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Advanced Damage Control

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

How I Defend Cases When It Looks Like There Is No Hope?

Sometimes, in a criminal case, you have bad choices. You have gone all the way down through the upside down letter Y, and figure you find yourself at docket day facing Florida Rule of Criminal Procedure 3.992A. You do not need to know what rule 3.992A is, but it is a point system, and depending on how many points you have, you can find yourself in a very difficult position. Imagine this. If you take the deal, you get nine years in prison. If you go to trial, then you can get fifteen. This is not exactly a choice between winning the lottery, and taking a trip around the world with all expenses paid. This is a disaster. There is also another rule of criminal procedure that can be used to help people in cases like this, even when it looks hopeless.

Look at figures three and four. Figure three are two sets of four brain images. The first set is the surface of the brain. The second are deep brain structures. Figure three is roughly, what a healthy normal human brain should look like when scanned using Single Photon Emission Computed Tomography (SPECT). Now look at figure four. You do not have to have an advanced degree in neurological brain imaging in order to figure out that figure fours’ images look nothing like figure threes’ images. Why is this important? These images are important, because Florida Rule of Criminal Procedure 3.992B lists fourteen specific grounds for a departure. A departure is a sentence that is non-incarcerated.

For example, the person looking at nine years with a plea bargain, versus fifteen at trial was a case that I handled where we used this type of brain imaging to show that he met a legal ground for non-incarcerated sentencing. This man was sentenced to probation. We had three things to prove. Number one, we had to show that he had some kind of mental, or brain disorder. Brain imaging made that very easy. It completely avoids a battle of experts where people give their opinions without having looked at the organ in question. The second thing we had to prove, was that he was in need of specialized treatment, treatment that could not be found in the Department of Corrections.

We specifically used Amen Clinics in Atlanta to do the brain imaging. They produced an enormous three ring binder of diagnostic information, multiple forms of testing in addition to the brain imaging, a comprehensive treatment plan that covered a wide variety of areas; everything from nutritional supplementation, using exercise to oxygenate the brain, medication, specific targeted counseling, and a number of other treatment modalities. The third thing we had to prove was that he was amenable to treatment. We did this because your average felony case will last five to seven months.

During the period between arrest, and sentencing, we looked at all the possible defenses along the way, concluded that we did not have any, could not negotiate a very good plea bargain unless you think nine years is outstanding. He did not and neither did I. We proceeded directly to a sentencing hearing, and had an expert testify using the images in order to show that my client qualified for departure sentence. I have been using SPECT brain imaging to help people since 2005. The largest client base for whom I use SPECT brain imaging would be active duty military service members, and veterans. This is one of the most shocking things I think I have discovered since 2005.

After all, I have done more SPECT brain imaging criminal defense cases than any lawyer on the planet, so I feel qualified to give some very specific opinions on this.

Number one: Our veterans are returning from foreign wars with serious brain problems, and the scope of the seriousness is being swept under the carpet. I have had clients who have been in multiple blast radiuses with multiple traumatic brain injuries, and have been seriously injured, yet you cannot tell simply by looking at them as they go about their daily routines. When we do brain imaging on these service members, what we find is appalling. One case that sticks out even more than the first one I discussed is someone I represented very early on when I was doing brain imaging.

This particular military officer was an absolute rock star in terms of performance. The military loved him because he got things done. In fact, he got things done better than anybody at his level of rank did, and it was not even close. He had developed an alcohol problem during the process, and the military willingly paid for one of that thirty-day inpatient treatment programs that have a massively high failure rate. Nobody wants to hear this. We have been so indoctrinated by the twelve-step mythology that a large percentage of the population believed it has a scientific basis when it does not. Imagine this.

Your child falls out of the car, breaks an arm, you take the child to the emergency room, and the doctor says, “Oh, we don’t need to do an X-ray”, you would immediately take your child somewhere else. Yet here we are with military veterans, including those that have seen combat and have been physically injured, yet when they come back with the brain problems, no imaging is performed. It does not make sense. However, in this particular case with this particular military officer, about two weeks after he was released from this thirty-day inpatient treatment program, he was promptly arrested for felony domestic violence by strangulation.

His wife was utterly horrified, yet deeply loved her husband. She told me in a private conversation “This is not the man I married. Something has happened to him. He did not drink like this when we got together. It was only after he started being deployed that he started drinking. It began when he was sent to Kosovo, and by the time he was sent to Iraq, when he came back, he was out of control”. She loved her husband a great deal, and did not want him prosecuted. Yet the state attorney’s office was determined to see this man take a plea bargain, or lose at trial. Either way, it would be career ending for one of the military’s’ best, and brightest. We sent him for brain imaging.

A full-blown diagnostic evaluation was performed, and when we got the brain images back, they were utterly horrifying. As it turned out, his multiple problem areas in his brain were treatable. He began receiving treatment. During the course of his treatment, they put him on a particular medication that frankly scared the daylights out of me, because that medication and alcohol are so toxic. Some of my worst stories about people flipping out when they combined drugs and alcohol involved that particular prescription drug. I was thinking to myself why in God’s name they would ever prescribe this particular medication. As it turned out, the brain imaging along with all of the other diagnostic information indicated that for this particular person, this medication was precisely what he needed.

Sure enough, two weeks before court, I got a phone call and he said, “Mr. Cobb, I have no idea how my case is going to turn out. I was very skeptical of your coping with stress during criminal prosecution, and I was even more skeptical after I went to clinic, and they wanted me to take this medication. However, I want you to know something. I have been taking it for several weeks now, and I know it is working, because I could walk by my favorite alcohol sitting on the counter with the bottle open, and I had no interest in it at all. This is key. For the first time in my life, I feel normal. I cannot even recall before now when I felt normal. I do not feel like the medication makes me want to go to sleep. It does not make me feel anything except normal, and I have no desire to drink at all”.

After we hung up, I put the phone down on the cradle and I sat there for a good ten minutes. Frankly, this stunned me. Think about it. What if it was a standard operating parameter of the criminal justice system that people had a full-blown diagnostic evaluation including brain imaging, if in fact it looks like they are guilty of a particular charge? It would make sense. It would be affective. In this case, it was affective for this man’s case. The state attorney agreed to a negotiated dismissal.

No, it was not a diversion program; those things are toxic. It was a custom-tailored negotiated dismissal where we had a written contract that he would perform certain things, which consisted of him following a treatment plan over a ten-month period. It would take a year in total. He did everything that was required, and he has never been in trouble again. This is how we handle cases that look like they are hopeless when there is no legal defense. We use various different advanced techniques of damage control, and especially SPECT brain imaging.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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