Arraingment on Frivolous suit - venue change?

[semantic]

What is the name of your state?CA

I've been hit with criminal complaint from a check cashing merchant in Massachusetts regarding a stolen check from my wifes business that the merchant cashed. It was signed by somebody, who knows. This was in March of 2005, after the bank account was closed, after the corporation was dissolved, and after we had left the state. Actually, the check was honored the day after we left the state. The person who stole the check was an employee of MY business (not my wife's), and the check was stolen from my wifes business. No monies were ever paid out of my wife's business to MY employees.

I hired counsel to represent me in the criminal complaint. We presented the magistrate with proof of bank account ownership (not me, my wife), corporation ownership (not me either), affidavit of signature (mine), my driver's license, bank account statements, old paychecks from my (not my wifes) business showing my signature, commonly written amounts, etc. Counsel represented me at two different hearings on the complaint.

The magistrate asked the merchant 'what he wanted to do', and the merchant wants to go forward to arraingment. In the meantime, I've received a letter from the merchant saying that if I paid the amount of the check ($2500) he would drop the issue. I did not write the check, it is not my bank account (I was not even a signor), it is not my signature (or my wife's), the account was closed when the guy honored the check, the corporation was legally dissolved at that time too.

We were moving across country during this time, and didn't know about the missing check. We did not file a missing check complaint with the PD, for one, we didn't know about it, thought all checks had been shredded as it was a closed account and that is what we did before we left the state, shred old checks. How this one got out, I guess our office assistant was involved too.

We were hit with a judgment (against me and my wife) for this amount, which we included in a recent bankruptcy. After the notice of petition went out to the creditors, merchant included, that's when he filed the criminal motion against me personally, only me.

Now I am facing arraignment in another state for something that if anything, I (or my wife) is negligent about, but I've offered all the evidence I have at the complaint hearing.

I am aware that the merchant's demand for money violates bankruptcy laws, but what can I do regarding this suit he is bringing? Besides showing up for arraingment and trial.

I am bankrupt now, he is forcing me to go back to Massachusetts, and I believe he thinks I will pay the check amount rather than go through the stress of this, but I don't even have money for that.

Can I file a complaint against him in my state for frivolous lawsuit, or slander, or bribery? Can I ask for a change of venue (probably a stupid question) to my state?

I realize that our negligence is a factor here, but there are plenty of other factors here too. Is there any legal precedence I can refer to, or just simply file my own complaints here in California to get the guy to back off?

Thanks.

 

[Kane]

You're confusing criminal and civil law.

In a criminal case, the state (the prosecutor) has the obligation to prove, beyond a reasonable doubt, every element of the offense.

In a theft by check case (if that's what this is), the state has to prove that you wrote the check, and that the check was dishonored.

If you didn't write the check, you're not guilty, and you should plead not guilty.

When and if there's a trial, the judge or jury will listen to both sides, and decide who they think is telling the truth. If they believe your evidence, you'll be acquitted.

You cannot "force" the state to dismiss the charges or drop the case.

However, prosecutors don't like to waste time, and they will generally dismiss a case they think they can't win in court.

If you want to show your evidence to anyone (ahead of trial), it should be the prosecutor, not the complainant. As you've observed, the complainant probably doesn't care whether you're guilty or not, he just wants his money.

 

[semantic]

Kane,

thanks. I don't know much about this area. Does this mean, that even if the merchant wanted to drop the suit, it would be up to the prosecutor?

We plan on presenting the evidence to the prosecutor before trial.

Can I have counsel stand in for me at arraignment? I just don't know how this works.....I am in CA, and don't you have to show up for the arraigment, they set a trial date, and then you have to go back for trial? Or, can evidence be presented at arraignment that throws out the case?

I need to get new counsel in Massachusetts now, as the previous guy who represented us simply cashed the check and won't return our calls.

Can I represent myself?

Sorry so many questions.
But Thanks.

 

[seniorjudge]

Q: Does this mean, that even if the merchant wanted to drop the suit, it would be up to the prosecutor?

A: Yes.


Q: Can I have counsel stand in for me at arraignment?

A: I doubt it but check the local court rules and state statutes. It is usually possible to waive arraignment and just set a trial date. Again...check the local practice.


Q: I just don't know how this works.....I am in CA, and don't you have to show up for the arraigment, they set a trial date, and then you have to go back for trial?

A: Yes.


Q: Or, can evidence be presented at arraignment that throws out the case?

A: An arraignment is where the defendant pleads guilty (sentencing could be then or later) or not guilty (trial will be set).


Q: I need to get new counsel in Massachusetts now, as the previous guy who represented us simply cashed the check and won't return our calls.

A: Masachusetts Lawyer Discipline


Q: Can I represent myself?

A: Yes. You will have a fool for a client and an ass for a lawyer.

 

[semantic]

Pretty funny

Won't be the first time I've been one or the other!

Thanks for the advice. I will check local rules for arraignment procedures.

 

[rmet4nzkx]

Ask your bankrupcy attorney if the stay prevents the merchant from filing during your bankrupcy.

 

[Kane]

Bankruptcy doesn't preclude criminal charges.

Ultimately the decision on whether to dismiss or proceed with criminal charges rests with the prosecutor, not the complainant.

 

[semantic]

I've been told on the bk forum that criminal law is totally separate, and that he is not violating bk law by bringing a criminal complaint; rather he is violating the 'automatic stay' of bk laws by demanding money from me after the petition was served on him. I have a letter from him asking for the money 6 weeks after he got the bk filing.

I have been advised to file a motion for contempt with the bk court, which I am doing right now. I still have to deal separately with the criminal issue in MA, but plan on:

1. Waiving arraignment if possible, need to check if I can.
2. Contact the prosecutor before the trial and present with my evidence to see if it can be tossed (it's just so stupid, not even my writing on the check!! - to which I've provided ample proof to the magistrate already).
3. Wondering if I should counter-sue him here in CA in civil court for slander, extortion, or bribery. Would that be civil or criminal matters?

Anyway, I'm mad enough to do these things, stress notwithstanding. He (the merchant) was asked why he didn't go after the guy who presented the check to him, and he told the magistrate and my lawyer that he knew the guy didn't have any money. I can't wait to get my hands on the transcript, and will seek deposition if I have to for the motion of contempt regarding the bk hearing that will come out of this.
He also told the magistrate and lawyer that he had been served with the bk petition, so that's why he decided to file a criminal complaint.

I am soooo all over this with the violation of automatic stay and motion for contempt. But, it doesn't help me with the criminal matter that I MUST attend to.

Can I countersue in CA for the damages (monetary/emotional) he has caused us?