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A panel of Atlanta’s federal appeals court has approved an award of $1.3 million in attorney fees to a Florida couple because of the federal government’s bad-faith prosecution of them in a case involving the disappearance of their 5-month-old daughter. The U.S. Justice Department declined to contest the claim of bad faith, which was made under a 1997 law that allows defendants to recover attorney fees when they are the subjects of unwarranted criminal charges. The law, known as the Hyde Amendment, requires defendants to have been exonerated of a criminal charge, have retained counsel that they are paying for, have a net worth of less than $2 million and prove that the prosecution was “vexatious, frivolous, or in bad faith.” But the Feb. 6 ruling by the 11th U.S. Circuit Court of Appeals panel was far from a complete victory for the couple, Steven and Marlene Aisenberg. The panel cut the couple’s attorney fee award granted by a lower court from $2.7 million to $1.3 million. And in a blow to news organizations and the couple’s attorneys who are mounting a suit against law enforcement officials, the panel reversed a lower court judge’s order that grand jury transcripts be released to the public. Writing for the panel, 11th Circuit Judge Frank M. Hull concluded that “the public and the Aisenbergs have a strong interest in any bad-faith prosecutions being fully exposed.” But the panel decided that extensive reviews in lower courts and by a special state prosecutor “exhaustively examine the evidence of the government’s conduct and elucidate in great detail the troublesome events in this case.” As a result, Hull wrote, grand jury transcripts, which are almost always kept secret, should remain so in this case. U.S. v. Aisenberg, No. 03-10857. Steve Cole, a spokesman for Tampa U.S. Attorney Paul I. Perez, said the office would not comment on the decision, and a comment from the Aisenbergs’ attorney, Barry Cohen of Cohen, Jayson & Foster, could not be obtained by press time. SECRECY DISAPPOINTS MEDIA James B. Lake, a Holland & Knight partner who argued for the release of the transcripts for a host of news organizations, including the Tampa Tribune and the Reporters Committee for the Freedom of the Press, said he was disappointed with the decision. “The grand jury secrecy requirement was never intended to hide such government misconduct from public scrutiny,” Lake had argued in his brief to the court. On Tuesday, Lake said the transcripts would help the public identify the officers from either the local sheriff’s office or the U.S. attorney’s office who were responsible for the government’s misconduct. “We don’t know who was involved,” Lake said. Coincidentally, Judge Charles R. Wilson of the 11th Circuit was the U.S. attorney in Tampa throughout the investigation into the Aisenbergs. Wilson, who joined the court in 1999, was in Atlanta on Tuesday taking part in the court’s en banc session and could not be reached to discuss the case. Wilson was not on the 11th Circuit panel that issued the Aisenberg decision. Judge Susan H. Black and Senior Judge Emmett Ripley Cox sat on the panel with Hull. BABY’S DISAPPEARANCE The panel dealt with the strange case of the Aisenbergs, whose five-month-old daughter Sabrina disappeared from their home in November 1997. According to a January 2003 decision by Judge Steven D. Merryday of the U.S. District Court in Tampa, Marlene Aisenberg reported Sabrina’s disappearance in an early-morning 911 call on Nov. 24, 1997. The girl is still missing. Officers with the Hillsborough County sheriff became suspicious of the couple within a few weeks of the girl’s disappearance and received permission from a local court to place electronic listening devices in their home and on their telephone lines, Merryday reported. Based on the intercepts, the couple’s September 1999 indictment suggested that Steven Aisenberg was responsible for Sabrina’s death and that Marlene Aisenberg was unwilling to share legal responsibility for her husband’s alleged acts, Merryday wrote. But the couple was charged only with making false statements to law enforcement officials. Federal prosecutors provided Merryday with 32 compact discs they said included conversations between the couple that strongly proved their guilt, Merryday wrote. But after listening to the discs, the judge concluded, “I heard none of it. I heard many audible utterances, none of them decidedly and reliably inculpatory.” When Merryday listened to the recordings again, he compared the government’s transcripts with the transcripts provided by the Aisenbergs’ defense team. “The disparity was shocking,” Merryday wrote. “The Aisenbergs’ transcripts were much closer to what I heard.” Merryday called the government’s concession to the “vexatious, frivolous, or in bad faith” claim “unprecedented.” Based on claims by the Aisenbergs’ attorneys that they worked 11,252 hours on the case at rates from $150 to $400 an hour, Merryday awarded the couple $2,680,602 in attorney fees and ordered the release of the grand jury transcripts. But on appeal, the 11th Circuit panel ruled, among other things, that the Hyde Amendment capped attorney fees at $125 per hour and ordered the reduction in the award. Even at $1.3 million, the award appears unusually high. In 1999, Justice Department statistics showed the government had paid out more than $90,000 to two exonerated criminal defendants, and had been ordered to pay $700,000 in four cases then on appeal. At the time, two years after the law was enacted, only 76 Hyde Amendment petitions had been filed, and the government had prevailed in 39 of them, according to the newspaper. Current statistics were unavailable from the Justice Department’s press office.

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