Why Are Brain Scans Performed On Sex Offenders?
I became an assistant public defender July the 2nd, 1990. It did not take me very long to figure out that a large of number of my clients had behavioral problems. They were getting into trouble over and over again. Each time someone got arrested again, the arrest resulted in a harsher punishment if they lost their case. Rationally, it didn’t make sense for people to be getting in to trouble over and over again. Surely they could see that this would be more painful. So I began looking around at my clients very carefully, looking at case files, looking at history, looking at patterns and I had the misfortune and good fortune of having someone in my family with a major mental illness, bipolar disorder, to help me understand.
I say misfortune because dealing with that person was highly traumatic for everyone involved. I say fortunate because one night I was sitting there looking at my files with this checklist for bipolar symptoms and within my case load, I found sixteen clients that needed screening. Sixteen! That is when I began mental health testing. We are talking early 1990s.
In 2005, I began using spec brain imaging. Today, a lawyer is negligent if brain imaging motions are not filed to have the defendant scanned for mitigation of sentence in death penalty litigation. Also, a rising number of judges and criminal law specialists are saying the failure to perform brain imaging in a death penalty case for purposes of litigation is per-se negligence, or negligence from the get-go.
I would expand that further. Lawyers who do not perform mental health checks on their criminal defense clients are negligent in my view. I am not a doctor with a degree in advanced nuclear imaging, but I can tell a round ball is different from a crumpled sheet of paper. That’s the dramatic difference we are seeing between healthy normal brain images and every single set of client brain images I have seen since 2005. We have eleven years of data now and I am beginning to think that as a part of criminal intake, lawyers should be screening people for mental health issues. Eleven years and one hundred percent of those individuals are producing and have produced abnormal brain scans. Shocking but not really: my database of brain imaging evaluations only consists of criminal defendants who are not innocent and need a legal reason for mitigation of sentence. So, my database is going to be skewed.
I find it highly unlikely that if we would do an equivalent number of brain scans for people just off the street that you would find one hundred percent of them have highly abnormal brain scans, yet when I look at my client base and when we are working with people who are factually guilty with or without prior records, we are finding time and time again there are these brain problems and Florida has a specific rule of criminal procedures that quantifies statutory law and case law about how to use brain imaging in all sexual offense cases to give the judge the discretion necessary, in order to impose a non-prison sentence. Most of these offenses we have been talking about with the exception of misdemeanors, carry mandatory point based prison sentences if someone enters a plea for no contest to guilty.
There is an entire body of work on how to negotiate plea bargains effectively starting with “strength of a case”. So litigation will always be part of mitigation. Where I am most disappointed, is when I look around and I see that prosecutors and defense attorneys are not utilizing this material to solve the problem of the crime. Instead, they are just locking people up for a period of months and years, releasing them untreated and back into the general public. This is a negligent, dangerous thing for our lazy state legislature to do to the community. We also need to consider whether or not we have cruel and unusual punishments going on. Defense lawyers love their arguments. I am no different, but I am beginning to think that our entire sentencing scheme within the State of Florida and possibly nationwide, is unconstitutional.
The evidence keeps coming back; people are committing crimes including sex offenses, because they have brain issues. No one wakes up in the morning and thinks to themselves, gosh I hope I have a brain problem that results in a major felony that should put me in prison for years and get labelled as a sexual offender or predator for the rest of my life. Just does not happen.
Should Someone Hire An Attorney If They Suspect They Are Being Investigated For Sex Crimes?
Law enforcement officers can lie to people. In fact they are trained to lie. This runs counter to what everybody believes and wants to believe. When someone is first contacted by a police officer and the officer is trying to act as nice as they possibly can in order to get information, they should immediately ask to speak to an attorney. Some techniques involved have the police make you say things during a recorded statement that are not true in order to get the person who is being accused to make statements that will damage their case later on. They also use the good cop, bad cop scenario. Law enforcement officers also use controlled phone calls where they will have someone call up and say something like, “I know this is all behind us; this happened some time ago, but I would just sleep better and I would feel better if you just admit it.”
The whole purpose behind that phone call is to use that illusion of a safe, emotional appeal in order to get somebody to say something that can be taken out of context. Think about it: have you ever been bugged by someone to the point where you will say anything to get them to shut up and leave you alone? Of course you have. Especially if you are a parent. The police know this and they use this against you. People have been arrested and falsely charged just to get someone to quit bothering them: “fine! I’m sorry! Now will you quit bothering me at work?!?”
The most important thing to remember: the truth does not matter. Not at all. What matters is what police officers, judges and juries will believe what happened. It is very important that people not position themselves in a weakened legal state out of fear of legal fees or just plain ignorance. This is the one time you do not hope for the best and rely upon hope alone. Ask for a lawyer if questioned by law enforcement, simply hang up if you are being set up with a fake forgiveness call, and call a criminal law specialist immediately.
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