Crime And Treatment – Patient Defendant And Changing The Paradigm

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.

Welcome back to Florida Criminal Law TV. My name is Stephen G. Cobb, and Attorney at law. Now, we were discussing in our last brief episode how to use this type of technology neuroimaging in the courtroom because basically, when someone comes to me and it is a neuroimaging-based case, I know that this person has two problems right away. Number one is obvious, that is the legal problem. So, we have to take care of the legal problem. However, why does this person have a legal problem if they are actually in fact guilty? It is because they have a brain problem. Now, I do not have a doctorate in medicine, and I do not have a doctorate in histopathology but from my limited experience and training in the sciences, I have learned and possibly this is still true that human behavior is not controlled by the left foot.

Now, assuming that is correct, it makes sense to take a look at the brain. So, we get these brain imaging-based diagnostic evaluations as I mentioned in the last video, they are enormous. And we always include a set of what someone’s brain should look like because we are going to get multiple images of this person’s brain. And the images come in two basic categories. They are surface images of the brain that show relative blood flow and the second ones are going to be deep-brain structures on the imaging and they are going to show where the blood flow is what it should be and what it should not be. How do we know that? Well, we take an age – and when I say age, I mean age range – and gender-based pictures of people who have healthy, normal behavior, and as a result, we are able to determine healthy, normal brain images.

So, when you have healthy brain images for a male who is between the ages of, say, 24 and 27, they are going to look different than the healthy images from a female aged in her 40s. So, we know that in advance. So, when we go to the courtroom or we do negotiations, we make sure that we have the appropriate healthy brain images to compare them to our patient defendant’s brain images. Now, notice the language. I said, “Patient defendant”. We really need to start thinking in terms not of criminal defendants but of patient defendants because crime is not normal behavior. That is the biggest system of mental health problems imaginable. So, how do we use this material once we have gotten this three-ring binder that is enormous and we have pictures of what the brain should look like and pictures of what the brain actually does look like as well as the treatment plan to make the images that do not look so good look a whole lot more like they should? In other words, to properly treat that person so that they never get in trouble again and that they are not dangerous to society and the public is true rehabilitative, restorative justice.

Well, first, we take these images and when we get the report, we review it carefully, we make sure that there is nothing inappropriate in the report such as attorney-client confidential material and that is usually never a problem. I have worked with this particular clinic for many years. And as a result, we get this enormous report, we get a proper HIPAA release so that we are in compliance with privacy laws and we release this to the prosecution. Now, why would we release this to the prosecution? These are cases where basically the defense will win if a bolt of lightning comes into the courtroom, and kills every single adverse witness while destroying the evidence simultaneously. I have been practicing for over a quarter of a century, I can assure you that no matter what the weather was on the outside, I have never seen this mythical bolt of lightning and it is not going to come and do that anytime soon.

So, with these types of damage control cases, mitigation cases, instead of a large amount of prison time for a non-violent offender, what we are suggesting to the courts is a treatment-based sentence with probation, or community control, which is another way to say house arrest in felony court. There are many different options. Sometimes, it is a diversion program supervised or unsupervised but with an accountability mechanism to make sure that the person is following the treatment. So, the first way we use them is we get the report, we make sure we get healthy brain images that are appropriate to that person’s gender and age, and then we open up negotiations with the state of Florida. What if that does not work? If that does not work, we can often enter a plea of no contest and during the time the case is going on, months are passing, so we have got to be able to show certain things, we have plenty of time to do that and we do not ignore the legal side. In one case, for example, someone was charged with four counts, four different felony counts, which made their points and their exposure up here, and then, when two of them were properly dismissed because this person was legally overcharged, that reduced their exposure significantly.

Now, we did not have a defense for the other two counts. So, this particular individual, since negotiations did not work, we went ahead and had a sentencing hearing. Now, sometimes you can do a sentencing hearing without an expert witness, but this is rare. Most of the time, if it is a felony case, misdemeanors are different but in a felony case, you are normally going to need a physician to testify and someone who knows what they are talking about when it comes to brain imaging. This is absolutely critical and this is why the state of Florida almost never has called someone in a brain imaging case. I have never handled one where they did and I have done more of these SPECT brain imaging criminal defense cases than any lawyer on the planet. So, if there were going to be experts from the other side, I would have seen them by now. I have done this since 2005.

And the reason they do not have them is that the critics of brain imaging that you can find online are really good at speaking to the American Bar Association Journal, putting up a website and calling it a quack watch, and doing all kinds of things like this. What they are not so good at is doing what is called a Peer Review Publication, meaning it is not somebody just spouting their opinion, there is evidence. So, they have a problem with peer review publications. Secondly, they have an even bigger problem because most of the critics of this type of technology, the ones I am aware of, cannot even take a stand. Why can’t they take a stand? Well, in order to give an opinion as what is now called an Opinion Witness; in Florida, we used to call them Expert Witnesses, you have to be qualified through a procedure where both parties get a chance to question the witness to determine their qualifications to testify and render an opinion as a witness.

So far, I have not had a hearing where someone from the other side has been qualified as an opinion witness. So, if you go online and you look up SPECT brain imaging and criminal law and you find critics, just keep in the back of your mind these are the people who can write online but cannot testify in court. Now, when we come back, we are going to go into the mechanics of this type of in-court testimony for major felony cases involving SPECT brain imaging as part of crime and treatment.

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.