By GRAHAM BRINK, Times Staff Writer
February 1, 2003
TAMPA -- Federal prosecutors have long known the government would be ordered to pay legal fees accumulated by Steve and Marlene Aisenberg, the couple once charged with lying about the disappearance of their infant daughter.
The only question was how much.
On Friday, U.S. District Judge Steven Merryday delivered his answer: $2.89-million.
The award is the largest in the five-year history of the Hyde Amendment, a federal law that protects defendants against prosecutorial abuses. It is short of the $7-million the Aisenbergs' lawyers sought but well above the $250,000 the government once suggested.
Merryday also ordered the release this month of all grand jury transcripts. He said the unusual move is warranted because the public has a right to know how the case went so awry.
In the 94-page order, the judge painted a grim picture of an investigation that lacked credible evidence. He referred to parts of the indictment as "trivial," "gratuitous" and "misleading."
Prosecutors asserted for months they had incriminating taped statements of the Aisenbergs when "no such 'taped statements' exist," the judge wrote.
"This is a devastating opinion for the government," said Tampa lawyer John Fitzgibbons, a former federal prosecutor who has followed the case. "He is saying it was a lousy prosecution from day one."
The award is not like one in a civil lawsuit that can be spent on anything. It must be used to pay for the Aisenbergs' legal bills.
Steve Cole, spokesman for the U.S. Attorney's Office in Tampa, said officials were reviewing the judge's order. He would not say whether they intend to appeal.
Barry Cohen and Todd Foster, the Aisenbergs' lead attorneys, were unusually quiet after reading the order. Cohen said he would comment next week.
The saga began on Nov. 24, 1997, when the Aisenbergs reported 5-month-old Sabrina missing from their Valrico home. A massive search ensued, but she was never found.
Hillsborough sheriff's investigators quickly suspected the couple and received a judge's permission to plant listening devices in the Aisenbergs' kitchen and bedroom. Nearly two years later, a grand jury indicted the Aisenbergs on charges of conspiracy and making false statements.
Prosecutors said the tapes contained dozens of incriminating statements, including Marlene telling Steve, "I hate you, I hate what you did to our tiny daughter." They said Steve could be heard saying, "I wish I hadn't harmed her. It was the cocaine."
The Aisenbergs' attorneys argued from the start that no such statements were made. They said many of the tapes were unintelligible and some statements were taken radically out of context. They also requested that the tapes be publicly released.
Prosecutors fought to keep the tapes secret until trial, something Merryday described Friday as a "strange resistance."
Merryday stated he tried to signal in an order filed in November 2000 that the evidence in the case was seriously in doubt. He wrote in that order that he found the tapes "largely inaudible." Despite the red flag, federal prosecutors pursued the case and insisted the tapes contained incriminating statements, he wrote.
A few months later, Magistrate Judge Mark Pizzo wrote a scathing report, describing parts of the investigation as bizarre, baseless, distorted and careless.
Pizzo said the limited number of tapes he listened to did not contain incriminating comments and recommended all tapes from the bugging be suppressed. The news gutted the prosecutors' case. They moved to drop all charges in February 2001.
On Friday, Merryday agreed with Pizzo and said he couldn't hear incriminating statements. He called the disparity between the government transcripts and what he could hear "shocking."
Merryday concluded prosecutors indicted the Aisenbergs solely on the hope the pressure would force one of the Aisenbergs to incriminate the other. Merryday called such a strategy "vexatious."
A month after the charges were dismissed, the Aisenbergs' attorneys filed a motion citing the Hyde Amendment, a law that allows federal criminal defendants to collect attorneys' fees from the government if the case was frivolous, vexatious or brought in bad faith.
In a surprise move, federal prosecutors conceded the Hyde Amendment applied to the Aisenberg case, the first such concession since the law went into effect in 1997. The two sides, however, remained miles apart on the price tag.
At a hearing in October, the Aisenbergs' attorneys argued their $2.34-million bill for working about 11,000 hours should be tripled to about $7-million because of the exceptional nature of the case and the egregiousness of the conduct.
For the most part, government attorneys did not contest the number of hours the defense lawyers said they worked. Nor did they say the firm's hourly rates were out of line with industry standards.
They argued the law was designed to reimburse defendants, not lawyers. The government should not have to pay any more than the $250,000 the Aisenbergs had paid toward their legal fees, they said. Or the government could pay the couple a capped rate of $125 an hour, they said.
Merryday wrote in his order the Aisenbergs' lawyers were entitled to "reasonable attorneys fees," not a capped amount. He cut about 300 of the hours but let the rest stand, stating they were not excessive for a case of this nature. He said the case did not warrant a tripling of the fees, but the many delays warranted him multiplying the fee by 1.15.
As for the grand jury transcripts, Merryday said the government should not shield the history of such a case behind the cloak of grand jury secrecy.
"The public has an interest in inspecting these troubled prosecutions to determine the source of the United States' misdirection," he wrote.
Complete transcripts of grand jury testimony almost never become public. Prosecutors present evidence to grand jurors, who decide whether an indictment is warranted.
Releasing the transcripts could give the Aisenbergs' attorneys a distinct advantage in the civil lawsuit they have indicated is forthcoming. They will be able to scrutinize everything the prosecutors told the grand jurors about the tapes and what could be heard on the tapes.
"Prosecutors are not supposed to misrepresent or overstate the evidence," former federal prosecutor Steve Crawford said.
If the grand jury transcripts are released, Fitzgibbons predicted several law enforcement officials would assert their Fifth Amendment rights against incriminating themselves if they are called to give sworn statements in the civil case.
"These transcripts could have catastrophic consequences for some law enforcement individuals," said Fitzgibbons, who added that he thought the appeals court would agree with Merryday's logic.
The two lead prosecutors in the case, Stephen Kunz and Rachelle DesVaux Bedke, still work for the Department of Justice. After the case imploded, the department's Office of Professional Responsibility opened an investigation into their conduct. Cole, the U.S. Attorney's Office spokesman, said they have not received word on the outcome.
The Hillsborough Sheriff's Office's two lead detectives, Linda Burton and William Blake, and Maj. Gary Terry, who oversaw the investigation, received written reprimands last year. None was demoted or docked pay.
One sheriff's detective is still assigned to the case full-time, and the Aisenbergs have not been ruled out as suspects, said Lt. Rod Reder, sheriff's spokesman.
Crawford, the former federal prosecutor, said Merryday's ruling rekindles questions about why the prosecutors and detectives haven't been fired.
"Someone needs to ask, hey, Justice Department, what's going on?" he said. "Hey, sheriff of Hillsborough County, why are they still working?"
-- Graham Brink can be reached at (813) 226-3365 or firstname.lastname@example.org .
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