Can Brain Imaging Be Used As A Defense In Sex Offender Cases?

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.

I represented one man who was deployed overseas and saw some pretty heavy combat. By all accounts, he was perfectly normal before he left. After his first tour of duty, his mother noticed a change in him when he came home during the period of leave. After that period of time, that change seemed to be permanent. He was still himself to his family and his friends, but those closest to him noticed that something they just could not quite put their finger on it was different. He went back overseas, saw more combat, and then after the war he saw, even more, combat, and I tried to ask him about what exactly what meant, but it was one of those if I tell you I have to kill you types of secrecy things, so he really could not tell me what he did after the war in Afghanistan.

But when I saw his brain images, we had a brain imaging evaluation done after he was arrested for sex offense charges, I was utterly horrified. Because I was sitting there hearing about his childhood, how he treated people, people who he had interacted with while growing up, people from the early part of his military career pre-deployment. This was really a stand-up guy. In fact, he was such a stand-up guy he was almost too much of a straight Erin, but that was basically who he was until he went to war. Until he ingested God knows what chemicals in the air, or in his food, his water, or whatever else happened to him. I just know what when I saw those brain images I may not be a doctor, but I can sure tell a round ball from a wadded up sheet of paper.

Not only did the surface images of his brain look more like a wadded up sheet of paper than a round smooth ball, the deep brain structures, the only way I can describe it, is it looked like they were about to set the paper on fire that they were printed on, because within the color scale if something shows up as red when it is not supposed to be visible at all, that is bad. When it shows up completely white and there are lots and lots of white where it should not be on the scan that means that that particular deep brain structure is highly overactive compared to other deep brain structures. When they are out of balance like that and you have too much blood flow, it is inevitable that the chemicals are imbalanced.

We often hear in our culture, oh so and so has a “chemical imbalance”. Those chemical imbalances can be seen, if you will, by using brain imaging. I do not pretend to know all of what it means, I just know that I was looking at somebody who by all accounts was normal, and then when they went off to war and they came back, they were anything but normal. I have seen this pattern with people involved in motor vehicle accidents. Oh my God, especially if they have played football. You start getting people who played football from when they started pee-wee football at five and they played through high school. Their brain images look really rough. The brain is very powerful, so even if it is not operating at one hundred percent a lot of these things fly under the radar.

It is very easy to figure out that the guy who has not taken a bath in God knows how many weeks and is babbling in the park somewhere between asking for money and trying to save your soul, you realize that this person might not really be Jesus Christ as they have claimed, because it is obvious that they are mentally ill. People like this particular member of our Armed Forces and so many others that I have worked with, you cannot tell by looking at that person that they have a brain problem. You would never guess it. With this guy, if you had talked to anybody who knew him, you would have heard the same thing. Stand-up guy, straight shooter. It turned out he had serious brain issues that were related to his deployment.

A treatment program after the diagnostic evaluation has been completed was prepared, and when the treatment program was prepared it was very comprehensive, the state cross-examined the physician very hard, and at the conclusion I said, “Judge, this state wants you to set taxpayer money on fire, set this man to prison, fully knowing that it’s going to waste money and not work. If the court is really concerned about preventing future criminality, then the smartest thing the court can do is sentence him to community supervision and take this particular diagnostic evaluation, and put the treatment conditions as special conditions of community supervision.” This is key. Take the recommended treatment that has been prepared by people using the most advanced diagnostics possible in order to produce the best, most effective treatment plan on a customized individual basis.

That is the smartest thing to do, and that is exactly what the judge did. That man has not been in trouble since. I have even used this in misdemeanor DUI cases. I represented a guy who had a second-offense DUI, and he had had one DUI previously reduced. It is not technically a reduction in Florida, but this was out of state, to a reckless driving charge. This could have been his third DUI. While he was awaiting trial on the first case, and while he was out on bond, he was involved in a single car rollover accident that fortunately hurt no one including himself, and with a blood alcohol very close to twice the enhanced legal limit. The legal limit is .08% and above creates a presumption of impairment. Over .15% is when enhanced penalties kick in. This man’s blood alcohol level was almost double the enhanced level, so it was very high.

We had already scheduled a brain imaging test. As soon as he got out of the hospital he went to his appointment, and sure enough, one look at his brain image, or sets of brain images, was horrific to anybody that even has a minor working knowledge of what that means, such as me. I do not know what all this stuff means because I am not a doctor, at least not in the medical sense, but I know enough to know that if someone’s brain images look like the brain is on fire, and on the surface images it looks like Swiss cheese, that is not good. Because that is not what a healthy, normal set of brain images are supposed to look like. We went to court. I had to go in front of two different judges, and sure enough, he had enough credit for time served before making the bond that in these cases, he did not serve any additional jail time.

He was looking at easily, in the one case, a year in jail for the rollover accident, and for the other case the way he was charged, he was looking at nine months. I was really concerned that he was going to get them back to back for a total of twenty-one months in jail in two different counties. However, the judge accepted my proposal that he be sentenced to community supervision with no jail, and he was given special requirements that he complete every single aspect of the treatment plan, and considering his treatment plan was about the size of a newspaper that is down in the lobby at most hotels, you could fit it in a three ring binder.

He did everything he was supposed to do while he was on probation. He no longer has the desire to drink, and it has only been three years, but he has not been in any trouble since. His prognosis long-term is good, and instead of being a waste of tax dollars, he is a productive tax payer.

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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