What does the Criminal Mind look like?

AS a practicing lawyer, I like watching television and movies about lawyers about as much as you would like watching . . . a show about your day at work. Before you start to think that your televised workday is so cool, let me quickly throw some ice on that happy thought: Most of what everyone would see about your day at work would be fake, overly glamorized, and just plain wrong. 

For me, this happens whenever I turn on the news and *Surprise!* lawyers and/or crime is the topic. The dramas are wrong, the news is wrong, and it all is . . . wrong, wrong, wrong!

One of my favorite areas of crime and the law involves THE Criminal Mind (there is only one, apparently). Most of the time, these types of shows involve well-spoken psychobabblists deconstructing the (THE) Criminal Mind of someone who did something terrible. This equation degenerates into Law + Crime + Evil + Person = Crap. 

The saddest aspect of all of this nonsense is not the plight of the victim of this episode of made for media victimization. Rather, it is how the public as a whole is victimized by nonsensical thinking, criminal justice system psychobabble and the failure to solve the problem of crime itself. As a result, more and more people will be victimized by the failure of the criminal justice system to actually solve the problem of crime, not just this week's CSI drama.

So let's actually look, yes, look at a healthy brain and that "Criminal Mind."

First, let's look at a SPECT (Single Photon Emission Computed Tomography) scan of a healthy brain (bottom to top view):
 

Courtesty of the Amen Clinics, this is what a human brain looks like in a healthy, young adult. Notice how smooth it is compared to the next image:

These two images are from the perspective of looking from the bottom to the top, and are imaging scans of the surface only. However, a trained psychiatrist can use these scans in conjunction with other tools (patient history, neuropsychological testing and such) in order to make a more accurate psychiatric diagnosis.

Now, I am no medical doctor, but even a lay person can tell that the two images are different. One is healthy, one is not so healthy. Beyond that I cannot tell you much about these scans, except for this: Brain = Behavior.

This equation explains why people break the law - over and over again. People with brain dysfunction act . . . dysfunctional. Most "repeat offenders" don't think they are Jesus, they aren't controlled by microscopic space aliens and they do not hear voices. Some do, with tragic results. 

Thus the solution to the problem of crime is a matter of mental health. Up until the advent of neuroimaging, we could not see a living brain any more than you could look at someone's broken arm, squint your eyes and see the actual bone. Now, trained professionals can actually see the organ responsible for human behavior, make a more accurate diagnsosis, and prescribe a personalized treatment program based on that person's individual needs.

Of course, this is not nearly as much fun as vengence, but I submit that it makes more sense diagnose and treat the next Andrea Yates before she kills her children in a bathtub or someone dies in a domestic dispute.

Respectfully submitted,

Stephen G. Cobb

 

The Smoking Gun

For several years now, I have been asserting that there is a definitive link between mental illness and crime. To recap, repeat offender crime is caused by one of two factors:

1) A small number of repeat offenders have a personality disorder. Think of this as a willful desire to break the law due to bad character.

2) A large number of repeat offenders have mental illnesses that do not qualify for an insanity defense under Florida law, yet affect their behavior and cause criminal behavior.

This second view is very controversial: If criminals are simply “bad characters,” it would justify increasingly harsh punishment. Incarceration would then serve the dual purposes of protection of the public and retribution However, if some criminal are bad characters and others are not, we have a problem: Harsh punishments will not deter the mentally ill, and retribution becomes and act of cruelty.

The Bureau of Justice Statistics Special Report published in September of 2006 exposes the level of cruelty - and ignorance – prevalent in our society. While most of the public thinks that harsher punishment is the solution to the social problem of crime – to “teach them a lesson” and other such nonsense, the reality is that we are behaving like prisoners who hurt others without remorse: Our society is quite bluntly put, cruel.

• 45% of federal prisoners have mental health problems.
• 56% of state prisoners have mental health problems.
• 64% of local jail inmates have mental health problems.

This stunning document was produced by the United States government’s own Bureau of Justice, not some “bleeding heart” group. They used professionally accepted definitions and standards:

“Symptoms of a mental disorder were based on criteria specified in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV).” - Bureau of Justice Statistics Special Report, page 1, September 2006.

One final thought: The incidence of mental illness was probably understated because many facilities and many inmates refused to participate.

Florida Bar Board Certified Criminal Trial Specialist versus "Super Lawyers" and the Martindale-Hubble “AV Rating”

Florida criminal law is a competitive business just like any other professional service. If someone is the greatest lawyer in their field, yet have no clients, economically they lose. Yet if a mediocre lawyer is profitable, they win. Money isn’t the most important thing in the world, but for many, it ranks up there with oxygen. This is not ideal; it’s just how it is.

Lawyer rating systems marketed by law firm vendors are affected by the necessity to market legal services. Always remember this critical fact when selecting a lawyer in any field. There have been what I consider to be bogus attempts to pad lawyer resumes with labels such as "Super Lawyer" and an even older scam such as the Martindale-Hubble "AV Rating."

A Florida criminal lawyer is an expert (a specialist) or is not. There is no middle ground:

Florida Bar Certified Trial Specialist

* Must take an advanced written test created by other certified experts

* Must have a minimum number of legal cases tried to completion

* Must have a certain number of cases of a “serious and complex nature” tried to completion

* Must complete Continuing Legal Education (CLE)

* Peer Review requirements

* “Certified attorneys are the only lawyers allowed to identify or advertise themselves as Florida Bar Board Certified, specialists or experts.” – The Florida Bar

* Board Certification is recognized by the Florida Bar for a lawyer’s expertise and competence.


Martindale-Hubble “AV Rating”

* No testing

* No trial requirement

* No complexity requirement

* No CLE requirement

* Peer Review requirements

* Any lawyer meeting the legal vendor’s criteria can identify themselves as “AV
rated.”

* An AV Rating is not recognized by the Florida Bar – for anything.

Peer Review Requirements

Check out this gem straight from the Martindale-Hubble website:

"What is the role of the Martindale-Hubbell Ratings Specialist in the rating process?
Peer Review Ratings Specialists work closely with Martindale-Hubbell's larger law firm clients to educate, engage and assist their lawyers in the Peer Review Process and the marketing opportunities surrounding the Peer Review Ratings."

Let me tranlate that one for the general public - have all of your friends in the legal profession scratch your back and you will scratch theirs. There are no exams, no CLE requirements, and best of all, Martidale-Hubble has sold this pap to large law firms for so long, that many lawyers actually believe it!

I am not a "Super Lawyer" nor am I "AV Rated" by some marketing division of a vendor of legal publications. I never will be, either: Like many of my colleagues, I am a Board Certified Expert in Florida Criminal Trial Law. None of us can promise you a "win."

That may not be what our "pratice advisors" want us to tell you, but the public needs the truth, not a slick advetising campaign. "Super Lawyer" designations and "AV Ratings" are not even recognized by the Bar. They are little more than slick marketing to make you feel better. These "rating systems" imply a golden results in a legal field where we cannot promise a particular result.

Actually, experience has prove that telling it like it is consitutes the best marketing strategy.

Respectfully submitted,

Stephen G. Cobb
CobbLawFirm.com

The Florida Anti- Abortion Murder Act of 20??

This is not one of those posts that will please everyone. There is a critical abortion issue that must be addressed in the public forum, for this issue may arise before we have had time to debate it. Therefore, we must hold this debate now.

This issue comes in to play only if the United Supreme Court reverses Roe v. Wade and allows states such as Florida to make abortion illegal.

Here is the problem no one is talking about: What is the penalty?

Think about this carefully, regardless of your position. Here is the logical line of reasoning and where it leads.

1) What is the argument that posits abortion should be made illegal?

ANSWER: Abortion should be illegal because it is the murder of an unborn child.

2) What is the penalty for premeditated murder?

ANSWER: Florida Statute Section 782 states that the penalty is death or life in prison.

If some future Anti-Abortion Murder Act is passed, then the abortion murder sentence must be life or death. There is no logical way to make abortion an act of premeditated murder without a life or death sentence.

You noticed that I said "logical" and correctly point out that politicians are not always logical. Many have a tenuous connection to logic, at best. Yet what happens to our society if some future Anti-Abortion Murder Act passes?

Either 1) we have a murder statute section where the entire logical justification for it is a lie, or; 2) we imprison or execute doctors, women who have abortions, the nurses who assist and even the sister who drove the woman to the doctor.

I warned you that this post wouldn't be pretty.

Respectfully submitted,

Stephen G. Cobb
CobbLawFirm.com

NOTE: After this post was completed, I received a comment that caused me to check out another post that intrigued me from one sentence: "Life is life OR it's not." This is striking because of the incisive nature of the logic behind yes or no questions - they get to the truth rather quickly because the fuzzy avoidance of hard choices is eliminated quickly, and an issue gets distilled to its essential question rather quickly.

How to Solve the Problem of Crime

Here is a cost neutral way to solve the social problem of crime.

When a criminal defendant is arrested, they are usually held until they see a First Appearance judge within 24 hours of arrest. At First Appearance, the judge will often determine bond issues.

First Appearance is often a criminal defendant’s first contact with the judicial system, their first contact with someone empowered to solve the problem of crime. First Appearance judges can:

1. Learn the patterns of mental illness that fly below the radar. Substance abuse is an obvious red flag. Driving on a suspended license isn’t, but should be.

2. Order a Diagnostic Psychological Evaluation as a condition of bond. Do not order cookie cutter treatment such as Batterer’s Intervention Program, Anger Management, AA or NA. Diagnosis first, treatment second.

3. Impose a condition that the defendant follow through with treatment as recommended while the case is pending. A limited medical release can be required for the purpose of ensuring compliance with this condition of bond.

The key to effective intervention is diagnosis first. The failure to properly diagnose criminal defendants is why Drug Court, Shoplifters anonymous, court ordered AA/NA and Anger Management counseling programs are statistical failures: The wrong treatment is often worse than no treatment at all.

A proper diagnostic evaluation is not a fifteen minute question and answer session with a counselor with a bachelor’s degree. Such a drive through diagnostic session is a waste of the counselor’s and the patient’s time. Yet this is exactly how most court ordered programs operate.

The best practice is one of two methods of diagnosis:

1. Medicine: A SPECT brain scan by a well-trained psychiatrist, such as those at Amen Clinic. However, it is too expensive for a judge to impose it as a condition of bond. As the technology becomes more available, that will change. A full imaging and follow through will cost around $4,000.00.

2. Psychology: A Mental Status Exam coupled with Advanced Psychometric Testing, such as the MMPI-II and the MCM-III. A full battery of tests can be done for about $750.00 – well within the means of most who want to get out of jail.

A diagnostic evaluation and follow through treatment is not with the means of every single criminal defendant. However, it is within the means of most. After all, the courts have been imposing treatment without adequate diagnosis for years.

Just look at well that system has worked.

Respectfully submitted,

Stephen G. Cobb
CobbLawFirm.com

A Special Note To Florida Criminal Defense Lawyers

This is a departure from my normal material due to the new conflict case system Florida has adopted. There are numerous posts elsewhere about how this will hurt indigent people charged with crimes, so I will not dwell on this important aspect. Instead, we will focus on that subject most lawyers hate: Law office economics.

Florida’s conflict case system was drastically altered to make it more “cost effective.” Many Florida criminal defense lawyers are freaking out because they rely on the conflict system for much of their income. There is now less conflict business at lower rates. Here is how smart lawyers will survive the new system:

1. Raise your fees. A “fee for any budget” price war will cause legal fees to be driven lower and lower – among lower priced criminal defense lawyers, not the best lawyers. Service will immediately decline, and your clients will be the ones who suffer most. FANTASY - "The legal fee doesn't affect the quality of legal service." REALITY - The legal fee directly affects the quality of criminal defense legal service.
2. Get off of the conflict list. The new rates pay less than minimum wage. Taking a case under this new system is tantamount to admitting 3.850 IAC. FANTASY - "The new system will be cost effective." REALITY - Taking cases for less than minimum wage is a 3.850 waiting to happen.
3. Raise your fees. My minimum fee is $5,000.00 – plus costs – for any criminal case, even a misdemeanor. Raising your fees may seem counter intuitive, as there will be more lawyers competing for private practice clients. However, raising your fees will actually work. Remember, your banker will repossess your house and your vehicle, but not your kids. You can’t help your clients if you can’t financially help yourself. FANTASY - "No one can afford high legal fees." REALITY - Some can, those are the ones you want as clients. If you and your secretary give up your salary and benefits, you can provide free legal service - and your clients will get what they pay for.
4. Get Board Certified or get out. In the criminal defense private market, you are either a specialist, or you are competing against one. FANTASY - "I don't need board certification because I am just as good." REALITY - You will get kille din the marketplace unless you are extremely savvy.
5. Raise your fees. Your time spent defending a client’s liberty will never be returned to you at the end of your life. These seconds become minutes. Minutes quickly become hours. Hour after hour, you are quickly approaching the end of your time allotted on this earth. Value your time, and your clients will value you.
6. Never take “payment plans.” You can always spot the “Budget fee, payment plan” criminal defense lawyers. They are routinely late for court, always have schedule conflicts, frequently continue cases in the foolish hope that they will be paid, and they always have the most difficult clients. I have seen them get disbarred. FANTASY - "People need payment plans, they don't have the money." REALITY - If you take payment plans, you will chase clients for fees. They have lenders - with lawyers - who specialize in that. You are a criminal defense lawyer, not an interest free lender.

When you are overloaded with too many clients, too many cases, too little time for yourself and your family, you are hurting your client’s lawyer. Performance suffers, people will get hurt.

FANTASY – “I am a professional, money does not matter.”

REALITY – You can't help your clients with legal matters if you can't help yourself with financial matters.

That's just how it is.

Respectfully submitted,
Stephen G. Cobb
FBN: 0835171

CobbLawFirm.com

Crime is the Answer. Question: What Happens When Mental Illness Goes Untreated?

A mother throws her kids off of a pier in San Francisco. A mother in Texas drowns her children in a bath tub. At Virginia Tech, a young man massacres his fellow students. In each of these high profile cases, it was reasonably foreseeable that these crimes would occur because it was well known that these people were mentally ill.

Each day, the phone rings at my criminal defense law firm because someone has been arrested. Each day, my Assistant, Janice, prepares a report for me. This report includes information about the case, and unlike most criminal defense lawyers, includes information as to whether my prospective client needs to be examined for a hidden mental disease, defect or disorder. Guess what? We send about ninety percent of our clients for detailed diagnostic evaluations. In the past decade, two have come back normal. Two. So how do we solve the problem of crime in our community? The answer is blisteringly obvious: Mental health diagnosis and treatment.

Each day, people in this community are charged with crimes that are not high profile cases. These criminal defendants are not jumping off of a balcony flapping their arms claiming to be Jesus. Yet most have a hidden mental illness that negatively affects their behavior, mental illnesses that cause them to break the law.

The tough on crime, short on smarts crowd wants more incarceration – and it will cost you about fifty dollars per inmate, per day. This is more than a poor public policy. This is stupid. We can’t punish the Virginia Tech gunman, and even if we could, punishment is a poor substitute for the losing someone you love. I would suggest we solve the cause of most crime before someone at a local high school or college decides to enter the Biggest Shooting Massacre record books.

Here is a smart cost neutral way to start:

• Add a few questions to the pre-screening of inmates before their First Appearance when bond is addressed for the first time.
• Make “Obtain psychological/psychiatric evaluation and follow treatment as recommended” a standard bond condition in cases where it is appropriate. Diagnosis and treatment can also be made a condition of supervision in non-incarcerative sentencing cases.
• Eliminate the failure path of imposing cookie cutter talk therapy without adequate diagnosis in DUI, Domestic Violence, and drug cases. These programs skimp on the diagnostic portion and rely too much on talk therapy. Talk therapy has its place, but all the talk therapy in the world won’t heal a medical problem in someone’s brain any more than it will heal a broken arm. Diagnose accurately first, treat appropriately second.

Some people need to be locked up. Most don’t. Most people who are guilty of committing crimes need to be accurately diagnosed and appropriately treated. Diagnosis and treatment are the only way to break the cycle in our community without breaking the bank.

Unless you like setting your money on fire.

Attorney Stephen G. Cobb has been designated an expert in criminal trial law by the Florida Bar Association. He has practiced criminal law since 1990 and has four college degrees. His e-mail address is Stephen@cobblawfirm.com.