By Roberta Gubbins
Legal News
Gone Wired Café in Lansing was the place to be at 8:30 a.m. on February 11th where Hon. Clinton Canady, III was the speaker for the meeting of the ICBA Criminal Law Section meeting. Judge Canady came to drink coffee and reveal the procedures and preferences of his court. He answered the following questions:
What is your attitude toward Killebrew and Cobbs agreements?
"Judge Canady allowed that, while he had no problem with the Killebrew cases left from the previous judge, he might treat things differently when the matter originated with him. "If the agreement is probation and your client has a history of probation violations, I don't see the benefit of putting him on probation again, because I believe we are better served to use those resources for those who will benefit. If the defendant has a good record on probation, I may be inclined to put him on probation again. My policy will be if your clients test 'dirty' I want to see them again."
( A Cobbs Plea, which is based on People v Cobbs, 443 Mich 276 (1993), allows a defendant to enter a conditional guilty plea that can be withdrawn if a judge's eventual sentence falls outside sentencing terms specified by the judge before the plea was tendered. A Killebrew plea, which comes from People v Killebrew, 416 Mich 189 (1992), allows a defendant to enter a conditional guilty which can be withdrawn if the judge's eventual sentence falls outside sentencing terms negotiated by the prosecutor and defense.)
"I like Cobbs better than Killebrew, however, I understand that your clients like to know what is happening so I don't think my policy will be to interfere with very many" (of the agreements made under Killebrew with the previous judge). "I do Cobbs in the chambers and then go on the record."
What will your trial day look like?
"We will do a half day, either 9-2, or 8:30 to 1:30. We don't have lunch but have two breaks during that time. If we need more time we can expand it."
Will you let attorneys do voir dire or question the jurors?
"I will cover the basics and then let the attorneys ask questions."
He went on to say, that "during the trial, I give the jurors a notebook to write down any questions they may have. The jurors give the questions to me, I share them with the attorneys and we decide which to ask. I am trying it out. It is an experiment and so far, their questions have been very good."
What is the hardest thing about shifting from attorney to judge?
"You mean staying out of the way--not substitute what I think is relevant--is hard," he said, laughing. Judge Canady noted that he has stopped attorneys who, at sentencing, try to characterize the crime as something it clearly isn't in an effort to portray their client as less culpable.
What are your thoughts on pleas under the Holmes Youthful Trainee Act?
"I am in favor of it for the first time offenders; I even gave a HYTA to a guy that had priors. What I look at is 'what the person is doing?' Is he working, going to school or on the verge of making crime his occupation. Most probation has been cut to 18 months. I did give a defendant a year but let him keep his HYTA because, although he hadn't committed any crimes he wasn't going to school, wasn't working, or paying his fines." He stated that he thought the first 24 months were super difficult and the time when the defendant needed family assistance to get over the hump.
How do you approach sentencing guidelines?
I've been under a lot or at the bottom end and only over once.
Have you felt constrained by the rules that may be coming from the court administrator, the chief judge, or the Supreme Court?
"I have to learn what the existing policies are and most of them I can live with even though I might not have selected them. There are budgetary constraints, battles with the commissioners, then bring in what probation is trying to do with their budgetary problems, or the Sheriff's position on over-crowding in the jail. I am learning."
Can my client enter a guilty plea at arraignment?
The only problem is the notification to the victim, if one exists. If no victim, I will accept the plea. I will not accept pleas on the day of trial other than to the crime charged. I will accept a negotiated plea the day before. Most trials start on Monday so Friday would be fine.
What are thoughts about reforming the criminal defense for indigents?
He acknowledged that defense attorneys need more compensation, however, "I am not an event pay guy. It ultimately causes a problem." The problem is that some attorneys might do the minimum because they are not being paid enough. "We need state funding, as long as it is in the hands of the county, there isn't enough money."
How do you feel about a plea under advisement?
I have mixed feelings about those so far. I won't deny it, however, it is an open case. My philosophy is that if the tool is there, I will not rule it out."
Judge Canady won his seat on the 30th Circuit Court in the November, 2010 election. He is replacing the Hon. James R. Giddings who retired. Prior to his election to the bench, he was in private practice in the Lansing area.
The next Criminal Law Section meeting will be March 11th at Gone Wired Café at 8:30 a.m.
Published: Mon, Feb 21, 2011
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