Service with a Smile

The simple act of delivering a subpoena can get tricky when it involves Joe Gersten and the prosecutor who is after him

Lopez-Trigo says he turned to find Band nearly on top of him: "He was running full force at me. He put his hands on my chest and pushed me." Band, he claims, knocked him into his car, a 1983 Chrysler New Yorker, and at the same time grabbed from his hand the original subpoena. Lopez-Trigo asserts that when Band allegedly assaulted him, the prosecutor screamed, "Who the fuck are you?" and "How did you get my home address?" Band, who stands five feet eleven inches tall, also reportedly called the five-foot-four-inch Lopez-Trigo a "shrimp" and an "asshole."

"The guy was in a rage," Lopez-Trigo says. "He even tried to rip the tag off the car." Hernandez and Lopez-Trigo both claim Band went to the rear of the car and began yanking on the license plate. "I was in shock," Lopez-Trigo states. "I was just standing there watching this. I'm an officer of the court."

Hernandez shared Lopez-Trigo's disbelief: "He was very upset. We were watching this man ranting and raving. Then he ran back into his house."

Within minutes the incident was over. The two process servers drove a few blocks to St. Francis Hospital, where Lopez-Trigo made several phone calls. In addition to calling attorney Carmen Calzon, he contacted the Miami Beach Police Department and claimed he'd been attacked. (Assaulting a process server is a felony.) A dispatcher told Lopez-Trigo to return to Band's house, where an officer would meet him to take a report. A patrol car arrived a little after 11:00 p.m.

Lopez-Trigo and Hernandez say initially the officer was friendly and helpful. But as soon as he discovered that the suspect was an assistant state attorney, they contend, he turned against them. Says Lopez-Trigo: "Immediately everything changed."

While the officer took their statements, Lopez-Trigo and Hernandez say Band stood in the background and made faces at them. "He was sticking his tongue out at us," Lopez-Trigo claims. At some point Band's wife, a Miami Herald staff photographer, came outside and returned the original subpoena her husband had taken from Lopez-Trigo.

Eventually Lopez-Trigo and Hernandez went to a pay phone and again called Gersten's attorney to report what had happened. They also notified a court officer who acts as a liaison between judges and process servers. She reportedly urged Lopez-Trigo to go to the Miami Beach Police Department headquarters and demand that a more thorough statement be taken. At the station Lopez-Trigo and Hernandez were met by attorney Carmen Calzon and a hastily hired court stenographer. "I wanted to make sure I had a record of everything that transpired," Calzon says.

Although the original police report states that Lopez-Trigo did not complain of any injuries resulting from the incident, he was now asserting that he'd been hurt, and pointed to a reddish mark on his skin where he said he had hit the car. Police took pictures.

Lopez-Trigo also asked that police dust his license plate and the original subpoena for fingerprints as a way of verifying his claim that Band had touched them. Police officials refused. (The items were later turned over to a private investigator who is holding them as evidence.) Lopez-Trigo then demanded that the police return to Band's house and arrest him for felonious assault on a process server. Again the police refused and instead told Lopez-Trigo to file a complaint with the State Attorney's Office.

After several hours, an additional police report was completed and Lopez-Trigo, Hernandez, Calzon, and her weary stenographer left the station at about 5:00 a.m. From there Lopez-Trigo says he went to a Hialeah medical clinic to have his alleged injury examined. He has since hired an attorney, Alan Shuminer, who says he has not yet ruled out filing a civil lawsuit against Band.

The next morning, Saturday, March 5, Band called State Attorney Rundle to explain his version of the confrontation. Rundle says she agreed with Band that it would be impossible for her office to investigate one of its own prosecutors. On Monday she called Governor Chiles's office and asked that a special prosecutor be appointed to investigate the allegations of misconduct. She has also ordered her department's investigators to conduct an internal review of the matter.

Band refuses to discuss the incident publicly except to deny assaulting Lopez-Trigo and to promise full cooperation with the special prosecutor. Privately he describes a series of events that sharply contradicts Lopez-Trigo's statements, and he notes that his wife witnessed the encounter and will corroborate his scenario. (Band's wife, Marice Cohn Band, was out of town last week and could not be reached for comment.) Band adds that he is confident an investigation will quickly clear him of any wrongdoing.

State Attorney Rundle, meanwhile, has not dismissed the possibility that the entire affair may have been engineered by Gersten as a way of embarrassing her office. "I think we've been through a lot of unusual tactics on their side," she says. "To show up at someone's home at 11:00 p.m. on the face of it seems to suggest that they were trying to push some buttons or create an incident." Lopez-Trigo's allegations, she states, have not caused her to lose faith in Band. "I think Michael Band is extremely professional," she says, adding that she has no intention of removing him as the lead prosecutor in the ongoing Gersten investigation. "It may be that that might have been the interest of the other side," she says, "but I don't see the need to remove Mr. Band."

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