Advanced Case Settlement Strategies And Specialized Treatment Mitigation

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.

At this juncture, we have covered pre-trial defenses in two different videos. We have also covered trial defenses including bench trials, and jury trials and a specific type of trial is a bench trial for not guilty by reason of insanity. Now, we are going to pivot and we are going to talk about what could be put under the category of damage control. What do you do when you have a case where it looks like your client is going to be convicted of some or all of the counts no matter how hard you fight? Well, this is where we move into mitigation. Now, no one wants to hear a plea offer when they are hoping to get completely off of the charge. And this can sometimes create a lot of frustration, “Why is my lawyer giving me a plea offer when I have told them that I will not take any deals?” Well, basically because the law says we have to. Otherwise, we are not keeping you fully informed.

So, that is why we do such things as send you copies of blank plea forms, as well as copies of discovery, and this, can sometimes include, in some cases, copies of a settlement offer because you have a right to know about this. What if the settlement offer is too much punishment? And frankly, when you are talking about the state of Florida that is virtually every case. So, what do you do? Technically, this is known as the mitigation of sentences. And I am going to use a felony example although this applies in misdemeanor cases. Now, in felony cases, before the judge can impose a sentence and take a change of plea from not guilty to no contest or guilty, the judge has to have a scoresheet. What the heck is that? Well, under Florida law, we have a rule that basically says, “Points are scored for a variety of reasons and none of them are good”. More points are bad. The magic number is 44.

If a person scores more than 44 points, they must be sentenced to a state prison sentence unless one of 11 mitigation grounds is met. Now, I use an example I have used for many years, aggravated battery or burglary to the dwelling, occupied or not. That is going to score above 44 points. And for example, aggravated battery is a level 7, a second-degree felony with a maximum of 15 years. It is going to score 56 points, well above that 44-point threshold. And on top of that, that is only in the very first category on a rule 3.992A scoresheet. So, that is where the points are calculated under A. And so, that first section is going to have 56 points, there is going to be a section for points to be scored for prior criminal history, there is going to be a section that covers a victim injury, so if someone has suffered a fairly severe injury, that can be even more points than the initial charge and a lot of different types of charges including aggravated battery.

So, when looking at all this, at the bottom of section A, there is going to be a number and there is some math. And if the number is above 44 in the earlier sanctions when it comes to the math area, there is going to be a final number and that is going to be the minimum prison sentence in months. And a lot of times, people see that and they have no experience with the legal system or they have experience with it because if they are arrested previously and sometimes think they know everything and they’ll say, “Oh, the most I can get sentence to is this number on the bottom of the 3.992A section of the scoresheet”. And the answer is no that is the floor.

For example, in an aggravated battery case, the floor might be for, pick a number out of the air, 27.2 months. That is the floor. The top-end of the guidelines is 15 years or 180 months. So, that is the range. Now, what if you have a situation where that is an inappropriate sentence in a particular case because as I mentioned earlier, Florida over-punishes routinely? And that is for political purposes but that is beyond the scope of this video, so let’s talk about mitigation.

Well, under rule 3.992B, which I tried to say earlier for A, this is separate, B is where the mitigation grounds are listed and there are 11 of them. Now, a lot of them do not apply in most cases and you almost never see them used. For example, my personal favorite example is the first one. Legitimate, uncoerced plea bargain. How politically useful is that for a prosecutor who’s running for re-election every 4 years to agree to a lesser sentence in an era when no one is winning elections as a prosecutor by going, “We need to be smart about the problem of crime. We need to do things that are different so that we get a better result and we prevent future crimes”, you are not hearing that. What you are hearing is like the 2016 election, “Lock them up, throw away the keys”. That is what a lot of people feel in the public.

And as I am recording this, on this date, this is the day after primary elections across the country in 2018 and sure enough, for the first time since 1932, a judge was recalled in a case by the voters because the judge imposed two lenient a sentence on Brock Turner. So, as a result, you have to factor in how judges are going to be processing this today and moving forward. I think it makes a big impact. As we are looking at these grounds of mitigation, where do we start using them regardless of the political climate? First, we use them in negotiations because this may be enough to sway a prosecutor to substitute or reduce charges. You never know. So, we want to take a look at using it in the plea-bargaining process. And secondly, you can also use it in scenarios where you are going to have a sentencing hearing. Perhaps the prosecution is not going to back off a certain amount of time in prison. But maybe they will agree to a capped amount of time in prison and you can argue it out in court in front of a judge. That is known as a Capped Plea. And a sentencing hearing then follows. The judge cannot impose more than the cap.

Sometimes, the prosecutor will not agree to a cap at all, or if they have offered, say, 30 months in prison, the cap they will agree to is, say, 60 months in prison where the maximum is 180 months in prison. So, this is a delicate part of defending a case in the mitigation phase to plea bargaining. You plea bargain where you can get a yes and for those things, you cannot get a yes when it comes to mitigation of sentences, you bring them to the judge.

Now, the judge is not limited to just those 11 grounds of mitigation. However, as an experienced criminal defense attorney, I can tell you, you’re a lot better if you stick with those 11 than try to create something out of thin air because that is more likely to be shot down. One of the 11 mitigation grounds that I use quite frequently is what is known as Specialized Treatment because back in 2005, I sent my first patient defendant. Now, notice in this video, I just said, “Patient-defendant” and in other videos, I said, “Criminal Defendant” including the series. There is a reason for that. It is because I sent my first client in 2005 for a single photon emission computed tomography brain scanning. That’s a mouthful, let’s make it easy SPECT brain imaging. And what they basically did is they said, “For this person at their age and their gender, this is what their brain image should look like for a surface scan and this is what it looks like. And let me tell you, they were not even close. This is what the deep brain structure should look like on a person your client’s age and gender. This is what they actually look like. And again, it was like not even close.

So, we read through this report that is about this big, it is in a three ring-binder, half of it is diagnostic material, half of it is treatment material because people will ask, “What is the treatment?” How am I supposed to know that? I am not the doctor. The evaluation has not been done, we let the doctors figure out what type of treatment. But usually, when we do these types of evaluations, it is going to be a series of things ranging from counseling to self-help, very specific things, taking of pharmaceutical grade, nutritional supplements because they have medicinal properties as well as medication and a number of other different things that you may or may not have heard of such as HBOT, which is where they put somebody in a chamber like when someone has the bends from diving, they have come up too quickly and they basically oxygenate the person’s brain by using that type of chamber. We had a judge locally after whom Florida’s veteran’s court program was named after. He was injured in an IED attack because he was also a reserved air force general at the time. And he was in Afghanistan and he was hit by an IED, broke all of his teeth, and caused severe brain injury. And for months and months and months, he was in one of the best medical facilities the military has. They spared no expense and could not help him.

So, he went to LSU and had a SPECT brain imaging done. They take one look at it and they go, “Oh, he needs HBOT”. Now, a lot of people are like, “You are going to help my brain with high-pressure oxygen, right?” It is kind of skeptical, which is understandable. He recovered, went back on the bench, and only recently, retired after many, many years. And his story is so compelling that Florida’s Veteran’s Court program is named after him in his honor. A fantastic judge. And he is one of the only judges in the first judicial circuit I have not done a brain imaging sentencing hearing in front of but he was a county court judge and did misdemeanor cases and I do fewer of those types of mitigation hearings in front of county court judges handling misdemeanors than I do in felonies.

So, we have the person evaluated and we have three basic elements we have to prove. Number one, we have to show that there is a mental health disorder or physical disability that is unrelated to drugs or alcohol. Now, immediately, a lot of my colleagues go, “Oh, my client was drunk, forget it”. No, that is wrong. That is inaccurate. You do a brain imaging because then, you can ask the doctor at a sentencing hearing hard questions like, “Doctor, could this, this, this, or that be caused by drugs or alcohol?” And in some cases, the doctor will say, “Well, we refer to that as exposure to toxic substances and yes, this, that and this could be as a result of alcohol or drugs but this, that and the other thing cannot be due to drugs or alcohol”. So, this enables us to give a more accurate presentation to the court than the old-school way of doing things where you have “Experts” who do not take a picture of the organ they are diagnosing. Think of broken arms, does that even make sense? Of course, not. And then, they give an opinion. And then, you have a battle of the experts. Imagine it is 1890 and this type of issue comes up in a broken bone case, there is no x-ray and one says that the arm is broken and the other expert says it’s not and the jury or the judge, depending on the type of case setup, is going to make a factual finding basically based on opinions without full scientific knowledge. Brain imaging eliminates a lot of that battle of the experts.

Now, there are critics of brain imaging and Professor Stephen Morris and Dr. Harry Woods at Emery, I am looking at you and I will give you the same challenge I have given you for over 10 years. You are very critical of brain imaging and Professor Morris, you have publicly stated in an article in the Journal of the American Bar Association in 2012 when author Kevin Davis questioned you, you stated that neuroscience has contributed nothing to our understanding of criminal law. And I replied at that time and I reply again today that perhaps it is you who have contributed nothing to our understanding of criminal law. And my challenge remains for both of you, bring your sorry tales to court and try to get qualified as a witness who can give opinion testimony. And do you know why? Ladies and gentlemen, I issue this challenge publicly to these two individuals because they have been very critical of brain imaging. And at the same time, they cannot take the witness stand. They would never survive the qualification process. So, as you are looking at this material online, on the internet, just be aware that a lot of people have opinions, they are critics, I suspect insurance companies that do not want to pay for it are throwing some cash out. I do not know this but I suspect it and if you know some inside information, please give us a call because I would really love to know the truth about that.

But be it as it may, when we are using actual witnesses who have the credentials to give testimony, what we are finding is quite striking. Number one, every single person I have sent for brain imaging who is guilty of a crime has not just had an abnormal brain scan, they have had a highly abnormal brain scan. Now, correlation is not causation. But when year after year after year goes by and you have done as many of these things as I have and you see ugly brain after ugly brain image, I mean come on, crime appears to be a brain disorder. So, if we can establish that the individual suffers a physical disability of the brain or mental health disorder unrelated to drugs or alcohol, we have proven the first step.

The second thing, we must show is that they are in need of specialized treatment. Again, we are talking about three-ring binder reports that are this big where half of the information is a treatment protocol and the other half is a diagnostic evaluation. These things are enormous. And so, it is the very specialized treatment you would never find in the Department of Corrections, which is focused on cutting costs in every possible way including and especially inmate medical care. So, the third thing we have to prove in addition to showing that yes, there is a problem and yes, they need specialized treatment, is that the defendant is amenable to treatment. In other words, they are going to do it. And we often recommend that this type of brain defense borrow Kevin Davis’s book title, I highly recommend you get Kevin Devi’s The Brain Defense by the way. It is probably one of the best books out there on how this rapidly rising area of neuroscience is impacting criminal law.

So, what we are finding is when we use this type of defense that we are able to solve the problem of crime one person at a time by an accurate diagnosis including brain imaging, and a customized effective treatment plan instead of the failure program such as 12-step and AA and NA and things like that and god forbid, Florida’s worthless drug court program and that is about the nicest thing I can say about it. And then, finally, we have to have, and this is not in the law but patient-defendant accountability. And this is what I tell the judge. I say, “Your Honor, the state is asking you to put somebody in prison for X number of months at X number of dollars and basically they are going to get out with a brain that is worst than they went in.” Is it more or less likely that they are going to get in trouble again? Well, if they have a bad brain, which led to bad behavior and criminal conduct, arrest, prosecution, and sentencing, and they are going to go to prison and be released, yes, their brain is going to be worse. They are more likely to get in trouble again. Not only harming the community, harming people literally but costing the taxpayers a fortune.

Basically, what prosecutors are doing for political purposes when they give you, the public, the tough-on-crime line, is they are lighting your tax dollars on fire. You are not getting any return on investment. And so, we point this out to the court and we also point out that the court has the power to require that the person follows through with a treatment. Now, if you have a family member with some type of behavioral disorder that is obvious to you and may or may not be obvious to them because so many people are in denial about them when you have patient-defendant accountability by using community supervision with a specific requirement that they show compliance with treatment, all the different things in that treatment report and treatment plan, then suddenly, something miraculous occurs. Well, it is not miraculous, it is logical. They get better and they do not get in trouble.

I had one guy who had an arrest for a violent felony crime once a year for a decade and after we did this treatment protocol, he was found not guilty by a reason of insanity. He was sent to the state hospital for a period of time where they would not use the treatment plan and they did not get good results. Finally, they began using it and sure enough, he got better. He was released. The court followed him and supervised him, as they are supposed to, for 5 years after he was released. And guess what? That case happened in 2006. As I am recording this today, 12 years later, he has not been in trouble again. What if we could use this across the board and take all of these cases where people are going in and out of the criminal justice system like a revolving door and actually solve the problem of crime one patient-defendant at a time?

Now, this is under the category of defenses in my defense series here. However, this also fits the mitigation of the sentence. And in reality, we really should not even call it that because it is so transformative. It is not so much mitigation of the sentence, it is solving the problem. It is using the power the judges have within the criminal justice system to eliminate stupid being the new smart and actually doing the smartest thing possible, saving taxpayers money, preventing future suffering, and solving the problem of crime one patient-defendant at a time.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.