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Judge denies bid by prosecutors to punish Aisenbergs' attorneys

Published Sep. 27, 2005

A federal judge decided Tuesday not to grant a request by prosecutors to punish Steven and Marlene Aisenberg's defense attorneys for talking to the media.

But the judge did warn lawyers on both sides to heed the local rules limiting such statements.

"There are things in this case that stand out as provocations on both sides," said U.S. District Judge Steven D. Merryday. "I caution you all."

As one example, Merryday cited the prosecution's filing of an unusually detailed 27-page indictment against the Aisenbergs, who stand accused of lying about the disappearance of their 5-month-old daughter, Sabrina, in 1997.

Sabrina has never been found. The Aisenbergs say she was kidnapped by someone who crept into their Brandon home at night. Investigators think the couple killed the child, but they have not gathered enough evidence to bring a murder charge.

Merryday did not rule directly on the interviews that touched off the prosecutors' request that he punish the defense attorneys and issue a gag order.

Lead defense attorney Barry Cohen gave the interviews to WFLA-AM 970 radio, to the Today show and to the St. Petersburg Times.

The judge asked about an exception to the rule that prosecutors have cited as allowing them to hold a news conference when they announce an indictment. Attorneys for the Tampa Tribune argued against the imposition of a gag order on any party in the trial. Merryday declined to enter a gag order Tuesday.

Also on Tuesday, Merryday discussed how he might listen to the government's secretly recorded tapes of the Aisenbergs talking in their kitchen and bedroom to ascertain whether they are of sufficient quality to play for the jury.

Defense attorneys have been arguing for months that the tapes are not intelligible. They recently introduced the affidavit of an audiotape expert who said many of the supposedly damning passages in the tapes are unintelligible. Defense attorneys want the judge to listen to the tapes in a public hearing.

Prosecutors maintain the tapes are of adequate quality for the jury to hear them. The prosecutors want the judge to listen to them in secret rather than in a public courtroom, claiming they are sensitive evidence that should not be disclosed before trial.

The judge said he expected to issue an order soon addressing the audibility of the tapes.

Prosecutors and defense attorneys declined to comment after Tuesday's hearing.