How Do You Use Crime And Treatment To Defend People?

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.

First we begin with education because we have to educate the individual and the individual may be resistant to education. However, it’s kind of like anything else that happens in your family. I’ve said this for a long time. Family will bust you. If you say something in confidence to a family member, they’ll, invariably, tease the daylights out of you in a family gathering. Family will bust you when it comes to individuals who’ve been arrested, three, four, five, six times, and they don’t want to say, “Yeah, I’ve got a problem with my brain.”

That’s very embarrassing for them, and they want to say “No, no, no, the cop didn’t like me,” or they hang onto some fantasy flimsy defense. The most common example of this is when someone will say, “Well, the police violated my rights because they did A, B or C.” If they are asked, “Were you doing anything illegal?” they don’t want to touch that; they want to focus on that technical defense. That’s where the educational role comes in. We begin educating what I call the patient defendant. Once we get them on board, we want them to have a comprehensive diagnostic evaluation, including brain imaging done, as soon as possible.

Normally, I use it in negotiations, and I use it in contested sentencing hearings under a specific departure ground unique to Florida. In other states I would still use the material; I would just do it differently because the rules are different. Rule number one is know the rules. And so in Florida I want the person to get the evaluation early so that I have a compelling story to tell, whether it’s to the court or the prosecutor. “Yes, this person did A, B and C and look at what they’ve done since then. They went and got a diagnostic evaluation, and this is what was revealed. They recommended the 17 different specific individual steps that this person needs to take over the next several weeks, months and years.”

I have my patient defendant keep records of the implementation of the treatment recommendations because these recommendations are not simple. They’re not as simple as you go to the mental hospital, or you don’t. Almost no one goes to the mental hospital by the way. They’re not as simple as counseling or medication. Things are looked at such as: is the brain getting enough oxygen? If it’s not, how do we re-oxygenate this person’s brain? Do we go as far as hyperbaric oxygen therapy or do we do cardiovascular exercise? Can they handle cardiovascular exercise? Those are the types of things they’re looking at: physical fitness, nutrition. Everything you put in your mouth is a drug of some sort. Does this person put things into their mouth, including alcohol and drugs that damage their brain?

The treatment plan is going to be very broad. It may cover supplementation, it may cover medication, it may cover individualized counseling, or it may do all three plus group counseling. There are a number of different things because each treatment plan is customized for that individual, and it’s going to take time for that to start working. This is why I need people to get into it as quickly as possible because, once they do, in a felony case, I’ve got six months to work with, maybe seven, and in a misdemeanor case, I have two or three, and I want to be able to say what my client has done because that’s not only a good show of faith: it also meets the requirement under the rules of criminal procedure that the person is “amenable to treatment.”

I have to show three things under the rule. I have to show that the person has a mental health disorder or a physical disability. This is where brain imaging is powerful. It becomes a yes or no. The second thing I have to show is that the person needs specialized treatment, not just general treatment. The legal system is all about general treatment. “What’s your name?” “John or Jane Doe.” “What’s your charge?” “DUI.” ”Is this the first one or have you had more?” “Oh, this is the only one I’ve ever had.” “Oh, okay, you go to Level 1 DUI counseling.” That’s your entire diagnostic protocol; it’s pretty general. If the person has had priors, DUI counseling fails so spectacularly in Florida that we’ve created Level 2 multi-offender DUI school, complete with DUI counseling, and it fails just as badly because it’s generalized treatment.

Each person gets a customized treatment plan made just for them. We meet the specialized treatment criteria, and by the end of the day, when it comes down to settling the case, whether I’m looking for a negotiated dismissal of charges or a probationary sentence that is treatment-oriented, we can show what we need to show under the law: the person has a problem. The images make that very clear: they need specialized treatment. The diagnostic evaluations and comprehensive treatment plan come in a three ring binder, which is enormous. It is not some half-page of recommendations or a prescription. It’s a lot of information.

We’re able to show specialized treatment. Then because the person has started early in the process, we’re able to show that they are amenable to treatment, and that’s whether we’re using it at a contested sentencing hearing or at negotiations. There are many people who are walking around with clear criminal records because they have a brain problem. They did something that they would have never done in their right frame of mind. We have worked to solve the brain problem. Sometimes they went through six months to a year of deferred prosecution. We try to avoid diversion programs because those are terrible for the client; they don’t focus on effective treatment, but they focus on looking for ways to punish somebody and kick them out of diversion instead. I don’t think that’s very helpful. At the end of the day, we’re able to speak with the prosecutor or the judge and say, “This is the smartest thing you can do.”

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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