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Grand jury transcripts to remain sealed

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Grand jury transcripts to remain sealed

  • The U.S. Court of Appeals in Atlanta (11th Cir.) overturned a federal district court order that would have released grand jury transcripts in the flawed investigation of Steven and Marlene Aisenberg.

Feb. 9, 2004 — A federal appeals court last week overturned a U.S. district court order to release grand jury transcripts, saying the materials would give the perpetrator of a kidnaping six years ago “a virtual roadmap to evade detection and capture.”

A three-judge panel of the U.S. Court of Appeals in Atlanta (11th Cir.) further held on Feb. 6 that because much of the “troublesome events” in the case are already widely known, the public does not need any additional details from the grand jury transcripts.

Barry Cohen, attorney for the plaintiffs, told the Tampa Tribune that the ruling “totally interferes with the public’s right to know.”

In November 1997, Steven and Marlene Aisenberg notified police that their 5-month-old daughter was abducted from their home in Valrico, Fla. However, the county sheriff’s office suspected that the Aisenbergs were responsible for the disappearance, and got a court order to wiretap the couple’s home. Prosecutors presented the recordings to a grand jury, which returned a six-count indictment against the Aisenbergs in 1999.

Prosecutors had said the couple’s taped conversations contained incriminating evidence.

After listening to the tapes and studying the evidence, U.S. Magistrate Judge Mark Pizzo disagreed. He issued a report in February 2001 that said investigators “deliberately or with reckless disregard summarize(d) conversations out of context.” A week later, Judge Steven Merryday of U.S. District Court in Tampa, Fla., dismissed the indictments.

In January 2003, Merryday awarded the Aisenbergs nearly $2.7 million in attorney’s fees and litigation expenses under the Hyde Amendment, which allows criminal defendants to seek legal fees in cases involving “egregious prosecution misconduct.” The government did not contest that ruling.

And because the government had to pay those fees, Merryday also ruled in favor of releasing transcripts of the grand jury investigation — even though the U.S. Supreme Court has held that there is a presumption that grand jury transcripts are closed to the public.

A group of media organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief urging the court to release the transcripts. “Grand jury secrecy was never intended to shield the misconduct of overreaching and overzealous prosecutors,” the brief said.

The federal appeals panel last week reversed Merryday’s ruling. Because the conduct of investigators and prosecutors has already been publicly aired, the appellate court held, there is no value in releasing the grand jury transcripts. It further ruled that future witnesses may be reluctant to testify before the grand jury about this crime if the secrecy of the proceedings is now broken.

The court recognized that law enforcement authorities have long said that they have no new leads in the case.

The appeals panel also lowered the award for attorney’s fees by nearly $1.2 million.

It’s a decision that has media attorneys scratching their heads.

“We don’t know what (prosecutors) presented to the grand jury,” said James Lake of Holland & Knight in Tampa, which represented the media groups in their amicus brief to the U.S. District Court. “Did they present inaccurate transcripts? We don’t know that, and we won’t without knowing what the grand jury was told.”

The Aisenbergs have brought civil lawsuits against the state of Florida, Hillsborough County, federal prosecutors and investigators.

(United States v. Aisenberg; Counsel: Barry Cohen, Tampa) JL

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© 2004 The Reporters Committee for Freedom of the Press

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