Modern Criminal Defense Systems

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.

Okay. Today, we are going to talk about criminal defense systems and it is critically important to understand that when you are reading material online as you are looking for a criminal defense lawyer, you are going to find a lot of nonsense. For example, you are going to find social media reviews that mean absolutely nothing compared to the Florida Bar’s official rating system, which is, you are a certified specialist or you are not. And you are also going to find nonsense such as lawyer as a superhero. There is even a site called super lawyers and they designate certain lawyers as super lawyers, yet the bar does not even recognize it.

So, instead of a lawyer as a superhero, let’s look at how criminal defense is handled in the state of Florida in the modern era. And that is one word “Systems”. So, we are going to basically talk today about criminal law systems and we are going to cover three of them. One of the most important is keeping you and your family and loved ones informed. We have a total system for that. And legal systems are critical because they do not rely on an individual; they rely on a set of procedures. For example, we have a procedure that when you contact us, one of the first things we do is immediately send you a free electronic book, which you can download into your phone or a tablet and that is part of our system coping with stress during the criminal prosecution. We have systems to keep you informed about the status of your case. For example, every client gets a copy of what is called the Discovery Exhibit. The evidence that the state says they are going to bring to trial.

You also get a system known as Dress Instructions for court and you can think of it as a dress for success in court because it is scientifically designed. So, we have an entire system that comes under the category of, I guess you could say, client relationship management simply because you need information and you need it at the right time. A lot of lawyers who do not use systems make a terrible mistake and that is, they rely upon constant office chats and they try to merge counselor at law with the mental health counselor. The problem with that is you have paid the legal fee for criminal defense legal services. When a lawyer engages an unproductive work and tries to do something that the lawyer, quite frankly, is not skilled at mental health counseling being comforting, that is a waste of your legal fee because the time that is used for what is basically comforting you or your family is time that is not used defending your case. So, it is very important that systems are used in order to keep you informed to reduce your stress and make the process bearable because let’s face it. Nobody wakes up in the morning and says, “I sure hope I get arrested and prosecuted”. I mean that would be insane, yet people do get arrested, they do get prosecuted and they do need emotional support as well as factual information so that they can make tough decisions later on and sometimes early on in a criminal case.

Now, the second system we are going to talk about is what is known as a defense system. In the beginning of your case, we file a series of legal pleadings. And these are things such as a written plea of not guilty instead of having you go to court in front of garden country, 250 people and the judge bellows out your name, you come down to the front, stand at the criminal defendant podium and then the prosecutor reads out the charge and the judge asks the simple question “How do you plead”. Well, that is not the time for other types of legal proceedings to go on. Many judges at arraignment court, sometimes called Plea Day in some counties, will not even hear a bond motion, it has to be set separately.

So, why should we have you go to a legal proceeding that is basically pointless court? We don’t. And so instead, as part of our system, we file a waiver of your appearance at arraignment. We also file a notice of discovery. This is how we get a witness list, police reports, scientific evidence and a number of other things that we have to look at, examine, compare to the case law, look at the statutes, the rules that apply and decide which evidence is admissible, whether evidence is inadmissible, what type of other legal pleadings to file because big motions in criminal law are quite often things like a motion to suppress evidence because it has been illegally gathered. These are extremely technical and they are not something that a layperson can sit there and research the law and figure out on their own. A motion to dismiss is another example of a major motion that requires a lot of discovery beforehand. This is all part of a defense system. There are systems for jury selection should the case go to trial. There are systems for cross-examination, there are systems for closing argument. So, basically, what we are talking about is an entire system that you can put under the umbrella of a criminal defense system that has many subparts below it. And we use that to help you get the best outcome obtainable.

What happens if it is a case that we often call a Bolt of the Lightning case. You will win at trial if a bolt of lightning kills every witness and destroys all of the evidence simultaneously. This has never happened, probably never will, but you do have these cases of law. And so, we have an entire mitigation system. For example, you may not know this but under Florida law, there is a point system that says under one part of a rule that if you score certain number of points, the sentences must be a state prison sentence in a particular type of felony case. And there are many particular types of felony cases where this applies. However, at the same time, that same rule codifies a section of state where the legislature of the state of Florida has passed bills and governors signed them into law. And this has resulted in 11 different grounds of mitigation. Most of these grounds, quite frankly, are almost never used. One of them is a legitimate, uncoerced plea bargain. What we have found that prosecutors would rather do and quite frankly, for political reasons, is they would rather substitute and reduce charges than checking that box that says, “Legitimate uncoerced plea bargain”. So, right away, one of the 11 is out of the window. And then, there are other ones that very rarely apply. However, there are some that are more likely to apply and one that I feel is up and coming and going to be the next big thing in criminal law is actually something I have done at this point for over a decade-and-a-half and that is the specialized treatment departure. We have an entire system for grounds of mitigation and juvenile misdemeanor and felony cases. However, one of the most important in all three is brain imaging based neuroscience because it allows us to use the specialized treatment departure.

Unfortunately, many people get played by the system and many defense lawyers really are not familiar enough with mental health or substance abuse issues to help their clients get effective treatment. I mean think about it. Rehab, as an industry, will take 25 to $35,000 for a 30-day inpatient program in a heartbeat, promise all this aftercare but when you will ask hard questions and questions, as Tony Robins points out, really are the answer. When you ask questions of these programs such as “What is your 5-year relapse rate, give us real numbers even if it is anonymized data”, they all have the same response, “Oh, we cannot give you that. Would you like a testimonial?” And I am always the guy in the room going, “No, I do not want a testimonial. I want science, I want to know what works and what does not. Unfortunately, Florida’s drug court program, absolute waste of money, absolute failure path. We will have a graduation rate depending on your location in Florida of 85 to 88%. When you ask the hard question, what’s your 5-year relapse rate, suddenly it is crickets. All you can hear are the little insects making noise, the buzzing of mosquitos because they know the answer, they do not like the answer or they are in denial. And all of them know the legislature refuses to actually study how effective drug court is.

This is why when I do seminars in different states as they are adopting these different types of diversionary alternative programs, one of my slides comes right out and says, “The failure of Florida’s drug court”. And the reason is not because people are failing to graduate, the failure is that people are not diagnosed first and treated second. There is this rush to treatment and this belief system not based in science that if you just have enough willpower and you do the 12 steps that you or your family member is going to be just fine. Unfortunately, that works for about 3 to 5% of the population and I urge you to challenge me on that and research it yourself. In particular, a good source is Google Scholar as opposed to just a Google search that gives you somebody’s opinion instead of actual science.

So, at the end of the day, we have three basic systems in criminal defense with our firm and those systems are a basic legal defense system and mitigation system and a system designed to keep you fully informed and reduce your stress.

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.