Could Use Some Advice...

I live in a southern California metropolitan city, and I have a part-time job selling mainly electronic consumer goods on ebay. I'm also studying in preparation to take the GMAT exam for entrance into a business graduate school so that I can get my MBA.

On Sep. 28th, I got a call from a local police detective asking if I could come down to the station, because he believes that someone using my name tried to open a credit card account. Naturally, I was worried, so I rushed over. As it turns out, it was just a trick to get me there. Once inside, the detective took me into a small room at the back where they have a one-way mirror and no doubt video equipment to record the interrogation/interviews of possible suspects. He asked me if I had a credit card from a certain major retail chain store. I said I did. He then asked me if I was purchasing items such as video game packs and video game systems from separate branches of this store and then returning them after pilfering through the packages. He elaborated, that in the case of the video game packs (12 game packs of the same title), the games were removed from the box, and then the empty boxes resealed and returned to the store. And in the case of the game system (an Xbox 360 system), he said that the hardware was tampered with. The main game console wouldn’t work, and some of the other components (such as cables, power supply, controller, etc.) that were supposed to be there in addition to the console, were not all there, and other components (old used cables and junk items) that did not belong there were included to "fill" the box.

I was utterly shocked to hear about these incidents, much less come to terms with the fact that a police detective had called me down there to accuse me of committing these acts! I told the detective that I ran a business on ebay where I sell various consumer electronic items including games and game systems, and sometimes my customers return their purchases. When they do, I take it back to the store that it was bought from so that the balance would no longer remain on my credit card account, which of course prevents me from incurring finance charges. After all, I wouldn't be making much of a profit from this business if I were up to my ears in credit card finance charges every month. As for the manipulation of the game packs, and the Xbox 360 game system, I believe the customers that I had sold them to, who then returned these purchases, are the ones responsible for these deeds. But I can swear that when I returned the 12 game packs to the store, the boxes were sealed, and there was definitely something inside those game boxes... they did not feel empty at all! Infact, I recall one of those game boxes being opened by the store employee who processed the return, as another employee (possibly a manager) asked her to check it. The clerk did, and she said it was okay. The Xbox game system was bought from and returned to another branch of the store. In that case, I checked the main gaming console which seemed just fine from the outside, and the serial no. on the back matched the one noted on the receipt. The other components such as cables, the power supply, etc. seemed to be there, but I didn't go through it piece by piece to check these thoroughly. These other components are not nearly as valuable, and even if a cable or two was missing here or there, the game system manufacturer ( Microsoft) could easily take care of that once the package has been returned to them. According to the store, all game systems returned by customers get sent back to the manufacturer.

I explained all of this to the detective and assured him that I was innocent of any wrongdoing. The detective then asked why 12 of these game packs had no games inside of them. If it was just 1 or 2 being manipulated by 1 or 2 of my ebay customers, that may be understandable... but why a full dozen? This was a very reasonable question, but the answer was quite simple in that the whole dozen was sold to the same customer, who tampered with them, and then returned the resealed boxes (although I still say that there was definitely something inside of them... I would've been able to feel it if those game boxes were empty). The detective then asked if I can verify my story by providing him with a copy of the PayPal receipt. PayPal is the electronic payment system by which most ebay buyers pay for their purchases to sellers like me. I told the detective that I absolutely could, and the following day (Sep. 29th), I did infact go back to the station and present him with a copy of the PayPal receipt for the video game pack transaction showing that there were actually 13, not just 12, of those game packs bought by a customer in Italy. 12 of the 13 game packs were then returned by that buyer, and I in turn took them to the retail store to return them as I figured these would not sell. I also provided the detective a copy of the PayPal receipt for the Xbox 360 system, purchased by a customer in Canada. Apparently, he was the one who tampered with this item and returned it to me thereafter. I then returned it to the store to get my refund. In addition to the PayPal receipts, the detective had also asked me to provide copies of the store purchase and return receipts of the 12 game packs, and the Xbox 360 system. So I provided these as well, along with a detailed letter explaining the matter in entirety. I was hoping that this would get the case dismissed.

About 3 weeks go by since I submitted these documents to the local police detective, and all of a sudden on Oct. 21st, I receive a letter from that same detective (dated Oct. 19th) saying that "a complaint has been filed against me with the [CITY] Superior Court alleging a violation of: 487 PC." It further states that I may avoid a warrant being issued for my arrest by appearing at the [CITY] Superior Court on Dec. 14, 2009 at 8:30 AM. There is also a case # mentioned in the heading. The letter was typed on high quality legal paper with the local PD's letterhead and personally signed by the detective. Since receiving it, I've been a total nervous wreck! 487 is the penal code for grand theft... that much I've already looked up on the internet. I keep wondering why the documentation that I provided wasn't enough for the detective to get this matter dismissed. I thought about calling the detective myself and asking what more do I need to do, or provide, or what it is that makes him believe that I'm guilty of these acts. But I thought I'd look around for some advice before I call him, or consult with a local lawyer for that matter. I'd rather not hire a lawyer if I can help it, as I don't have much money, and I know that I didn't commit any sort of a crime. I do regret saying one thing to the detective during the interview that I had with him on Sep. 28th... and that is I'd be willing to make it up to the store financially if they feel that I was negligent in not doing a better job of inspecting the merchandise before taking it to them to be returned. But I did stress that I never willfully or intentionally tried to steal from or defraud the store. At the time, I thought I was trying to be humble and cooperative, but I realize now that willing to be held financially accountable (for negligence, not theft) may seem somewhat like an admission of guilt. If you're familiar with legal matters, or have any familiarity with this sort of a case, please try to answer the following questions that I have. And then if you want to add any other helpful input, feel free to do so.

1) The letter says this is a complaint filed for an alleged violation of 487 PC, but am I suppose to take the meaning that I am officially being charged with grand theft upon receipt of this letter? If so, then why doesn't the police just get a warrant now and come to my house to arrest me? Or does this mean that the detective (and possibly a prosecutor he is working with) still aren't sure about whether or not I'm guilty in this matter? Or is this court appearance simply a necessary formality that occurs whenever a party is formally accused of a felony crime?

2) What can I expect to happen when I show up at court on Dec. 14th? A friend of mine who got a ticket for speeding a couple of years ago told me that on his first court date, he was asked to enter a plea. He plead not guilty, and so he was asked to post bond (pay the ticket) then, and would have to return later for a trial date. Will the process for me be similar to his experience (I enter a plea on 12/14, and then come back later for a trial)? If a trial is held, will it be a summary trial with the judge also acting as jury, or will a full jury trial be held in a 487 case such as mine?

3) Do I have a right to ask the detective (or the prosecutor that he is working with) to see what kind of "evidence" the other side has compiled, or what witnesses they plan to call to build a case against me? If so, what exact steps should I take in getting access to this information? I figure that I'd be able to better defend my position if I can provide the proper documents and information to refute what they have.

4) If I do find it necessary to hire an attorney, is there a way to get my legal expenses waived, or have the local PD or [CITY] to pay for it, assuming that I don't get convicted of course? Also, if I am found guilty, will I be ordered to pay a restitution fee to the store? Given this last possibility looming overhead, it makes me even less inclined to hire a lawyer, as I then may have both legal expenses and a restitution fee to deal with.

I'll leave it here for now. If I have any more questions, I'll include them on follow-up posts. And if you wish to add any more helpful info. that goes beyond these questions, please feel free to do so. Your help will be greatly appreciated.

Thank you,
SoCal_Resident

The first thing you need to understand is that this is a terribly serious situation and you cannot handle it by yourself. So far, you are “batting zero” so to speak. I understand and sympathize with your efforts to handle this without a lawyer, but please listen carefully.

You absolutely, positively, have to have a lawyer representing you or you are not only likely to have to go through a trial, you are likely to be convicted.

If you are without assets a public defender might be appointed to help you. If you do not qualify for a public defender, then beg, borrow (but do not steal) the money needed to hire a competent criminal defense attorney. Your liberty is at stake, as well as your reputation, and your ability to work in many fields in the future.

Taking your questions in the same order you raised them:

1. Although I am licensed in California it is difficult to answer your first question because I don’t believe that the procedure you describe is followed in the area where I practiced, which is quite distant from Southern California. If a complaint has been filed, then there are already “charges” filed. You just have not been served with the papers yet and booked. I do not believe that sending you a letter can possibly be considered formal service of a felony charge. Hazarding a guess, I believe that you are being invited to come in to court to be formally charged in lieu of the police being sent out to arrest you and haul you off to jail. This probably means that the detective and prosecutor do not think you are a flight risk. It does not in any way suggest that they are unsure of your guilt. Quite the contrary, actually.

2. I do not want to hazard a guess at what will probably happen at the first hearing because I would be stacking a guess on a guess. I can say that there is a possibility that you could be jailed right then and there unless you post a bond.

You also asked about a trial. You have a constitutional and statutory right to a jury trial when charged with a felony.

3. You have the right to “ask” for anything, but unless you follow the proper procedure they probably won’t cooperate. Again, this is a reason why you need an attorney.

Cease and desist from any further communications with the detective or any other person connected with law enforcement or the prosecution. Even if they were open minded when they started their investigation (and I hope they were) by now they obviously do not believe you. It is extremely unlikely that anything you say or produce in the way of documents will persuade them otherwise. Probably, you will just dig yourself in deeper. Let your lawyer handle all communications.

Do not talk to anyone else about any further details of the crime charged (that means stop posting any further facts on this thread). You now know you need a lawyer. Turn it over to her or him.

4. Your question about having legal expenses “waived” makes no sense. If you hire a lawyer, you will have to pay her or him. If you mean getting your expenses reimbursed by a governmental agency, the answer is “No.”

Yes, if your found guilty you would probably have to pay restitution. That is absolutely the least of your worries. If your at that stage you very well may be in prison. Even if your guilty, your lawyer may be able to guide you to avoid or reduce the period of incarceration. If I had the choice of being broke, but facing only light jail time and a restitution bill I could not pay, versus being in prison I would choose the first option.

A thought..........

Even if you attempt to argue that the buyer on Ebay is responsible for returning merchandise to you which they had already tampered with, the problem you are going to have is proving that the boxes were tampered with before they were returned to you, and not after they were returned to you but before YOU returned them to the store.
In other words---your position is that the buyer you sold to stole the merchandise from you, altering the boxes. However, I am certain that the prosecution will counter that it may be entirely possible that you can document the transactions and number of items sold. You can also document PAYPAL transactions/refunds. However, it is impossible to prove you did not , in fact, receive the items back from the buyer and you yourself removed them/altered the boxes before returning them.

While I am not suggesting this is the case, I am merely pointing out that this could very well be their 'take' on the scenario.

You don't need to be guilty to go to jail. You just need to be there and have a jury convinced beyond THEIR 'reasonble doubt'........and your life will never be the same again.

I agree wholeheartedly with Semblance. The cost of NOT hiring an attorney could be one for which you will be paying for the rest of your life.

Thank you for responding. Here are my follow-up questions:

1) If they are convinced of my guilt, then why exactly won't the police just haul me off to jail and instead invite me to court to be formally charged and subsequently booked and jailed (unless I post bond)? Is this a common practice for suspects involved with "lesser" non-violent cases, as opposed to the likes of those involved in more serious and violent crimes (e.g. murder, rape, assault, etc.)? They're also giving me quite some time as well... nearly 2 months 'til the court date. If they're truly convinced that I'm guilty, wouldn't they call me to court sooner?

2) The friend who got the speeding ticket that I mentioned on my previous post was actually absolved in court. On his trial date, the officer that issued the ticket didn't show up to testify against him. The charge was therefore dismissed, and he simply walked out of the courtroom. A couple of weeks later, his bond amount (the amount on the citation that he paid after entering his plea of not guilty on his initial court appearance) was returned to him in the form of a check in the mail. Isn't it possible that my experience could go the same way? I mean, is it possible, just possible, that they're just testing me further, and will determine their decision on whether or not to formally charge me based on my showing up (or not) on the court date?

3) Is it really a good idea to cease all communication with that detective? I was just planning on asking him if the PayPal receipts and other documents that he requested (and I promptly provided), wasn't satisfactory for some reason. I really did think that would be enough to make this matter go away.

As for my question regarding the waiver of legal expenses in the previous posting, well I was actually hoping for some input on how I can get either free (pro-bono) representation, or in any way to get attorney fees “waived” due to financial hardship. And yes, I was also wondering about reimbursement from the govt. (specifically my local PD or city court who are bringing these charges against me). My thinking was, since I’d be hiring an attorney because of them, can I get them to pay for that expense, especially if I’m found not guilty (thus implying that although I was innocent all along, I was forced to hire an attorney because of them)? But I realize now, that this is just wishful thinking on my part. However, if you have any information on how or where I can get pro-bono legal representation, then please do let me know.

And one more thing I wanted to mention in being reluctant to hire an attorney. I know that I'm innocent and didn't commit these acts of theft that they are accusing me of. But I was thinking that if I do hire a lawyer who then communicates with their side, that may cause them to be even more suspicious. I figured they'd think, if I was TRULY innocent then I wouldn't need to hide behind a lawyer, would I?

By the way, please don't consider my follow-up questions or comments as a show of defiance or ungratefulness? I truly am glad that you're being candid and are offering practical advice. I suppose that I'm just trying to gauge my chances of a positive outcome from this scenario.

Hello and thanks for responding. You make a very good point about the uncertainty of WHEN these items were tampered with, and therefore the uncertainty of who it was that did the tampering. And yes, it would make sense that the detective investigating the case as well as a prosecutor that he is working with, are probably thinking along the lines of that specific scenario that you pointed out--with me being the perpetrator.

But then again, isn't that same uncertainty of when and who tampered with these items the very definition of doubt (or reasonable doubt if you will) as far as this case is concerned? A detective or a prosecutor would be aware of this fact as well, would they not? After all, the burden of proof is on them to show that I committed the crimes in question, rather than to present the possibility that the two ebay buyers who bought and returned these items to me, did not do the tampering, correct?

Yes, I agree with you that if the other side can convince a jury to overlook their doubt, then they can indeed convict me. But would a jury actually do that just because I show up at trial without an attorney, therefore appearing to be "unworthy" in some way in their eyes?

I never said that you would appear 'unworthy' for not hiring an attorney.

Also and here is the proverbial bottom line--you bought the items, you returned the items. Therefore it is reasonable (to a jury) that you would be held accountable for what was in the boxes YOU returned. In fact, it MAY be that the jury would find it irrelevant if the ebay buyer stole the items from you----they may think it doesn't matter since the consideration really is about your returning empty boxes. So whether or not the ebay guy stole the items or not doesn't change your potential liability that you alone returned empty boxes. They may feel like you realized the boxes were empty and you decided to recoup your loss, so to speak, and when you were stolen from, you found a way to pass that cost along to the store, as it were. So who took the items out of the boxes really isnt as relevant, in my opinion as the main point---you returned empty boxes. A jury may well accept the premise that an ebayer stole from you. But they may also determine you knew it and returned the empty boxes anyway. An agreement about the first (the ebayer stole the items) does not preclude you from being found guilty. Understand?

Fault and responsibility are not mutually exclusive. However, in the eyes of a jury, they may be close enough to convict you.

Although this question was not asked of me, I thought I would take a moment to offer my perspective, although it may be markedly different from those Semblance would make.

A lot of your question are 'crystal ball' questions---asking someone to predict what will or could happen really isn't productive. And, worse yet, I fear you are avoiding the starkness of the situation by offering yourself placebos of comfort based on what makes sense to you or what you think should happen based on other people's experiences.

1) That isn't how the system works. It is not a comparative sort of deal where those that are the 'baddest' get the 'Law and Order' treatment. "Inviting" you to court allows them to do a lot of things----most specifically save time and taxpayer dollars, not to mention have the opportunity to scrutinze your every move in how you respond, if you respond, etc. Two months is nothing compared to already full to overflowing court dockets.
2) Again, you are asking hypothetical questions--anthing is possible, I suppose, but not likely. Also, you are making a parallel where there isn't one. With a case where detectives have logged man hours as well as taxpayers money you can bet if someone doesn't show up, they will ask for a continuance. With a felony charge in the balance, I wouldn't leave the situation up to fate to see if the guy shows up. Sure he may not, but even if he does not, the prosecutor will undoubtedly be there. Additionally, your case is probably not going to be heard in magistrates court (also called traffic court), but rather general sessions (those are the terms for it in my jurisdiction---they may be different in yours). In other words, you won't usually find the DA/detectives/investigators, etc. in magistrates/traffic court on a routine basis but he is regularly in circuit court/general sessions. It's a whole new ball game---major leagues.
3) Obviously, it hasn't been 'enough to make it go away'. The answer, then, is a resounding YES. Stop TALKING to him before you are hoisted on your own petard. He is NOT your friend, and more importantly, he does NOT have to tell you the truth. He is under NO compulsion to be honest and forthcoming. His goal is to put you behind bars. Keep that in mind at ALL times.
YOU are not 'forced to hire a lawyer because of them'. You are being forced to hire a lawyer because you, unwittingly, returned EMPTY BOXES to a store and obtained a refund. That is a crime. That is why you are being prosecuted. Probable cause exists that you committed a crime. Their bringing charges against you is solid based on your actions which, in the eyes of the law, at this point, suggest a crime has taken place.

I don't mean this unkindly but your 'knowing you are innocent' really is immaterial to the purpose of what is happening. Many a man convinced of his absolutely innocence is sitting behind bars. I assure you at no time will anyone ask you "So, do YOU think you are innocent?" How you see yourself, for all legal intents, is immaterial.

You say "a lawyer communicating with their side" would make them suspicious---but YOU are ready and willing to sit down over coffee and attempt to convince them YOU believe in your innocence. You are walking through a mine field and you appear to be unaware. The lawyers job isn't really to get you out of the charges, so to speak. His job is to represent your interests and make sure that the state does not violate any of your Consitutional rights in building the case against you. People often belittle defense attorneys and say, "How can you represent a rapist or murderer??" The answer to that is--they are defending the integrity of the law and their clients Constitutional rights as they are afforded equally to everyone under the law. Forcing the state to prove their case against a client and making sure they do so with integrity and precision is a good defense attorneys job. They aren't just 'communicating with the other side'.
Affording yourself the ability to maneuver through their carefully laid out labrynth of loaded questions, where anything can be used against you is hiding behind a lawyer? That is like saying, "I won't hire a doctor because, I mean, wouldn't that look like I was REALLY SICK??" You have a pollyanna-esque aura about you that concerns me greatly. Your are operating under some grave miscalculations about how the legal system works and I feel your expecations about and dismissive attitude regarding what is happening will be to your detriment. These are not criticisms of you, but rather, observations that the detectives building a case against you will most certainly notice.

I wish you well.

To So Cal Resident -

Without revisiting everything said by GentleGrace, I generally concur with her on every significant point.

As GentleGrace says, this is not about whether you are "innocent" in the abstract sense. It is about whether you will be perceived as guilty. Starting out, if sealed boxes were returned for refunds but empty, that makes you look very bad. Sure, it could be innnocent on your part, but many, perhaps most people, will be quick to draw a contrary conclusion.

To give you an analogy you might be more familiar with in day to day life, what is your reaction if you are in a store and you see someone who is leaving confronted by store security? If you are like me or just about every other person over the age of 10 in North America you can't help but think that the person leaving has stolen something, or at least might have. Even if you are open minded about that, what will you think if this person pulls unpaid for merchandise out of his pocket and says "It was a mistake. I forgot to pay for it." Sure, it "could be" a truly innocent absent minded mistake and if the person is charged with a crime and a jury believes that, the person will be acquitted. (At least in California, which requires specific intent to steal.) Good luck proving it, though.

One of the reasons we have a "presumption of innocence" standard in criminal cases and the requirement of "proof beyond a reasonable doubt" is because, as a practical matter, most people think that someone charged with a crime is guilty. These procedural safeguards help offset that.

I too have the impression that you have a naive perception of how the criminal justice system works. I am not saying that is your fault. You are the sum of your life experiences and obviously have not had any exposure to this harsh aspect of society. That underscores the point, however, of why you need an attorney. You are in way over your head. You're efforts so far to clear yourself have not been successful and indeed probably helped the prosecution build a case against you. There is an old saying, "The jails would be empty if people kept their mouths shut." Cynical, but accurate I am afraid.

My opinion and GentleGrace's opinion are in concurrence. I do not see how we can help you further. I do hope that you will consult a lawyer without delay. It is your only hope of preventing this serious problem from wrecking your life.

I am fascinated by the line of thinking that seems to be prevalent regarding paying for legal services.

It is never convenient to pay for legal representation. Everyone I know has financial struggles---who doesn't? Does anyone really sit down and say, "Wow, I have a grand left over this month. Wonder if I can find a lawyer who wants it?"........

Housing is expensive. Medical care is expensive. Eating is expensive. No one would think of dining in a restaurant and expecting the owner to pick up the tab. But when it comes to legal matters, I see a parallel with issues like medical care----everyone feels entitled.

That being the case, we should point out that the poster can go to the PD and seek representation----it is free. That is as far as the entitlement goes.

I don't mean to speak about the poster as though he isn't here---but it does concern me that he honestly does not seem to grasp his responsibility in all of this---I did not say FAULT, nor did I say GUILT. Responsibility is entirely different. And it alarms me that none of it seems, in his eyes, to rest upon him.

I hope it will not be to his peril. Even if he does not understand, perhaps some of the countless other people who peruse this forum can.

Thank you both Grace and Semblance, for all your input. Yes, I'm not very familiar when it comes to how the legal system works. I have no criminal record and have never been in a situation such as this in all my life. I'll bet that many others like myself, probably figure that since I'm innocent, if I just cooperate with the police and do what is asked of me, it'll be okay... the system will work and set me free because I'm innocent. This is actually the same reason why I was reluctant to hire an attorney (in addition to the fact that lawyers do cost quite a bit of money... and I simply don't have much to spare). But upon reading your posts, I realize now that the legal system is set up to engulf and tear apart anyone who is not adequately prepared to deal with it. It's especially apparent from Grace's posts that instead of this "innocent 'til proven guilty" concept that they feed us, you're actually considered guilty just because they think you are. And then it's up to you to find a way out, which is easier done with a lawyer at your side.

I do appreciate the information that the two of you have provided here. Obtaining info. regarding what I can expect is actually one of my reasons for posting on this forum. And you two have done well to point out the worst possibilities in this scenario, which is what I suppose I need to be prepared to defend myself from.

There is one other thing I wanted to ask about. On the letter I received from the detective asking me to appear in court (both on the envelope and on the letter itself), my last name is misspelled. While this may seem like another naive/silly question to you guys, I was wondering if I can use this technicality to my favor somehow? Like for instance, when you hear about legal cases getting dismissed due to errors by the prosecuting side. Or does this have to do more with procedural errors that go beyond spelling the suspect/defandant's name properly?