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How Has Your Experience Been In Handling Criminal Cases In FL?

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 began practicing July the 2nd of 1990, and I began with criminal law and stayed with it throughout. Early in my practice I identified that large numbers of people had mental health and addiction disorders that were primarily responsible for why they were in legal trouble to begin with. However, in the early part of my career I was more focused on the trial aspect and very focused on becoming a specialist. It’s a very hard thing to do: I wanted to go through the requisite number of trials that you have to have, and I wanted to take the test, which makes the Bar exam look like kindergarten. Throughout the process, I kept an interest in mental health issues, and by 2002 I was certified by the Florida Bar as a specialist in criminal trial law, and that’s pretty much all I’ve done ever since.

Why Do You Believe That Florida’s Crime Problem Is Related To Medical Disorders?

This is probably one of the most shocking things that I could have ever found in my career because I did not expect this at all. Like most people, I was raised with the paradigm of crime and punishment. If there is crime and it is proven, you want to have a fair process; then there is punishment. There’s all this focus on the fairness of the process; and when we look at the fairness of the process, we find out that when law was originally created, it was a check and a balance on the power of royalty in Europe, in particular, the United Kingdom. As a result, they had certain beliefs back in the 1500s and 1600s about law and about people. For example, there is a doctrine in law known as all people are presumed sane.

Early mental health and criminal law focused on issues, such as sanity and what does sanity mean. There wasn’t really any understanding of mental health with any level of sophistication the way we have today. And when I started out as a lawyer, I had a family member with bipolar affective disorder, who was a check writer. Now, check writing is not as common of a crime as it used to be. It comes in many forms: worthless checks and forged instruments — meaning taking someone else’s check, signing a false name on it then cashing it.

This type of crime can be an indicator that someone might have bipolar affective disorder. I went through 78 cases in my office one night; I was really stressed out dealing with this particular family member, and my way of dealing with it back in the early ‘90s was to throw myself in my work. Then I found that 16 of 78 people had clear indicators for bipolar disorder, and that was just based upon their prior record without doing any mental status exam or having an expert involved. I have to tell you, when I looked at that, I was shocked. And for a long time I started paying very close attention to the fact that many of my clients had mental health problems when they were, in fact, guilty of crimes. Now you have to remember that not everybody’s guilty. I totally get that because my early training focused on fighting and defending, not mitigation of sentencing at all although that’s a part of every case.

By 2005 I had a procedure down where we had a checklist to see if somebody had mental health issues. I had already created an entire self-help program that we internally called Coping with Stress During Criminal Prosecution because nobody calls a criminal defense lawyer after a great day with the cops. When I started doing brain imaging, I was very excited because I anticipated that this would help us determine who had real brain problems and who was malingering. As it turned out, every single person that I’ve sent for brain imaging in an 11-plus-year period of time had serious brain problems. You couldn’t tell by looking at each person.

To outward appearances, they might appear normal. They were flying under the radar, yet we would get these cases where people would be charged with some horrific crime, after 30 or 40 years of living as a perfectly normal adult, then have brain imaging done, and we were absolutely horrified because in each and every case that we’ve had brain imaging performed, we’ve not found just abnormal brain scans: we have found highly abnormal brain scans. This has led me to really question if a crime is due to a medical disorder. The more I think about it, the more I see it.

For example, yesterday I was reading an article about a traumatic family law case where a man killed his two children then killed himself. These are not the behaviors of people with healthy, normal brains. The word needs to be spread, and we need to have a deep conversation about the very paradigm of crime and punishment, and this is why I advocate crime and treatment. This is why I think that we have to really ask ourselves: is crime really a medical disorder that is unrecognized and undiagnosed?

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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