How Do You Use SPECT Brain Imaging As A Defense In Child Abuse Cases?

Apr 21, 2023

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 was recently honored and privileged to be interviewed and later have an entire chapter written up about what I do with SPECT brain imaging and Kevin Davis is the brain behind that. I honestly expected after meeting him and having him go to court with me that it would be a single line and not an entire chapter. But that chapter lays out exactly what I do with child abuse cases because haven’t you ever read a news account of somebody doing something to a child and you just feel your stomach falling away and you’re sitting there thinking to yourself, “How could someone possibly do this to a child”, or a dog or an adult or whatever it is. The answer that I always have and have had since 2005 when I ran into it is simply this. Scan their brain. Since 2005, I’ve been looking at brain images of people who are guilty of crimes ranging from DUI and sex offenses to crimes of violence, you name it, I’ve seen it all.

One thing that jumps out at me more than anything is that we’ve had not one person come back with healthy normal brain images. When I first began looking at SPECT brain imaging for my clients, I realized that people want to hear the tough talk, I am an aggressive lawyer, I can fight the fight, I love to win a jury trial, I mean you see some lawyers on their Facebook pages and it’s almost an embarrassment about how much they love trial and how much they love winning, and people eat that up. But the reality is the truth of the matter is that there are some cases that are terrible. The only way you’re going to win as a defense lawyer is if a random invisible bolt of lightning destroys every piece of evidence and kills every witness on the spot. Sure of that you’re going to lose. For over quarter of a century, I’ve never seen that random invisible bolt of lightning result in a case victory.

So, you have to decide what you are going to do. In some cases, technical defenses may provide some relief and knock out some of the counts but not all of the counts. What do you do if it looks like your client is going to lose, they are in fact guilty and they are looking at being tremendously punished? Well, I have their brain scanned. The reason I do is not for defense as in saying they’re not guilty because of their brain, rather it’s for mitigation purposes. Florida, like many states, has a provision of its sentencing statute that lays out grounds for mitigation and there are 14 of them that are codified in Florida Rule of Criminal Procedure 3.99(2)(b). Now, although one of them is known as Diminished Capacity, I don’t use that one very much to be blunt about it although it seems like it would be perfect for brain imaging because we’re getting these brain images back and in 12 years, I’ve never seen anybody come back who’s guilty of a criminal charge and they’ve produced healthy brain images or normal brain images. It just doesn’t happen.

What the specialized treatment departure does is it gives the judge an option, and this is how I use it. I have to show that the individual has a mental disorder or a physical disability. Specifically, the way I’m using it a physical disability of the brain. Now, there are other physical disabilities that would qualify into the case law, I just don’t think it is persuasive. I have back pain and it’s provable and it’s a physical disability, it’s not merely as powerful as someone having a physical disability of the brain that affects their decision-making and behavior. That’s step number one. In the old days, we used to call in a psychiatrist, the psychologist and the state would do the same, and then we would have a battle of experts. Imagine its 1890 and we’re having a battle of experts about whether a bone is broken, well that would be expected in 1890, no one was using x-rays for broken bones.

Yet by 1990, rest assured that if a party in a civil lawsuit or a criminal one would have called a witness to testify, “Yes the bone is broken”, the question would be asked, “Did you use nuclear medicine specifically, did you take an x-ray”. If the answer was, “No, I don’t need x-rays to tell that bones are broken”, everybody in the courtroom would look at that witness as if they were an idiot because that’s not the standard of care. We are in the period right now in criminal law and in psychiatry where brain imaging is much like the x-ray like before it was widely adopted. It’s used in clinical diagnosis but it’s not that common, and let’s be real, with the healthcare battle that’s raging in this country for the past several years and like to rage for the next several, insurance companies are not jumping up and down saying, “Oh, this highly expensive procedure, what a great idea”, that’s not happening.

If anything, I suspect they are funding people who claim that SPECT brain imaging has no use in medicine, no use in the courtroom, you can use it for research. In other words, no matter what’s done, they will always argue they shouldn’t have to pay for it so they’ll have higher corporate profits and that it’s good for research and that it’ll never be good enough for clinical use. This is not true but that’s what is going on. So step 1 is we avoid the battle of the experts and we show, literally show with expert witnesses and images that someone has a mental disorder or a physical disability and most frequently, they have both. Secondly, we have to show that that person needs specialized treatment and only when you fully image the brain are you able to sit there as a clinician, as psychiatrist and go, “Wow, now I see the whole picture”, because think about how it normally happens.

Someone goes in, they see a psychiatrist, the psychiatrist asks a series of questions, look at the patient’s medical history and they guess what medicine is most likely to work because that’s how they’re paid under the insurance fee. In reality, the better way is to have some type of brain imaging done, and SPECT is a very reliable technology for this, so that they can see all of the problems in the brain, plus when they are properly trained or working with a psychiatrist who is properly trained, they can look at those patterns that most of us would go “What the heck is that”, and they can say, “Oh, because of this pattern with the singular gyros over here and with the thalamus looking like that but we’re not seeing this here with the basal ganglia and this over here. That’s why of these six medicines in this particular class, we recommend this one”. But what normally happens, a psychiatrist is not using any of that and they go through one at a time, six different medications.

By the third medication and the twelfth medication dosage adjustment, many patients are like, “Forget it, all this stuff does is make me feel bad.” By brain imaging, the physicians are able to more accurately target the treatment. So when we go to court, we’re able to show the third element. That is compliance. The defendant is amenable to treatment. So I am using SPECT brain imaging for damage control, mitigation of sentence. What we’re saying is, “Judge, the state wants you to put so and so in prison for X number of years, that’s going to actually harm the brain, make it more likely that this individual will commit more crimes of a more violent nature”, and we can prove this easily, “if they are sentenced to prison. Instead, why don’t we solve the problem, Judge, because while my client has been out on bond, he’s been in treatment for 5 months.

Here are all these different things that he or she has to do and believe me, it’s usually a lot. It’s not just go to counseling a couple of times a month. It’s nothing like that, it covers everything.” So, there is a problem that shows up on that set of brain images or any of the other testing, it’s dealt with. In other words, each person’s treatment plan is based upon their particular mental disorder, mental illness or physical disability. They are provided with specialized treatment to make the entire brain healthy because it works better that way and that’s the most effective type of treatment. Finally, we have to show amenable to treatment and we do that by having our clients comply with treatment for many months before they go to court. During the time I’ve been using SPECT brain imaging, every single time I’ve used it, the court has found all three criteria were met.

I’ve had only two people who were sentenced to prison anyway because the departure ground means the judge can do it. It doesn’t necessarily mean the judge should do it. Unfortunately, in those two cases where people were sent to prison, despite our best efforts, we were frankly dealing with judges who can only be described as light on the science. Now, when people are light on the science, what that means is they either don’t believe it, they want to believe in moral things that may conflict with science things, or they just don’t have enough information in their head and haven’t thought about it long enough from a scientific point of view. A lot of times, people will believe something because they want to believe it rather than because it is backed by facts, logic and the reason.

When we use SPECT brain imaging in a mitigation of sentence, negotiation with the prosecutor or a full-blown sentencing hearing, we are definitely lazering in on facts, science and the logical reasoning. This is a very technical area of the law. I have tried to train other lawyers to do it and it’s a long process. I happened to be very lucky in that my family has a very deep medical background, so medical things are very natural to me. But for a lot of people, to go out, get an undergraduate degree, then follow that up with the degree in law and then by the way, they needed to go study brain science for a year, they are not going to do that. They don’t have the time; they don’t have the interest. I do and I’ve always had an interest and so this was merely an extension of what I’ve been doing. I actually wanted to be a doctor but that never happened, I went to law school. However, we are making inroads.

The American Bar Association has asked me to write a chapter on brain imaging for lawyers and I am hopeful that if we have this conversation in 5 to 10 years, I’ll be able to point out a large number of lawyers routinely, not once in their career but routinely, using different types of brain imaging technology as the technology improves and our understanding of the human brain grows over time.

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