In 1985, New York Judge Sol Wachtler famously told a newspaper that prosecutors could get a grand jury to "indict a ham sandwich" if they wanted to. That phrase has become a staple of legal punditry ever since, and with good reason. There is no place in the criminal justice system where a prosecutor holds more sway than the grand jury room.
There, in a proceeding that's off-limits to the public, the state makes its case without rebuttal. There are no defense witnesses or cross-examinations. The evidence is presented in secret — defense attorneys aren't told what the evidence is, nor can they object to it. The deck is stacked in the state's favor.
And yet, on Nov. 18, Orange-Osceola State Attorney Lawson Lamar failed to get a grand jury to indict Orlando police officer Fernando Trinidad of perjury and assault in charges stemming from a 2007 incident at a downtown nightclub. This despite such clear evidence of his guilt that even the Orlando Police Department's Internal Affairs division — which bends over backward to give accused cops the benefit of the doubt `see "Might makes right," July 10` — concluded that he violated department policy by pushing Jessica Asprilla down a flight of stairs and falsifying a police report to accuse her of, and arrest her for, battery on a law enforcement officer.
Asprilla and her attorney think Lamar knew exactly what he was doing. "Lawson Lamar had no intent to prosecute," says Adam Sudbury, her lawyer.
The Orange County grand jury meets once a month and hears mostly capital crimes. (Its companion in Osceola County meets less frequently.) However, the prosecutors have leeway to bring other cases before the grand jury instead of charging somebody directly. These cases tend to be controversial — it's a way of keeping the state attorney's hands off potential political hot potatoes. But those cases are exceptions to the rule. "It's not common practice to bring `non-capital` cases," says Lamar spokeswoman Danielle Tavernier.
Michelle Latham, the assistant state attorney who presented the Trinidad case along with Lamar, declined to comment. Asked how often a grand jury declines to indict, she says, "I'm not sure. Well, it's not that I'm not sure. I just can't talk about it." Tavernier says Lamar would not comment. However, Tavernier adds, the decision to take this case to the grand jury was ultimately Latham's, and one she made because she had "trouble with the facts presented."
The state attorney's office couldn't provide Orlando Weekly statistics on the number of cases the office takes to the grand jury every year by press time. Anecdotally, Tavernier says the Orange and Osceola grand juries hear about 70 cases per year, and she only recalls two instances this year, Trinidad's included, in which the state didn't get an indictment. (The other was a first-degree murder case in Osceola County.)
In other words, when Lamar wants an indictment, he usually gets one. "`Not getting an indictment` is like the rarest thing ever," says Orlando criminal defense attorney Eben Self (who is not involved with this case). "There's only one lawyer in the room. They present a one- sided case."
But Lamar didn't get one against Trinidad, and Asprilla is suspicious. "I think they really just `took it to the grand jury` to shut me up, to shut the media up," Asprilla says. "They completely used me to get this officer off."
The case stems from an April 12, 2007, incident at the now-defunct Club Paris. Trinidad, who was working as an off-duty security guard, was escorting Asprilla out of the club at closing time. According to his police report, Asprilla cursed and spat at him, then tumbled down the stairwell when he reached out to arrest her. Trinidad arrested her anyway. She spent 15 hours in jail and lost her job as a social worker as a result. (The state attorney's office later dropped the charges against her.)
In a sworn deposition months later, Trinidad accused Asprilla of faking her fall: "She was running down the stairs, and once she reached the bottom of the stairway, she took her famous belly-flop and landed on the ground."
Neither version — the one in his deposition nor the one in his police report — was true. An unearthed videotape showed, clearly, what happened. As they walked down the stairs, Trinidad extended his right hand and pushed Asprilla, causing her to tumble down the stairs. Then he walked right by her as she lay on the floor in pain. On Aug. 29, 2007, Internal Affairs ruled that Trinidad had engaged in "conduct unbecoming an officer" for pushing Asprilla and concluded that he had falsified police reports. As punishment, OPD stripped him of one vacation day.
That slap on the wrist wasn't enough for Asprilla. "He committed crimes against me," she says. "I want justice for that."
More than a year later, Asprilla would get her chance to testify before the grand jury. But her description of events indicates that this wasn't a case Lamar was that interested in winning.
On Nov. 17, assistant state attorney Latham called her at home to walk Asprilla through the next day's testimony. But Latham told her the state wouldn't seek perjury charges — only a misdemeanor battery charge — and Asprilla got angry. That evening, Sudbury blasted a press release calling such a decision "unthinkable." It got play on the evening news.
The next morning, as she arrived at the courthouse for her testimony, Latham said her office had changed its mind — they would seek two perjury charges along with the battery. But there was another change: Now Lamar would be questioning Asprilla himself.
Inside the jury room, Latham went first. Asprilla says she stuck to the basics of what happened. And then came Lamar — a former Orange County Sheriff with whom Asprilla had never before spoken. She describes his line of questioning as an interrogation — was she drunk? How many drinks had she had? What height of heels was she wearing? Where were her feet on the stairs? — akin to what Trinidad's defense attorney might do on cross-examination. She also says that Lamar kept telling jurors that she had fallen rather than saying she was pushed. He told the jury that one witness who had said in a deposition that Trinidad pushed Asprilla had declined to testify before the grand jury. Asprilla says two other witnesses would have, but Lamar didn't call them. (State law also prohibits prosecutors from using Internal Affairs records in criminal cases.)
"He was trying to discredit me," she says. "He was asking me questions to try and make it look like I was at fault."
Because the grand jury hearings are closed, it's impossible to know what else was said or what jurors argued about during their deliberation. When it was all over, Lamar announced that the grand jury had cleared Trinidad of all charges.
"They looked at the photography from the scene in many different enhanced ways, so they could see it closely," Lamar told the assembled news cameras. "The matter, for criminal purposes, is therefore closed."
Sudbury says the outcome was hardly a surprise: "We could tell where it was headed. Lawson Lamar's personal opinion of this case was very apparent." He says Asprilla will soon file a civil email@example.com