The Case Of The Illegible Handwriting – A Killer Cross Examination That Resurrected An Under Advisement Sentence For A Client
Read the story and excerpts about how we saved a young man from a probation violation and got a judge to give him an under advisement plea, i.e., MCL 333.7411, after she had originally denied it. A killer cross examination saved the day. Here’s the story:
A young man who chose to handle his case without our assistance found himself placed on probation by a local district court judge. He left the court, went to a clerk’s window and then left the building with plans to appear for a probation meeting the following Monday. He showed on Monday, met with a probation officer for the first time and was asked a single question that would require him to appear again in court for a probation violation hearing: “how did you get to the courthouse today?” When he answered, “I drove,” the probation officer advised him that he was prohibited from driving and that his license was suspended. The young man was stunned. He left and contacted our office. We ordered the transcript from the sentencing hearing and obtained copies of the “Sentence Order.” Here is a copy of the pertinent part of the “Sentence Order” — the probation officer claimed that the handwriting at the bottom of the form, writing that had never been explained to the young man, put him on notice about his license being suspended:
Our defense at the hearing was that he did not know that his license was suspended and that his license was not suspended. After reviewing the transcript and line number 37, we even decided to argue that his application for MCL 333.7411, the under advisement statute, had not been denied as the Court maintained.
The witness, the probation officer, attempted to tow the proverbial party line as much as is possible. She proved to be a resistant, difficult witness that tried to repeatedly argue with me and use the judge as a backdrop or safety valve. At one point, she attempted to claim that our client had received a copy of the Order of Probation and Sentence Order together. She would not concede this simple point that Sentence Order was not attached to the Order of Probation even though the Order of Probation referenced a “Sentence Order Attached.” Worse, she attempted to rely on “practice and procedure” rather than actual facts. On this one issue, whether the order was attached to the Order of Probation, here is a sample of how I dealt with her difficulty:
In order to challenge the claim that he knowingly violated his probation, I needed to undermine the claim that he had been told of the condition prohibiting driving and then I needed to challenge the claim that the handwriting put him on notice.
I began a challenge that would poke and point out how illegible handwriting on the Order actually was.
This was the order that contained the handwriting that I was challenging. Here was was my first challenge:
My attack on the legibility of the handwriting on the Order continued with a discussion about the words next to community service hours. Here is the Order:
It looked like “zoo” to me so I didn’t shy away from cross examining on what appeared to be written in that space. Here is the cross:
The Order contained some words that were illegible regarding drugs. It said “no drugs” and than what looked a couple of scribbles and the word “rumor”. Here is the Order:
I cross examined on the illegibility of the handwriting and started laying the foundation for how the probation officer was relaying on the her familiarity with the judge’s handwriting, something that our client did not have. Take a read:
My cross examination was leading up to the primary issue, the language on the bottom of the order but I could not resist a shot at the Order and what it said about MCL 333.7411. Did the Order say that MCL 333.7411 was “okayed” or “denied”. Here was the Order:
I cross examined the probation officer on the what the word was next to the “/”, was it “okay” or a “deny?” You’ll see that the judge tried to interject and “testify” and accused me of testifying to which I responded, “this is cross examination”:
Having made a challenge to the legibility of the language on the Sentence Order, I proceeded to the language that was at the heart of the allegation of a violation of probation, i.e., the language that supposedly indicated that the accused’s license was suspended. What was written here? The first word looked like “Liz” … Here is the Order:
My cross on the handwriting follows:
I then closed in … I questioned about a review of the transcript to discover 1) what was actually said to the client and 2) what was on the Sentencing Order since the handwriting was to put it generously, ambiguous:
Of course, the probation officer had not reviewed the transcript. Had she reviewed it, she would have learned that the judge never mentioned license sanctions on the record. But, she tried to stick with the handwriting on the “Sentence Order”, i.e., she walked right into our trap. Read on:
Or course it was clear to her, she works in the probation department, is familiar with the terminology and the judge’s handwriting. The accused was not:
In the end, the transcript did not provide the probation officer with support and the sentencing order proved to be unreliable in terms of notice. While perhaps the probation officer was aware of what the judge wrote or meant because she had seen 100’s of these orders and knew the judge’s handwriting, our client had not. He was a novice. A killer cross examination exposed his lack of notice and awareness that his license was suspended and ultimately ended up persuading the judge to give him what she claimed she had originally denied him, MCL 333.7411.