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.
The number one negotiating strategy for getting the best deal for a particular client is to test, weigh, and contest the admissibility of evidence. Strength of case is the single most important parameter that affects settlement. The stronger the defense case, the stronger the case for a more favorable sentencing is. This can mean the difference between probation, with a special condition of several months in jail, being traded out or some form of negotiated dismissal. Strength of case is number one, yet it’s not the only tool in the box. For example, in a case involving personal violence of some kind, if the complaining witness does not want to see the defendant punished horribly, then instead of aggressively issuing a subpoena and requiring this particular complaining witness to show up for a deposition, it may be better to do one phone call, a letter, or something of a similar nature that is less threatening to this witness, in order to move them over to the defense side.
It may sound odd, but people are far more forgiving of a battery charge than they are having $5 stolen from them. When it comes to theft cases, those are actually some of the most difficult types of cases to mitigate. Florida lists 14 statutory mitigation grounds in rule 3.992B of the Florida Rules of Criminal Procedure. Each of these 14 mitigation grounds has been approved by the Florida legislature. But that is not an exclusive list. Mitigation grounds are limited only by the creativity of the defense team. For example, I have been using SPECT, Single Photo Emission Computed Tomography brain imaging, as mitigation since 2005. From what I can tell, virtually no other criminal defense law firm routinely uses this as a strategy. However, Florida has one of those 14 legislatively approved mitigation grounds that is ideal for using SPECT brain imaging.
We have to show that our client suffers a mental health disorder or physical disability; we have to show that they need specialized treatment; and we have to show that they are willing to undergo specialized treatment. There is also a requirement that the mental health disorder or physical disability is not related to drugs or alcohol. Substance abuse is a deal breaker. This is exactly why we use SPECT brain imaging. When you do not use SPECT brain imaging, and you try to prove the specialized departure ground, you run into the problem known as the battle of the experts. Think of it like this. Your child falls off of the roof of your car, and you rush the child to the hospital. The doctor will not use an x-ray but wants to cut the arm open to see what’s going on inside, and how to best treat it. As a parent, you’ll immediately take your child out of there and for good reasons. That’s ridiculous.
Unfortunately, when it comes to most attempts to get mitigation with mental health, we find a battle of the experts where somebody for the defense has asked the defendant questions and observed their behavior, yet not imaged the brain. The prosecution’s expert witness has done the same thing while not imaging the brain. If they disagree, the court can appoint a third expert in court-appointed cases to break the tie, but the reality is none of the two or three experts are using brain imaging. When using brain imaging on the specialized treatment departure, it’s very hard for the state to combat it. The reason it so hard is imagine there is a court hearing, and instead of a battle of experts over a broken bone, there is an x-ray.
The same is true with brain imaging. During the course of my career, I have done more SPECT brain imaging mitigation cases than any criminal defense lawyer on the planet. The most striking thing to me is that every actual guilty client that I have sent to have a brain imaging study done, every single one of them has come back with abnormal brain scans. Not one criminal defendant I have sent to have mitigation brain imaging done has produced a set of healthy images. In our particular firm, we are mindful of the importance of strength of case, as well as numerous other strategies. At the same time, we are also always looking for more advanced ways to help our clients, including such things as using SPECT brain imaging, and bringing neuroscience into the courtroom.
At What Point In A Criminal Case Can Someone Get a Reduction Or A Dismissal?
A dismissal, reduction, or substitution can occur at any point prior to a jury or judge verdict in a criminal case. In my opinion, the best time for that to occur is to have a non-filing of charges. What do I mean by that? Sometimes the police will investigate a case, yet not make an arrest immediately. You find this in sex offense cases quite frequently, where you do not have a potential defendant living with a complaining witness. In that scenario, special investigators who handle sex crimes are going to focus on those cases, where the risk factor to the complaining witness is the highest. The classic example is a child under the age of 12 alleging that he or she has been sexually battered by an adult living in the house.
In terms of law enforcement, that is probably the highest priority investigation. On the other hand, for a casual encounter where a couple drunkenly hooks up and then later, one of them claims that they were sexually assaulted or battered, that investigation is going to take longer. I had one case where a client was falsely accused of the sex offense, and the investigation continued for eight months before he was arrested. In my opinion, while reductions, dismissals, and substitutions can happen at any point during a case, my preference is after the investigation has been initiated but before the investigation officer has issued a warrant. There are many clear advantages, such as not having to go through criminal prosecution, and it’s more cost-effective for the client.
A lot of times though, instead of hiring legal counsel immediately, people are so scared of a legal fee that they will blow off hiring a lawyer and get arrested. Then, they end up paying 5-25 times what they would have paid to have the lawyer intervene during the investigation stage, and try and kill the monster while it’s still in the egg. A criminal case, when someone has been accused of violating Florida law, is a terrible monster in someone’s life. The best time to kill the monster is before it is out of the egg.
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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