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U.S. tells Aisenbergs: Drop attorney By SARAH HUNTLEY of The Tampa Tribune
TAMPA - Federal prosecutors argue that prominent attorney Barry Cohen is too embroiled to represent the Aisenbergs.
On Jan. 26, 1998, just one day before appearing on ``The Oprah Winfrey Show'' to plead for their baby's safe return, Steve and Marlene Aisenberg went to the bank.
They set up an account to handle the donations that were pouring in from friends, relatives and heartbroken strangers. The money was supposed to help spur the search for Sabrina, the couple's chubby-cheeked infant.
But now, federal prosecutors say that a ``majority'' of the donations were used to pay the couple's top-gun defense attorney.
That attorney, Barry Cohen, is fighting to remain on the case, hoping to fend off charges that the Aisenbergs were involved in their daughter's disappearance and lied to make investigators believe she was kidnapped. A federal grand jury in Tampa charged Sabrina's parents Sept. 9 with seven counts of conspiracy and making false statements, nearly two years after they told detectives their 5-month-old baby had vanished from her crib.
Although the indictment does not include murder charges, prosecutors say that Marlene Aisenberg later talked about the baby being ``dead and buried'' and blamed her husband.
Allegations of improper use of the Sabrina donations are not new. The indictment accused the couple of transferring some money to their personal account to pay off their Sears and Discover credit cards. But prosecutors had not mentioned the issue of Cohen's defense fees.
That changed late Friday, when Assistant U.S. Attorney Stephen Kunz filed papers to have Cohen disqualified as the Aisenbergs' lawyer.
In the motion, Kunz said the Aisenbergs talked about problems they might have raising money if the public knew the cash was being used to pay their attorney. Kunz didn't say how much money was raised.
The government contends that Cohen and his partner, Todd Foster, cannot represent both Aisenbergs because there could be a conflict if one spouse wants to accept a plea deal or testify against the other. The Aisenbergs, who were released on bail after being arrested in Bethesda, Md., have said they understand the risks and still want a shared defense. A hearing is set for Oct. 15.
But Friday, Kunz also argued there may be problems with Cohen being involved in the case at all. Although prosecutors are ``not suggesting that defense counsel was part of any conspiracy or involved in any criminal activity,'' Kunz said Cohen became a ``transactional'' player by conveying the Aisenbergs' allegedly false leads to law enforcement officials.
Kunz said the Aisenbergs may want to argue that they were merely following the advice of their attorney. If that happens, he warned, Cohen could be called as a defense witness.
Cohen declined to comment on the motion or the allegations that donated money paid his fees.
``We now have a forum to fight our case, and that forum is the U.S. District Court,'' he said.
Other lawyers familiar with the issue say the government may be on shaky ground. Although the court can override the decision under some circumstances, defendants generally have a right to choose their counsel.
The government's motion does not state that prosecutors intend to call Cohen. If the defense wants to use Cohen as a witness, he could withdraw from the case.
``The prosecutor doesn't need to be telling the defense how to handle its case,'' Crawford said.
U.S. Magistrate Mark Pizzo, who cautioned the couple about the dangers of joint counsel earlier this week, gave the defense until Wednesday to file its response.
