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

Had Joe Gersten himself been here to orchestrate events minute by minute, it's unlikely the Great Subpoena Caper could have unfolded more bizarrely. It seems clear, though, that Dade County's favorite former-commissioner-in-exile hoped for some sort of incident, some type of media mayhem that would spring from his most recent effort to publicly humiliate the State Attorney's Office. But this latest twist is probably more than he ever could have hoped for.

Gersten's history is well-known. In April 1992, he reported his car stolen from his Coral Gables home. But when the thieves were caught, they said they swiped it from Gersten while the commissioner was in a drug den off Biscayne Boulevard, smoking crack with a hooker. Since then Gersten has refused to answer prosecutors' questions about that night. Recently the Florida Bar began its own investigation to determine whether Gersten A who left South Florida more than six months ago and is facing contempt of court for not testifying about the incident A should be disciplined or even disbarred for his conduct. Gersten, together with his attorney, Carmen Calzon, hatched an idea: They would use the Bar proceedings as a way of attacking prosecutors.

Gersten wanted the two prosecutors most responsible for making his life miserable A Chief Assistant State Attorney Michael Band and Richard Gregorie, who is now an assistant U.S. attorney A subpoenaed to testify at one of the Bar hearings. Calzon would then be provided the unique opportunity to grill the prosecutors under oath, ostensibly to reveal their alleged malice toward Gersten but also perhaps to ferret out any evidence the state had gathered thus far. At the very least, Gersten and Calzon could inflict some measure of aggravation upon Band and Gregorie.

Television coverage would be nice. Place the prosecutors under the bright lights and show them on the six o'clock news being served with subpoenas, as if they were the criminals. "I talked to [Channel 7 reporter] Carmel Cafiero," Calzon explains. "She regularly calls me to see what's going on in the case." The last time Cafiero called, Calzon explained her plan to subpoena Band and Gregorie. "She asked if she could come along," Calzon adds, "and I said, 'Hey, I don't care. It's a public building.'"

So on Friday, March 4, Calzon, Cafiero, and her cameraman gathered in the lobby of the Dade State Attorney's Office. Also present was the most important actor in this staged bit of drama: the process server, Jose Lopez-Trigo, who on cue would shove the subpoenas into the hands of the hapless prosecutors.

The foursome rode the elevator to the second floor, where Michael Band's office is located. When told he was meeting with his boss, Dade State Attorney Katherine Fernandez Rundle, the pack trooped up to the fourth floor and told Rundle's secretary to send out Band so he could be served his subpoena. Band refused to leave his meeting, and the group was asked to wait downstairs in the lobby.

At one point Band's secretary came down and offered to accept the subpoena in his behalf, but Gersten's attorney was adamant: Band had to receive it himself, otherwise there would be no way to guarantee that he would see it in time for the Bar hearing, which was scheduled for Monday, March 7. The group waited more than two hours until they were finally told that Band had gone home. The day wasn't a total loss, however; the camera crew did record Gregorie receiving his subpoena.

Gersten's attorney, of course, still wanted Band to be served. "So that night," Jose Lopez-Trigo says, "I went out to Michael Band's house." But how did he obtain Band's unlisted home address? "It's my job," responds 29-year-old Lopez-Trigo, who has been a process server since 1991. Pushed for more details, Lopez-Trigo claims that in January, while serving a subpoena in a residential neighborhood of Miami Beach, he spotted Band, who he says he recognized. The prosecutor was walking up to the front door of a house, and Lopez-Trigo assumed that must be where Band lived.

After his frustrating experience at the State Attorney's Office, Lopez-Trigo says he didn't want to risk missing Band, so he waited until about 10:30 p.m. to make his move. Riding along with him was 31-year-old Ibis Hernandez, a rookie process server whose swearing-in ceremony had taken place just the day before.

With his car engine running, and Hernandez waiting nervously behind the wheel, Lopez-Trigo knocked on Band's front door. Moments later, barefoot and dressed only in a gray bathrobe, Band answered. "I said, 'I'm the process server that tried to serve you at the State Attorney's Office for two hours but you wouldn't come down, so I'm here to serve you now,'" Lopez-Trigo says, adding that he then read Band the basic contents of the subpoena A the date, place, and time when Band's presence was required.

According to Lopez-Trigo, Band screamed, "Fuck you!" and slammed the door in his face. The process server claims he then placed a copy of the subpoena in the screen door, turned around, and began walking back to his car. "At that point he's served," he explains. As Lopez-Trigo walked toward the car, Hernandez says she saw Band come flying out of his house. "I yelled, 'Watch out!'" Hernandez recalls.

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."

Gersten attorney Carmen Calzon denies that her client in any way masterminded the episode, though she says the former county commissioner has been kept apprised of recent developments: "His reaction is that he feels Mr. Band's conduct substantiates what he has been saying all along A that Mr. Band has long been abusing his position of power." (Calzon reports Gersten is currently in Australia on business and may return to Dade County "in about a month or so.")

At the Bar hearing March 7, Band and Richard Gregorie refused to testify, citing their roles in the continuing criminal investigation of Gersten. The hearing was closed to the public, and so the tenor of the deliberations is unknown. In the wake of the subpoena showdown, however, one thing is certain: Ibis Hernandez's budding career as a process server is over. "This was my first on-the-job experience, and no amount of money is worth this hassle," she says, caustically noting that process servers receive only fifteen dollars for each subpoena they deliver. "Do you really think fifteen dollars is worth all of this

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