Stephen G. Cobb - Florida Criminal Defense Lawyer

Can Any Defense Lawyer Use The Specialized Treatment Grounds?


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.

A layperson would not understand using the specialized treatment program because I have tried to train a couple of my colleagues on how to use this material, and if someone does not have a deep interest in science, especially biological sciences, it is a little hard to pick up. Any lawyer can use the specialized treatment crown with SPECTs or other types of brain imaging. I just find that there is not any use of it. I do not know of another lawyer who is using SPECT brain imaging in the courtroom. I do know of some who are using an even better technology, what is known as F-MRI, but they are only using F-MRI in death penalty cases. Brain imaging, regardless of what technology is preferred, should be used in every case where someone is actually guilty or you have strong reasons to believe that they are guilty.

Some people may be guilty of three out of seven charges, I get that. Not every person is guilty of everything they are accused of, and many are falsely accused. I am not ignoring false accusations, but when it comes to using brain imaging in the courtroom, there are many, many different pitfalls. Many ways to have it excluded. There are also many different tactical decisions that have to be made along the way that I do not know that most lawyers would think to use because they do not have the experience to do so. Or, they might not have the presence of mind to use it because they do not have the educational background. I just happen to be lucky. My mother was an Ivy League medical educator.

It was inevitable that I was going to grow up being able to say Latin words that were four miles long that you would never hear outside of a doctor’s office or the back of a pill bottle. Those long words that you cannot even pronounce, well, I grew up that way. So the medical aspect of it is not a problem. Where you do see lawyers using brain imaging more routinely is in personal injury types of cases. Medical malpractice, automobile accidents, things of that nature where there have been brain injuries. Those lawyers are more familiar with it, but within the criminal law I have yet to run across a prosecutor or a defense lawyer who has a working familiarity with using brain imaging to help people get the treatment they need and a fair shake when it comes to a negotiated deal or sentencing.

How Effective Are Specialized Treatment Exemptions For Negotiating A Sentencing?

Frankly, I refer to it as the ultimate secret weapon of criminal defense. The reason I say it is the ultimate secret weapon of criminal defense is because virtually every prosecutor that I have come across has trouble figuring out how to cross-examine the doctors I put on the stand. Their training covers the legal principles of insanity at the time of the offense. Their legal training covers the rules around incompetency and continuing incompetency. But both insanity and incompetency are things that they have evaluated without the use of brain imaging. So they are used to using outdated technology and methods, and most of them are not even aware that it is outdated.

It is outdated because a full psychological workup is important, but when you put it together with brain imaging suddenly the pieces really start to fall together nicely. A physician may have three different drugs in a particular drug class that they can try to use on someone who has a mental health problem. However, without brain imaging, they are guessing maybe steroids. When they have brain imaging, they just simply look at the database and go okay. This pattern works best with this drug whereas these patterns work better with the other two drugs. So they get a far more effective outcome. Insurance companies want that ignorance to remain.

Their biggest fear is that brain imaging will become a standard of care like x-rays. If brain imaging became a standard of care with mental health disorders and addictive disorders two things would happen. One, treatment effectiveness would go through the roof. We would find people actually recovering instead of rehab becoming a joke, which is really what it is in our culture, and it should not be. So that is the first thing that would happen if brain imaging became a standard of care. Secondly, crime would fall. Why would crime fall? Simply because we have the eighty-twenty rule for the rate of law and affect. Twenty percent of the work produces eighty percent of the results. Pareto found this out in his garden with his peas.

Pareto found out eighty percent of his peas were produced by twenty percent of his plant, and eighty percent of his plant produced only twenty percent of the peas. It is like that in the criminal justice system. Twenty percent cause eighty percent of the problems. We can put those twenty percent of the population into jail and prison permanently, which would be like setting every bit of retirement money, your social security you expect to get later in life, and all of your investments, on fire. Because that is about as expensive as it can possibly get. You have an entire set of industries that grew up not actually helping people. So when we put all the pieces together and it is done correctly, we are able to not only get someone the best outcome in the case, we are actually able to solve the problem of crime itself.

When I speak to a prosecutor and I give these entire tugs at the heartstring stories, they do not make a hill of beans. The prosecutor does not care. My kids, my babies, my job. They have heard that 10,000 times, they are trained to be insensitive. When I say this is a set of healthy normal surface images, this is a set of deep-brain images, because you are going to have four sets of surface and four sets of deep brain, and I say this is what healthy normal ones look like. You do not need to know how to read them like a doctor. Just take a look at these two sheets of paper with four each. The way I often describe it is the brain should be roundish and smooth like a ball. Just think round like a ball on the images.

If you see a wadded up sheet or paper, that person does not have a normal brain scan. It does not matter how much medical training a person has, that old saying a picture is worth a thousand words is very true. When it comes to using this in negotiations, all the hearth-throb heart-string type stories in the world will not make a difference. But those imagines, I can see it in their face. No matter how hard-bitten and skeptical a prosecutor is, when they finally realize hey this is real, you can actually see the impact in their face. I mean I cannot tell you how many times I have seen their facial muscles actually relax because in that instance they get it. They understand why that is a person is in trouble.

They understand why that person broke the law. That person has an abnormal brain scan. Frankly, if someone has a highly abnormal brain scan I think it is reasonably foreseeable that person is going to run into trouble with the law sooner or later. To believe otherwise is to simply stick one’s own head in the sand. When we have these types of diagnostic evaluations done, we are able to get charges dismissed with negotiated dismissals we would never be able to get otherwise. We are able to get charges reduced where a reduction is not warranted. We are able to get probation instead of prison. This is really a secret weapon of criminal defense simply because it is the most effective way to solve the problems of crime, which is one person at a time.

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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Stephen G. Cobb, Esq.

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