergs since they moved. "Their kids are their whole life. . . . Marlene would break down crying all the time thinking about Sabrina."

Roetter said the family believes "that Sabrina will be found. It's just a matter of time." The charges announced Thursday, he said, seem to be based on statements that "could be taken out of context. . . . You're still supposed to be innocent until proven guilty."

Roetter's comments were echoed by the Aisenbergs' attorney, Cohen, who said Thursday that a listener has to understand "the entire context" of any recorded comments.

"I haven't heard the tapes and I haven't heard the information," Cohen said. "But I know that a lot of things are said under emotional circumstances ... said out of stress."

In the indictment, the couple fret about making mistakes in their coverup story.

Investigators apparently began recording the couple on Dec. 16, 1997, the day after ending a vigil in the Aisenbergs' home for a ransom call that never came. Federal agents can place listening devices after obtaining an order from a judge. Prosecutors declined to give any description of how they overheard the conversations.

Steve Aisenberg, charged with one count of conspiracy and four counts of false statements, faces a possible maximum 25 years in prison. Marlene Aisenberg, charged with one count of conspiracy and five counts of false statements, faces a maximum of 30 years.

A former federal prosecutor now in defense practice said he consider the charges an "ulterior motive prosecution" designed to make Marlene Aisenberg testify against her husband.

"What they're trying to do is manipulate the federal justice system to bring pressure on people to solve a larger crime," said Tampa attorney Steve Crawford. "It stands the whole concept of federalism on its head. . . . It's an abuse of the process."

Former federal prosecutor Weinberg said, "There would appear to be some evidence problem that caused the state concern (about bringing a murder charge)."
-- Times staff writer Vanita Gowda contributed to this report.

By LARRY DOUGHERTY

© St. Petersburg Times, published September 14, 1999

TAMPA -- Steven and Marlene Aisenberg's arraignment on federal charges that they lied about the kidnapping of their daughter Sabrina two years ago has been scheduled for Sept. 29 at 10 a.m. in Tampa.

It will be their first court appearance to answer to the indictment lodged by a federal grand jury last week. The indictment quoted electronic surveillance of the Aisenbergs' home that indicated Steve Aisenberg caused his daughter's death and Marlene Aisenberg participated in an extensive coverup.

The charges followed more than a year of national broadcast interviews with the Aisenbergs, who denied any involvement in the disappearance of their daughter and pleaded for her return.

Authorities said they didn't have enough evidence to bring a murder charge in Sabrina's death. Instead, the grand jury indicted the couple on charges of lying about a number of particulars in their kidnapping report on the morning of Nov. 24, 1997: how they learned Sabrina was missing, how they reacted, even what Marlene Aisenberg was wearing at the time.

At the short, routine hearing, the Aisenbergs are expected to enter pleas of not guilty to a magistrate judge. The court will also confirm that the Aisenbergs will have a lawyer, who by all indications is going to be Barry Cohen of Tampa. Cohen said last week the Aisenbergs, who have been living in Maryland since early this year, plan to mount a vigorous defense.

Attorney Barry Cohen opposes the release of papers on why investigators suspected the couple in their infant daughter's disappearance.

By LARRY DOUGHERTY

© St. Petersburg Times, published September 18, 1999

TAMPA -- The lawyer for Steven and Marlene Aisenberg argued Friday that the basis for investigators' suspicions about the couple should remain secret and that he was fighting to "expose the evil in this case."

Barry Cohen attacked the federal government during a hearing on a newspaper's motion to unseal court records in the case. The Tampa Tribune is seeking the affidavits filed by investigators in support of their request for court permission to put listening devices in the Aisenbergs' home shortly after they reported the disappearance of their infant daughter Sabrina.

Chief Hillsborough Circuit Judge F. Dennis Alvarez said it would be at least a week before he rules on the newspaper's motion.

In what appeared to be a preview of his defense for the Aisenbergs against federal charges of obstructing justice in the case, Cohen tried to read into the record excerpts from a 1986 state court opinion on prosecutors' abuse of the grand jury system. The opinion criticized Stephen M. Kunz, one of the prosecutors assigned to the case.

Another federal prosecutor, Rachelle DesVaux Bedke, objected to what she termed Cohen's irrelevant and "preposterous assertions of government misconduct." The judge agreed and told Cohen to drop that line of argument.

Objecting to the Tribune's motion were attorneys representing State Attorney Harry Lee Coe, the U.S. Attorney's Office and Hillsborough Sheriff Cal Henderson. All said such a release would jeopardize continuing investigations, like the one against the Aisenbergs.

Bedke, the federal prosecutor, argued that any release of eavesdropping papers is premature, because the Aisenbergs have not even returned to Florida from their new home in Maryland to be arraigned on the federal charges. The couple faces charges of conspiracy and false statements for allegedly lying to investigators about Sabrina's disappearance in November 1997. According to the indictment, the listening device recorded the Aisenbergs as they discussed Steven's responsibility for his daughter's death, and Marlene's involvement in a coverup.

While saying he wants the public to have a full account at some point, Cohen said he, too, was opposed to the release of the eavesdropping papers because they might contain damaging material about his clients, and he would at present have no forum in which to respond.

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 conflict

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."
Legality of recordings

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."
Spousal privilege

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.

Investigators would be hindered by revealing why they sought to eavesdrop on missing Sabrina's parents, a judge rules.

By LARRY DOUGHERTY

© St. Petersburg Times, published September 28, 1999

TAMPA -- A judge decided Monday not to unseal any papers related to the listening device placed in the home of Steven and Marlene Aisenberg, who are charged with lying to police about the disappearance of their daughter Sabrina two years ago.

The motion to unseal the documents had been filed by the Tampa Tribune and was joined by the St. Petersburg Times.

In denying the newspapers' motions, Chief Hillsborough Circuit Judge F. Dennis Alvarez ruled that any such papers should be kept from public view to protect criminal investigations.

Alvarez also wrote that the request was premature because the Aisenbergs have not yet appeared in a Tampa federal court to answer the charges against them.

A lawyer for the Tribune said Monday that no decision had been made yet about an appeal.

A federal grand jury indicted the Aisenbergs three weeks ago, accusing them of providing police with false details about the kidnapping of their 5-month-old daughter in November 1997.

The Tribune sought access to the sworn statement from law enforcement agents that persuaded Alvarez to authorize a listening device to be placed in the Aisenbergs' residence, then in Brandon, in December 1997.

According to the federal indictment, Marlene Aisenberg was taped telling her husband that Sabrina was dead "because you did it!" Steven Aisenberg was taped saying that they needed to cooperate to avoid being arrested, the indictment states.

Authorities acknowledge that they don't have the evidence to charge either with murder. Sabrina has never been found.

* * *

The Aisenbergs were arrested in Maryland, where they moved earlier this year. They posted bond and are scheduled to make their first appearance in a Tampa courtroom Oct. 6, when they are expected to plead not guilty to charges of conspiracy and making false statements.

Federal prosecutors have opposed the Tribune's request to have papers related to the listening device unsealed. State prosecutors won't even acknowledge a device existed.

In his 11-page order, Judge Alvarez said it was reasonable to believe there was one, based on the statements in the indictment, and because federal records show he authorized such a device for an unspecified kidnapping case in 1997.

The Aisenbergs' lead attorney, Barry Cohen, had opposed release of the papers, saying he didn't yet have a formal forum in which to respond to them. Cohen could not be reached Monday to comment on the judge's order.

Prosecutors say they may call Barry Cohen to testify in the trial stemming from baby Sabrina's disappearance.

By JEFF TESTERMAN

© St. Petersburg Times, published October 9, 1999

TAMPA -- The U.S. government says defense attorney Barry Cohen should be disqualified from representing Steve and Marlene Aisenberg because he may become a witness in their trial.

In court papers filed Friday, federal prosecutor Steven M. Kunz says the joint representation of the Aisenbergs by Cohen, coupled with the fact that Cohen may himself take the witness stand, raises "a serious potential" for a conflict of interest.

"With separate counsel, each defendant, at trial, could choose to explain his or her conduct to the detriment of the other defendant, blame the co-defendant for many of the allegations, or otherwise mitigate their conduct at the expense of the co-defendant," Kunz says. "With the same counsel, that will not happen."

Because of the conflict, the prosecutor argues that Cohen and law partner Todd Foster should be "disqualified" from representing the Aisenbergs and that the couple should be directed to obtain separate counsel.

A federal grand jury indicted the Aisenbergs Sept. 9 on charges of making false statements concerning the disappearance of their 5-month-old daughter, Sabrina. The child has not been seen since the couple reported Sabrina missing in November 1997.

The indictments stem from personal conversations between Steve and Marlene Aisenberg caught by federal agents using listening devices planted inside the couple's Brandon home.

The transcript of one conversation shows Marlene telling her husband, "The baby's dead and buried! It was found dead because you did it!" Another transcript has Steve telling Marlene, "We need to discuss the way we can beat the charge."

Wednesday, the Aisenbergs pleaded innocent to the charges. The couple stood firm in their decision to be represented jointly by Cohen's firm, even as a federal magistrate advised them they would best be served by seeking separate counsel.

Kunz says the the potential for a conflict worsens because Cohen was retained by the Aisenbergs within two days of Sabrina's disappearance, was increasingly involved in the couple's interaction with investigators and thus could end up being a witness in the case.

The prosecutor says Cohen became "a transactional attorney" who involved himself in the making of statements to law enforcement authorities for the Aisenbergs that included "the production of false leads" into Sabrina's whereabouts and the concealment of material facts concerning the baby's disappearance.

At the same time, Kunz strongly emphasizes that the government is not suggesting that Cohen was part of any conspiracy "or involved in any criminal activity" regarding the charges against the Aisenbergs.

The government papers say Cohen's representation also could be problematic because much of the money from the "Baby Sabrina Account" -- established to solicit donations to try to locate the missing child -- actually went to pay Cohen's legal fees.

Previously, prosecutors had charged that the Aisenbergs used money from the account to pay off two personal credit cards. Now, they add that "evidence at trial" will establish that the majority of the funds collected went to Cohen.

Cohen said Friday night that he could not comment specifically on the government's latest arguments.

"I will respond to these allegations in the appropriate forum, which is in the U.S. District Court," Cohen said.

The issue of the Aisenbergs' representation will be considered at a hearing in federal court scheduled for Oct. 15.

Click here Archive
By HOWARD TROXLER

© St. Petersburg Times, published October 15, 1999

Wherever the missing baby Sabrina Aisenberg may be, alive or dead, she cries out for truth.

Truth is sacred. But we are not allowed to trample other sacred things to attain it.

Today, in a federal court in Tampa, the U.S. government will play hardball to get at Sabrina's parents, Steven and Marlene Aisenberg. The attempt borders on playing dirty.

The Aisenbergs are charged with making false statements about Sabrina's disappearance. They are not charged with murder. But the feds are trying to put pressure on one of them to crack.

The U.S. Attorney's Office will try to get a judge to strip the Aisenbergs of the lawyer who has represented them both from the beginning, Barry Cohen.

Cohen is one of the highest-profile lawyers around. He has the guts of a street fighter. His style is confrontational, no-holds-barred, all-out-war.

The prosecutors say there are two reasons Cohen should be removed from the case. The first reason is at least debatable -- that he cannot represent both of the Aisenbergs' interests fairly.

The second reason given by the feds, unless they come up with something better to back it up, is transparent and ridiculous.

They claim Cohen is too involved. He might become a witness. He got paid from the Aisenbergs' public donations. He was involved in their early dealings with investigators, before they were charged.

Well, of course he was involved. He was their lawyer. That is what lawyers do. It might be different if they had Cohen on tape telling his clients, "I now will assist you in providing false leads." But they do not. In fact, they go out of their way to say they are not accusing Cohen of wrongdoing.

The reality is, the prosecutors want to get rid of a strong lawyer who gets in their face. They want to deny the Aisenbergs the defender and defense of their choice and split them up.

I thought Bob Merkle would be a good person to ask about this. Merkle is our former U.S. attorney, now in private practice in Pinellas County. As a prosecutor, he was fearless and ferocious, and he did battle with Cohen, whom he considers to be a good lawyer.

Merkle told me he did not know the facts of the Aisenberg case and would speak only in general. The law clearly gives defendants the right to choose the same lawyer, he said. They have to waive their right to separate lawyers, and they have to show that they know what they are doing.

A judge still can order separate lawyers if the conflict is hopelessly deep, Merkle explained. However, he said that sometimes the government has tried to get rid of a defense lawyer "frankly, because the lawyer was good."

As for trying to remove a lawyer just for representing clients during an investigation, Merkle said prosecutors can be on dangerous ground. "I don't think the government has any business in seeking to recuse a lawyer on the basis of those kinds of facts," he said.

The legal precedent is United States v. Garcia, decided in 1975. While defendants have a right to separate lawyers, they cannot be forced into it as long as they "knowingly, intelligently and voluntarily" waive their right.

The Aisenbergs have shown every indication that their decision has been made knowingly, intelligently and voluntarily. They have decided to sink or swim together.

It would be convenient and easier for prosecutors if they could dictate defense strategy and personnel. But then, it would be convenient and easier for prosecutors if we didn't have judges and juries either.

The indictment makes things look bad for the Aisenbergs. I admit that my prejudice (before hearing any of the defense) is that something terrible and despicable has occurred. I deny that this gives us the right to form a posse, burn down the jail and hang them.

Prosecutors hope to force the couple to get separate attorneys and maybe open the way for one spouse to turn on the other.

By SARAH SCHWEITZER

© St. Petersburg Times, published October 15, 1999

TAMPA -- The battle to turn Marlene Aisenberg against Steven Aisenberg begins this morning in a federal courtroom.

Government lawyers will try to convince a judge that the couple's longtime and trusted attorney, Barry Cohen, should no longer be allowed to represent them.

The move is a barely disguised effort to lay the groundwork for dividing the couple, who have denied wrongdoing since the beginning of the highly unusual and emotional saga of their daughter's disappearance in November 1997.

Together, they have refused to answer investigators' questions. Together, they have appeared on national television to talk about the stranger they say crept into their home and stole 5-month-old Sabrina, whose body has never been found. Together, they have sought and relied on the counsel of Cohen, who began representing them two days after Sabrina's disappearance, when it was apparent police suspected the couple's involvement.

And together, they made potentially incriminating statements in their Brandon home, which were secretly captured on tape by investigators.

Prosecutors used those tapes to persuade a federal grand jury to indict the couple Sept. 9 on charges they made false statements to investigators.

Marlene Aisenberg is said to have told her husband, "The baby's dead and buried! It was found dead because you did it!" Aisenberg is said to have told his wife, "We need to discuss the way we can beat the charge."

For prosecutors, the tapes were a crack in the armor. Today they will seek the legal wedge they think is needed to break the case wide open: a ruling that the Aisenbergs must part ways with Cohen.

Their theory goes like this: If they are able to persuade a judge to disqualify Cohen from representing the Aisenbergs, the couple will be forced to get separate lawyers -- who will be ethically bound to advise their clients to do whatever is necessary to avoid a conviction, even if it means cutting a deal with prosecutors.

"It is a divide-and-conquer approach. The lawyers for the husband and wife will be each looking out for their individual client's best interest. And if it is in the client's best interest to plea, she will advise that," said Amy Mashburn, an ethics professor at the University of Florida Levin College of Law.

Legal experts say there is precedent in allowing one attorney to represent two defendants.

"There is no blanket prohibition" against one lawyer representing both a husband and wife, Mashburn said. "But it is often not allowed because it can blow up fairly soon."

For instance, Mrs. Aisenberg could turn evidence against her husband. Aisenberg could strike a plea deal. Should any of these scenarios arise, legal experts say, Cohen would have to step away from at least one case because his loyalty would be divided.

But so far none of the scenarios has played out. Government attorneys argue they will; Cohen says they never will.

Experts say the judge, Mark Pizzo, will make a decision by weighing the likelihood of future conflicts and by squaring two competing principles: the right to counsel and the right to have counsel of your choice.

"The job of the court is to protect them from their lawyer and themselves. A lawyer owes them an independent proof of judgment. When there is likely to be diminution of that, then the lawyer must tell the client and the client must consent. But when the diminution is too great, the judge won't let them consent to the representation," said Robert Atkinson, an ethics professor at the Florida State University College of Law.

Moreover, legal experts said, there is an added concern.

"The judge will want to ensure that the issue of conflict won't arise in the future and be a basis of an appeal that could lead to a new trial," said Matt Farmer, a Tampa defense lawyer.

The judge is not expected to make his ruling today.

Should their first legal argument fail, government lawyers advance a second theory for why Cohen should not represent the Cohens: He might be called as a witness.

They say that since he has counseled the Aisenbergs from the start, he has been involved in mak- ing statements to law enforcementthat include the "production of false leads" into Sabrina's whereabouts and the concealment of material facts. They stress, though, that Cohen was not part of the alleged conspiracy or any criminal activity.

Legal experts say it is highly unusual for the government to make such a request, and that it would be even more unusual for such a request to be granted.

"Most courts look unfavorably on prosecutors calling a defense attorney as a witness because it is so susceptible to abuse," said Atkinson, the law professor.

Whatever the outcome of tomorrow's hearing, some legal experts say the government will have won the battle by merely sowing seeds of mistrust and suspicion in the Aisenbergs' minds by raising the question of Cohen's effectiveness.

"Just by asking the judge, it's already disruptive," Atkinson said. "They are already wringing their hands and thinking that they might need to get a new lawyer."

Steven and Marlene Aisenberg speak publicly at a hearing to determine whether they should be forced to have separate attorneys.

By SARAH SCHWEITZER

© St. Petersburg Times, published October 16, 1999

TAMPA -- Steven and Marlene Aisenberg briefly parted company in federal court Friday to separately declare their intent to keep Barry Cohen as their attorney.

"Steve and I have told the truth from the beginning and we believe that there is no conflict," Mrs. Aisenberg said, her chipper voice in sharp contrast to an all-business navy pants suit.

Steven Aisenberg, somber in appearance and tone, told Judge Mark Pizzo, "I have nothing to hide. I had nothing to do with my daughter's disappearance and I know my wife had nothing to do with it. I feel my . . . (attorney) has not only represented myself, but my wife and my family." The Aisenbergs' first public statements since their indictment last month came at a hearing to determine whether the couple should be forced to have separate attorneys. Under federal rules, a judge is required to hold such a hearing when circumstances might arise that would divide an attorney's loyalty.

The judge did not rule on the issue Friday, but he warned the Aisenbergs about the dangers of using an attorney who might develop a conflict of interest.

"There is no substitute for having counsel that you know and trust," he told Mrs. Aisenberg. "There is nothing worse than feeling all alone in a big courtroom with all eyes on you."

Government lawyers argue that the Aisenbergs' case is rife with potential problems should Cohen be allowed to stay on the case. One of the Aisenbergs could turn against the other or one could agree to a plea bargain, the government claims, which would leave Cohen representing a husband and wife with opposing interests.

The Aisenbergs' attorneys say there is no problem with joint representation because the Aisenbergs' interests are the same and will stay that way.

The Aisenbergs are charged with making false statements to investigators about the disappearance of their 5-month-old baby, Sabrina, in November 1997.

They told investigators someone must have crept into their Brandon home through an unlocked door in the middle of the night and stolen Sabrina from her crib. Despite a massive search, no trace of the baby has ever been found.

Investigators soon suspected the Aisenbergs were involved in the disappearance and planted a listening device in the home. A federal grand jury indicted the couple Sept. 9, citing, in part, secret recordings of the couple.

According to a transcript, Mrs. Aisenberg told her husband, "The baby's dead and buried! It was found dead because you did it!" Steve Aisenberg is said to have told his wife, "We need to discuss the way to beat the charge."

In deciding the issue of representation, Judge Pizzo's job is twofold. First, he must determine whether the Aisenbergs are competent and fully understand the conflicts that could compromise their lawyer's representation of them. Second, he must determine whether to override their decision.

After peppering the couple with questions and offering his own warnings about joint representation, Pizzo decided Friday that the couple had "knowingly, intelligently and voluntarily" waived their right to separate attorneys.

He left unanswered the remaining question of whether to override their waiver.

Throughout the hearing, Pizzo prodded attorneys with pointed questions and observations.

"Is there any evidence outside the affidavit that shows one spouse at any time exerted his or her influence over the other spouse?" he asked the prosecutor, Stephen Kunz.

Kunz replied that the government had evidence that Mrs. Aisenberg had expressed concerns about her husband's overbearing manner.

But when the judge pushed further, asking whether the government had the same information from anyone close to the Aisenbergs, Kunz replied, "No."

Later, Pizzo told Cohen, "Frankly, you're in a difficult situation. You're walking a tightrope in a way because you're not sure of what's going to unfold in this case."

Cohen snapped back, "I know what's going to happen."

Pizzo also questioned Cohen's co-counsel, Todd Foster, about the likelihood of Cohen being called as a defense witness and demanded to know how such a scenario could be avoided. Government lawyers argue that because Cohen was present when many of the alleged false statements were made, he probably will need to testify about those statements.

Ultimately, the judge said, the decision will be a difficult one.

"I'm looking at a room through a keyhole and the room is fairly dimly lit," Pizzo said.

The magistrate says the couple accused in their 5-month-old baby's disappearance are unlikely to turn on each other.

By SARAH SCHWEITZER

© St. Petersburg Times, published October 20, 1999

TAMPA -- A federal judge ruled Tuesday that defense attorney Barry Cohen can continue to represent both Steven and Marlene Aisenberg, saying it was unlikely one Aisenberg would point the finger at the other and divide Cohen's loyalty.

"A blame-shifting defense seems factually and legally impossible given the indictment accuses both defendants with making or adopting the purported false statements," Magistrate Mark Pizzo wrote in a seven-page order. "Nor has the government shown it is likely one defendant will testify against the other."

Pizzo also ruled that the government had failed to prove Cohen was likely to be called as a witness at the Aisenbergs' trial, a move that could have forced him to testify about matters harmful to his clients.

Monte Richardson, a spokesman for the U.S. attorney, said the government had no comment about the ruling or whether the government plans to appeal.

Cohen also declined to comment, saying, "I now have a forum to make my comments and that's where I make them: in the U.S. District Court."

The Aisenbergs were indicted Sept. 9 on charges of conspiracy and making false statements to investigators about the November 1997 disappearance of their 5-month-old daughter, Sabrina, whose body has never been found. The Aisenbergs contend someone sneaked into their Brandon home and snatched Sabrina from her crib.

But investigators, suspecting the couple were involved in their baby's disappearance, secretly planted a listening device inside the home to record conversations. In those recordings, Mrs. Aisenberg is said to have told her husband, "The baby's dead and buried! It was found dead because you did it!" Steve Aisenberg is said to have told his wife, "We need to discuss the way we can beat the charge."

The government had hoped to split the couple by forcing them to retain separate lawyers. A separate attorney, government attorneys reasoned, would have no conflict in advising Mrs. Aisenberg to accept a plea bargain or testify against her husband.

In his decision, Pizzo noted that while there was no impetus for Mrs. Aisenberg to turn against her husband at this time, the "overriding undercurrent is the state's potential prosecution of the Aisenbergs for a homicide."

But he said, the government had presented no evidence showing the "undercurrent" was likely to sway Mrs. Aisenberg any time soon.

"(The government) tacitly implies Marlene Aisenberg's avoidance of a state prosecution with all its consequences is a strong motive for her to cooperate against her husband," Pizzo wrote. "While this may be true, after almost two years of investigation neither the government nor the state has apparently extended any offer to her."

Moreover, Pizzo noted, should the government make a plea offer to either of the Aisenbergs, an attorney independent of Cohen could review the proposal and advise either Aisenberg.

In rejecting the government's argument that Cohen could be called as a witness, Pizzo noted that in other such cases, lawyers had been disqualified because they had allegedly participated in a crime being prosecuted or had been the only witness available to testify. But neither was true of this case, he said.

Moreover, he said, forcing Cohen to step away from the case would be a hardship on the couple since they have relied on Cohen's advice since two days after Sabrina's disappearance.

Cohen has "a perspective that would be difficult to pass onto a new lawyer," Pizzo wrote.

If the government does not appeal Pizzo's ruling, the next legal battle is expected to be Cohen's challenge of the listening device that was used to record the Aisenbergs in their home.

The defense plans to claim that the listening device was illegal and that the recordings should not be allowed as evidence.

A lawyer says it would take about 50 days to listen to all of the couple's conversations taped by authorities.

By LARRY DOUGHERTY

© St. Petersburg Times, published November 5, 1999

TAMPA -- Defense attorneys for Steven and Marlene Aisenberg are asking a judge for more time to review 214 audiotapes that investigators secretly made of the Aisenbergs talking inside their Brandon home, according to a court motion filed Thursday.

The volume of recorded conversations, along with the hundreds of pages of documents accumulated by prosecutors, will prevent defense attorneys from meeting prearranged deadlines, the motion said.

"If an attorney listened to all 214 tapes non-stop, for eight hours a day, it would take approximately 50 work days to review every recorded conversation," the motion said.

Prosecutors provided the tapes to the defense as a routine part of pretrial discovery. The tapes will not be made public until either prosecutors or defense attorneys use them as evidence in a motion or at trial.

The Aisenbergs reported the disappearance of their 5-month-old daughter, Sabrina, in November 1997, saying they believed a stranger had crept into their home and kidnapped the child. State and federal investigators soon suspected the Aisenbergs were involved in the disappearance and planted a listening device in their home.

The Aisenbergs appeared on a number of network news programs to state their innocence and plead for their daughter's return. She has never been found.

In September a federal grand jury indicted the couple on charges of lying to police when they made their kidnapping report. The indictment quoted excerpts from the recorded conversations suggesting Steven Aisenberg had caused his daughter's death and Marlene Aisenberg had helped cover it up.

A trial date has not been set.

Lawyers want bond conditions revised for the couple, accused of lying about their daughter's disappearance.

By LARRY DOUGHERTY

© St. Petersburg Times, published December 4, 1999

TAMPA -- Federal prosecutors added an explosive twist to the baby Sabrina case in September when they said Steven Aisenberg had admitted to cocaine use on a tape secretly recorded by investigators.

Prosecutors made the announcement the same day they charged Aisenberg and his wife, Marlene, with lying about the disappearance of their 5-month-old daughter, Sabrina, from their Brandon home two years ago. The indictment strongly implied foul play by the couple.

Steven and Marlene Aisenberg are charged with lying about the disappearance of their daughter from their Brandon home.
This week, though, the Aisenbergs' attorneys filed a motion stating they can't find the cocaine comment on audiotapes provided by federal prosecutors. The defense lawyers say some conversations on the tapes are inaudible and unintelligible.

If the government can't provide a tape containing the comment, the lawyers want a judge to modify the conditions of the Aisenbergs' pretrial release bonds, which included a drug screen. In network television appearances, the Aisenbergs have denied wrongdoing in connection with their daughter's disappearance. They have also specifically denied using cocaine.

Besides seeking to loosen the conditions of the Aisenbergs' bond, the defense motion also fulfills lead defense attorney Barry Cohen's announced intention to put investigators' conduct on trial.

The defense motion, filed Thursday, recounts how a federal prosecutor informed a Maryland judge that the government had a taped statement of Steven Aisenberg admitting cocaine use. That comment was not reprinted in the indictment prosecutors filed against the Aisenbergs.

Yet, the motion states, there was no mention of a statement involving cocaine on either wiretap summaries or on selected tapes a federal prosecutor has identified as pertinent to the defense lawyers.

A spokesman for the U.S. Attorney's Office did not return calls seeking comment Friday.

One of the Aisenbergs' attorneys, Todd Foster, declined to say Friday if the defense team had listened to all 214 tapes the government recorded.

For now, the defense's motion appears to be moot. That's because on Wednesday, one day before it was filed, a judge rejected a related motion to modify the Aisenbergs' bond. Thursday's motion was filed as a supplement to the first motion.

Foster, the defense attorney, said Thursday's motion might be refiled when defense lawyers ask the judge to reconsider his decision.

The indictment charges the Aisenbergs with lying to investigators about details of the kidnapping they reported on Nov. 24, 1997 -- the morning they say their daughter was taken from their Brandon house.

The indictment quotes secretly recorded conversations between the couple, in which Marlene Aisenberg allegedly says their baby was "found dead because you did it," and her husband allegedly says, "We need to discuss the way that we can beat the charge." Prosecutors said they didn't have enough evidence to charge the Aisenbergs with murder.

The Aisenbergs now live with their two other children in a house owned by Steven Aisenberg's father in Maryland. Last month, in their original motion to modify conditions of their bonds, the Aisenbergs sought permission to rearrange financial liens on the house.

The house is used as security for Steven and Marlene Aisenberg's appearance bonds -- $25,000 each. Otherwise, it is free and clear of any debt.

To pay the couple's legal bills, the family wants to take out a $200,000 mortgage on the house, which they say was recently appraised for $370,000.

The lender wants to hold the first mortgage on the property, so the Aisenbergs are asking the government to make its bonds subordinate to the first loan.

U.S. Magistrate Judge Mark A. Pizzo denied that motion Wednesday. The Aisenbergs' attorneys filed Thursday's motion as a supplement to the original motion, unaware the judge had already denied it.

No trial date has been set.

The couple's lawyer wants the tape reviewed to dispute prosecutors' claims.

By LARRY DOUGHERTY

© St. Petersburg Times, published January 18, 2000

photo
A taped conversation is the latest battle for Steven and Marlene Aisenberg. [Times photo]
TAMPA -- Nothing about the criminal case of Steven and Marlene Aisenberg has been routine, and perhaps the best proof was in last week's legal gyrations involving a cassette tape.

Not once but twice, combative Tampa defense lawyer Barry Cohen filed one of the government's own secret tape recordings of the Aisenbergs in an attempt to get the judge to determine whether federal prosecutors were honest about the tape's contents.

The Aisenbergs are accused of lying about the disappearance of their 5-month-old daughter, Sabrina, in 1997.

Cohen claimed the tape did not contain what prosecutors said it did -- Steven Aisenberg admitting he hurt his daughter and blaming cocaine. The cocaine comment was an explosive accusation made by a federal prosecutor in a Maryland courtroom, but it was not included in the indictment.

Cohen and his defense team asked a judge, who already had told prosecutors to be specific about the tape's contents, to listen to the tape and decide for himself. It was an unusual request, local defense lawyers say, because such decisions are usually left to jurors.

But given the impact of pretrial publicity on potential jurors, the lawyers said, it could be a step worth taking.

U.S. Magistrate Judge Mark A. Pizzo balked, ordering the tape returned to Cohen, effectively blocking its public release, even though it had been in a public file, which generally means it would have been open to public inspection. That prompted objections from lawyers representing newspapers and a TV station trying to obtain the tape.

Federal prosecutors, meanwhile, aren't talking.

The debate prompted some intriguing questions. What is on the tape? Who is telling the truth? And why shouldn't the public hear it?

"It's hard to know whom to believe -- it's obvious that one side is inaccurate," said George Tragos, a Clearwater lawyer and a former federal prosecutor.

Attorneys for the Aisenbergs declined to comment. The U.S. Attorney's Office was closed Monday for the Martin Luther King Jr. holiday, and no spokesman could be reached. Federal prosecutors typically refrain from commenting on pending cases.

The question of what one tape contains -- investigators recorded 214 tapes during three months of eavesdropping at the Aisenbergs' Brandon house -- will ultimately be decided by a jury, Tragos said.

In the meantime, a judge's perception of what's on a given tape might not be as important as the public's. People who will one day be jurors are exposed to every bit of pretrial maneuvering.

"Barry (Cohen) is very cognizant of ethical rules that say attorneys can't try their cases in the press," said Steve Crawford, a former federal prosecutor now in private practice in Tampa. "He knows that if he files a pleading in open court, it's fair game, and it can be just as good, if not better, than filing a press release."

Crawford suggested Cohen is responding to a federal system that lets prosecutors release most of the information about a pending criminal case.

"I've been appalled at what I've called press release indictments, which contain surplus language that does nothing other than inflame," Crawford said.

Prosecutors "stand back and say to defense lawyers that you can't say anything about the case other than your clients aren't guilty," Crawford said. "I've always thought that was grossly unfair."

The Aisenbergs are charged with lying to police about such things as their reactions to the news their daughter was missing, and what clothes they were wearing when they learned she was gone.

Yet the indictment quotes secretly recorded conversations that imply Steven Aisenberg harmed his daughter and Marlene Aisenberg helped cover it up.

While it's important to hash these issues out, lawyers said, things shouldn't get out of hand.

"Magistrate Pizzo has to make sure this doesn't become a circus, and that we don't have public discussion and debate over the tapes until the appropriate time, which is trial," Crawford said. "Judge Pizzo, somewhat conservatively, decided to keep the tape out of the public record."

Tragos said it is common in federal court for judges and lawyers to seal sensitive evidence. But Pizzo's decision last week brought protests from lawyers for the St. Petersburg Times, the Tampa Tribune and WFLA Channel 8, who filed unsuccessful motions to make the tape public.

"Ordinarily, such an exhibit becomes public information," said Tom McGowan of the St. Petersburg firm of Rahdert, Anderson, McGowan & Steele, which represents the Times on First Amendment issues. "The Aisenbergs know what's in there. The experts know. The transcript of the tape is reported in the motion. The only thing that is secret is the nuances, and the way things sound. "When you apply the First Amendment test, I don't see how any harm can be done, how justice can be stopped" by unsealing the tape, McGowan said.

-- Larry Dougherty can be reached at (813) 226-3337 or dougherty@sptimes.com

By LARRY DOUGHERTY

© St. Petersburg Times, published February 5, 2000

TAMPA -- Steven and Marlene Aisenberg were back in federal court Friday, but there was little progress in setting a date for their trial on charges they lied about the disappearance of their infant daughter, Sabrina, in 1997.

Defense attorneys said their preparations have been slowed by difficulties discerning the contents of more than 200 tapes of conversations that investigators secretly recorded of the Aisenbergs. One Aisenberg attorney, Todd Foster, compared listening to them to "trying to interpret an ancient language."

For their part, prosecutors said they had taken pains to identify which portions of the tapes contained the most explosive comments that were recited in an indictment against the Aisenbergs last fall: that Steven Aisenberg harmed his daughter and Marlene Aisenberg helped her husband cover it up.

The couple deny all wrongdoing and say their daughter was kidnapped from their Brandon home. She has never been found, despite an extensive search by sheriff's deputies.

After investigators conceded they had insufficient evidence to charge the couple with the baby's death, they charged them with lying to police about the disappearance.

The couple did not speak during the hearing. It was their first time before U.S. District Judge Steven D. Merryday, who will preside over their trial.

Defense attorneys said a trial date in June would be too early. They cited their difficulties in examining the tapes. They also indicated that they plan to file extensive motions challenging the legal basis for the secret taping of the couple's conversations in their kitchen and bedroom.

By LARRY DOUGHERTY

© St. Petersburg Times, published February 19, 2000

TAMPA -- In defense motions filled with scathing attacks, attorneys for Steven and Marlene Aisenberg claim investigators broke the law by secretly taping the couple's conversations about their missing daughter, Sabrina.

The motions, released Friday, seek the removal of 200 secretly recorded audio tapes from evidence and accuse the lead prosecutor and detective in the case of staging a "rush to indict."

Investigators manipulated the grand jury, sicced child-abuse investigators on the Aisenbergs and orchestrated media leaks to guarantee they would be charged, the motions state.

The couple is scheduled to stand trial in July on charges of lying about the disappearance of 5-month-old Sabrina, who has never been found. They deny any wrongdoing.

The 16 motions span more than 300 pages and give a glimpse into law enforcement's exhaustive search to find Sabrina after her parents reported her missing from their Brandon home on a Monday morning in November 1997.

Police tested the concrete slabs of eight houses built by Steven Aisenberg's employer, looking for the girl's body. They studied soil clinging to a shovel in the Aisenberg's garage and speculated it had come from a construction site.

The Aisenbergs' lawyers faulted investigators for focusing on those leads and excluding others that suggested someone outside the family was responsible. According to the motions, a neighbor with an 8-month-old-daughter reported a possible break-in attempt the same week Sabrina disappeared and an unidentified blond hair was found in Sabrina's bedding.

Investigators bugged the Aisenberg home in the days after the disappearance, and those tapes are at the center of the federal charges against the couple. In the motions filed Friday, defense attorneys accuse investigators of misinterpreting the conversations on those tapes, and of misleading the grand jury and the judge who had authorized the eavesdropping.

The motions faulted Hillsborough sheriff's detective Linda Burton for telling Marlene Aisenberg, on the day she reported Sabrina missing, that Burton thought she was responsible. The motions noted that in 1987 Burton received a letter of counseling for falsifying information. No further information was available Friday on that charge.

The motions quoted judicial opinions critical of lead federal prosecutor Stephen Kunz for his handling of several cases in Jacksonville.

There was little response from the investigators.

"Some tactics are designed to attack the prosecutors; others are to focus on the facts," said Monte Richardson, a spokesman for the U.S. Attorney's Office. "We are here to focus on the facts of this case."

Debbie Carter, a spokeswoman for the Sheriff's Office, declined to comment.

Court clerks declined to release some exhibits attached to the motions, including the key affidavit in support of the eavesdropping, until a judge has a chance to review them.

The principal thrust of the defense motions attacked the legal basis for the eavesdropping devices in the couple's kitchen and bedroom. Chief Hillsborough Judge F. Dennis Alvarez signed the order allowing the taps on Dec. 12, 1997, two weeks after Sabrina was reported missing.

The judge issued the order after evaluating sworn statements from Burton and Detective William Blake. Defense attorneys accuse Burton of misstating such facts as the security arrangements in the Aisenbergs' house and the amount of baby food they had on hand in an effort to make the couple look guilty.

The defense motions say that when it came time to renew permission for the bugs, investigators twisted the couple's recorded statements to make them appear more sinister and justify more taping. The defense says Marlene Aisenberg is recorded saying, "That's just what they said," on one tape. Investigators claim she said, "What if they check the shed."

The motions also attack the tapes on the grounds they violated the couple's legal privileges to speak confidentially as husband and wife and to speak in confidence with their lawyers.

A separate 84-page motion sought dismissal of the case for investigative and prosecutorial misconduct. It accuses federal prosecutors of dragging the Aisenbergs in front of the federal grand jury just to make them look bad, because the couple already had indicated they were going to plead the Fifth Amendment.

It says a reporter was leaked information that Steven Aisenberg had been accused of a sexual assault years before in Virginia.

Local defense attorneys had different reactions to the motions. Although he didn't think the Aisenbergs' allegations of prosecutorial misconduct would meet the high legal standard required to dismiss charges, former prosecutor John Fitzgibbons said the Aisenbergs' concerns about their marital and legal privileges "might be interesting."

Former prosecutor Steve Crawford said the allegations the Aisenbergs were forced to take the Fifth in front of the grand jury were, if true, "offensive as hell."

-- Times staff writers Kathryn Wexler and Linda Gibson contributed to this report. Larry Dougherty can be reached at (813) 226-3337 or dougherty@sptimes.com.

Prosecutors will seek to shut off talk outside the courtroom following defense comments to the media.

By LARRY DOUGHERTY

© St. Petersburg Times, published March 28, 2000

TAMPA -- Federal prosecutors intend to seek a gag order barring attorneys and others involved in the Aisenberg case from making comments outside the courtroom.

Prosecutor Steve Kunz said the government was seeking the motion in response to recent comments Aisenberg defense attorneys made to WFLA AM-970 radio and the St. Petersburg Times.

Kunz made the comments Friday afternoon at a hastily called hearing in the case. In addition to the gag order, Kunz said he will seek sanctions against lead defense attorney Barry Cohen for the recent radio interview. Sanctions are a legal penalty imposed by a judge that can involve fines.

Cohen declined to comment Monday. "I will respond in writing," he said.

In seeking the gag order, Kunz cited a local rule of the federal courts that bars attorneys and others in pending criminal cases from making comments outside the courtroom. A spokesman for U.S. Attorney Donna Bucella declined to elaborate Monday. "If we file one, it will say why," said the spokesman, Assistant U.S. Attorney David Rhodes.

Steven and Marlene Aisenberg are awaiting trial on charges they lied to investigators about the 1997 disappearance of their 5-month-old daughter, Sabrina. She has not been found.

Also at Friday's hearing, the judge said he might have to decide whether prosecutors' secret tape recordings of the Aisenbergs are audible enough to be useful to the jury. The defense has long contended they are not.

The sound quality of the tapes is "something that may or may not have to be decided," said U.S. Magistrate Mark Pizzo.

-- Times staff writer Larry Dougherty can be reached at (813) 226-3337 or dougherty@sptimes.com.

The incident, five blocks from their home, should have been examined more, a motion states.

By LARRY DOUGHERTY

© St. Petersburg Times, published March 30, 2000

TAMPA -- Defense attorneys for Steven and Marlene Aisenberg claim in a legal motion filed Wednesday that authorities failed to properly investigate an attempted break-in close to the couple's home three days before they reported their infant daughter's disappearance.

The break-in attempt should have focused suspicion away from the Aisenbergs, the motion states.

Coming on top of another reported break-in attempt in the neighborhood, an unidentified boot print on their daughter Sabrina's crib skirt and the report of a dog barking, defense attorneys argue that investigators mistakenly failed to consider a suspect outside the Aisenberg household.

An affidavit filed in federal court Wednesday quotes Terry Desmond, a man who lives five blocks from the Aisenbergs' former Brandon residence. He states that someone bent back a screen on a rear window close to where his 4-month-old boy was sleeping.

Desmond didn't report the incident until after Sabrina Aisenberg was reported missing on Nov. 24, 1997. He gave a report to a sheriff's deputy but became concerned when deputies never dusted the window for fingerprints.

The Aisenbergs are awaiting trial on federal charges of lying about Sabrina's disappearance. Authorities suspect the couple of harming the girl, but concede they lack evidence to file a homicide charge. Sabrina has never been found.

A spokesman for the U.S. Attorney's Office said Wednesday that federal prosecutors would reply to the Aisenberg motions in court or in written filings. The Aisenbergs' lawyers won't comment. Wednesday's motions were filed to supplement earlier motions aimed at throwing out hundreds of secretly made government tapes of the Aisenbergs talking in their kitchen and bedroom.

The eavesdropping was authorized on the basis of sworn testimony from investigators. The Aisenbergs' attorneys, Barry Cohen and Todd Foster, contend that investigators lied when they claimed there was no unusual activity in the neighborhood at the time of Sabrina's disappearance and did so to justify eavesdropping. In fact, the motions argue, "numerous other investigative leads remained to be pursued which strongly indicated the presence of an intruder ... unidentified fingerprints found at points of entry to the Aisenberg home, unidentified hairs found in Sabrina's crib sheet, an unidentified footprint found at the foot of Sabrina's crib on the bed ruffle, an attempted break-in to another neighbors' (Tom and Maureen Hayward) home where an infant lived, a (sheriff's) dog track indicating that Sabrina was taken across the Aisenbergs' back yard, as well as another Aisenberg neighbor reporting her dog barking in the middle of the night and yet another neighbor reporting headlights coming into the Aisenberg cul-de-sac in the very early morning hours of the day of the disappearance."

The Aisenbergs were scheduled to go to trial in July, but defense attorneys recently indicated they plan to seek a postponement, citing the large number of tapes to evaluate.

-- Larry Dougherty can be reached at (813) 226-3337 or dougherty@sptimes.com.

By LARRY DOUGHERTY

© St. Petersburg Times, published April 1, 2000

TAMPA -- Federal prosecutors filed a motion Friday seeking sanctions against lead Aisenberg defense attorney Barry Cohen, saying he violated court rules by discussing the case in radio and newspaper interviews.

In addition to the sanctions, which sometimes carry a fine, the motion requests a gag order barring all the Aisenbergs' defense lawyers from commenting on the case outside the courtroom.

The motion accuses Cohen of "reprehensible conduct." It claims he intentionally misstated the evidence in an attempt to convince potential jurors of the innocence of Steven and Marlene Aisenberg. They are awaiting trial on charges of lying about the disappearance of their infant daughter Sabrina in Hillsborough County in 1997.

Interviewed Friday, Cohen said only that "I'll deal with the government in the appropriate forum at the appropriate time."

The motion marked the latest blow in the unusually combative relations between the prosecution and the defense in the Aisenberg case. Cohen and co-counsel Todd Foster have filed motions accusing prosecutors of misconduct and claiming investigators staged a rush to judgment.

In response, prosecutors Steve Kunz and Rachelle Bedke wrote Friday that Cohen and Foster have manufactured an "intruder defense" designed to sway public opinion. Friday's motion gave several examples:

There was no blond hair found in the crib of the dark-haired Sabrina, as Cohen has claimed -- the hair that was found might have proved to be Sabrina's, if any sample of her hair remained.

And the unidentified "shoe print" that Cohen cited as evidence of an intruder in the house actually was found on a part of the crib skirt that was off the floor, behind crib bars -- not in a place any intruder could have walked the night Sabrina disappeared.

In seeking the sanctions, prosecutors argued that Cohen had violated a "local rule" adopted by the federal courts in Central Florida that bars all involved lawyers from commenting on pending criminal matters outside the courtroom. As evidence of Cohen's unauthorized communication with the media, they cited interviews he gave to WFLA-AM 970 and the St. Petersburg Times.

Cohen will have a chance to respond to the accusations before the judge decides on the request for sanctions.

At a hastily called hearing Friday morning at which motion deadlines were discussed, Cohen asked U.S. District Judge Steven D. Merryday to take the Aisenbergs' case off the July trial docket. Merryday did not rule on the motion, but he did say he wouldn't force the Aisenbergs to go to trial until they and their lawyers were ready.

By LARRY DOUGHERTY

© St. Petersburg Times, published April 6, 2000

TAMPA -- A neighbor of Steven and Marlene Aisenberg's reported hearing a baby's cry the morning the couple said their daughter Sabrina was kidnapped, according to a motion filed Wednesday by the Aisenbergs' defense attorneys.

Peter McDonald recalled thinking to himself, "That's a baby crying. That can't be, it's 1 in the morning. It's pitch black. Then it stopped. I thought it must have been a cat."

McDonald's house is six doors from the Aisenbergs' former Brandon residence. Behind McDonald's house is an 8-acre pond that sheriff's divers searched in the wake of 5-month-old Sabrina's disappearance. Her parents are charged with lying to police about it.

The Aisenbergs' defense attorneys, Barry Cohen and Todd Foster, filed an affidavit by McDonald in federal court Wednesday. In an accompanying motion, the attorneys argued that the affidavit is grounds to throw out the tapes investigators secretly recorded of the Aisenbergs talking.

The rationale of the defense motion is that when sheriff's detectives applied for the eavesdropping order, they lied to a judge when they said there were no signs of unusual activity in the neighborhood when Sabrina disappeared, and thus warranting a more intrusive investigation.

McDonald, a 55-year-old salesman for Haverty's Fine Furniture, said he heard the cry after his dog begged to go out the back door. He said his house is on the route someone would have to take to leave their subdivision without climbing a fence or wall.

McDonald said that when he attempted to report the cry later that day, he was met with indifference by sheriff's deputies. He said he was never called before the federal grand jury that investigated the Aisenbergs' case. McDonald said he and his wife were friendly with the Aisenbergs but did not socialize with them.

Neither federal prosecutors nor the defense attorneys are commenting on the case outside court.

-- Larry Dougherty can be reached at (813) 226-3337 or dougherty@sptimes.com

But he partially grants three motions for the couple accused of lying about their baby's disappearance.

By LARRY DOUGHERTY

© St. Petersburg Times, published April 27, 2000

TAMPA -- A U.S. magistrate has denied or recommended denial of 13 motions filed by defense attorneys for Steven and Marlene Aisenberg, who are awaiting trial on charges of lying about the disappearance of their daughter Sabrina in 1997.

Most of the motions concern legal objections to the charges filed by the government last year.

The judge, U.S. Magistrate Mark A. Pizzo, partially granted three defense motions. One concerned a request to exceed a 20-page limit for written motions. One was a request to obtain information about polygraph tests that law enforcement administered to the Aisenbergs shortly after they reported Sabrina missing. The third sought the right to file additional pretrial motions as developments dictate.

There was no ruling Wednesday about two of the Aisenbergs' most provocative motions. One of those seeks dismissal of the charges on claims of prosecutorial misconduct before the grand jury. The other asks the judge to throw out secretly made tapes of the Aisenbergs talking in their former Brandon residence, claiming law enforcement lied to obtain a judge's permission to make the tapes.

The Aisenbergs are scheduled to go to trial in July. But defense attorneys have asked the judge for a later date.

Despite a massive search of Brandon neighborhoods and lakes, investigators never found Sabrina. They say they think the couple harmed their daughter. But authorities acknowledge they lack the evidence to bring a murder charge against the couple.