Why Cosby Accusers Did Not Cry Rape Sooner

25 November 2014
Published in

By Seema Iyer, Esq.

November 26, 2014

Why did it take many of those accusing Bill Cosby of sexual assault so long to come forward? This is a question I have heard from various people, even some in the media. It is clear to me that the people asking that question have no idea about what happens in the real world with these types of cases, as opposed to what they may see on "Law & Order."

The reality is that the great majority of sexual assault victims do not go to the police right away. Why? Well, many victims feel like they won’t be believed. They think ‘people will believe him over me.’ In fact, as has been proven, they often feel powerless unless standing alongside other victims facing the same offender. And what if the person who violated you was “America’s Dad”? Forget it. You would never tell.

So when Bill Cosby’s attorney, Marty Singer, said last week that “it is completely illogical that so many people would have said nothing, done nothing, and made no reports to law enforcement….” Well, Marty needs a swift kick in the head. If anyone knows that sexual assault victims are more likely not to report, it’s us. Especially when the assailant is not a stranger.

According to RAINN (Rape, Abuse and Incest National Network), two-thirds of sexual assaults are committed by someone known to the victim which makes sense considering 60% are not reported to the police.

Not only is lack of reporting a consideration, but also delayed reporting which seems to be a part of the national conversation with respect to Mr. Cosby. When the victim and the assailant are known to each other, the victim rarely makes a timely complaint. The current law makes allowances for that.  

“Outcry testimony,” an exception to the hearsay rule, not only permits a victim to testify at trial as to when she disclosed, but the person to whom she disclosed would testify. Additionally, a psychologist is permitted to testify to explain to the jury that the failure to file timely charges is symptomatic of Rape Trauma Syndrome (a form of Post-Traumatic Stress Disorder). The ‘outcry’ law has certainly evolved from its medieval origins when “a virgin has been so deflowered and overpowered….while the act is fresh she ought to repair with hue and cry to the neighboring villages and there display to honest men the injury done to her.” Yikes…….

Evidence of outcry, whether it took place five days or 15 years ago, is compelling to juries; it adds credence to a story void of accompaniment. Perhaps there is no physical evidence, no DNA, no witnesses. But when you ‘tell’ it has profound meaning.

And by the way, people don’t rape people in front of other people!!! OF COURSE there are never ever (rarely) eyewitnesses.

Thus far there are approximately 18 Cosby accusers with incidents occurring between 1965 and 2004. Let’s look at that timeline. Twelve of Cosby’s accusers claim the events took place between the 1960s and the early 1980s. State rape shield laws only began to take effect in the late 1970s to early 1980s.  The federal rape shield law, the Violence Against Women Act, wasn’t created until 1994. These laws protect the victim from limited cross-examination into their sexual history. Incredibly relevant because during the time periods in question, the women had a heightened fear of coming forward knowing their past would be dissected. Slut-shame, blame-game – you pick the term. It still, at times, applies today and it always applied back then.

Is Cosby off the hook? Many reports indicate the statute of limitations has passed on both criminal and civil actions. Not necessarily the case. Every state has a different civil statute of limitation. As for criminal charges it gets confusing. Most of the incidents occurred in New York and California. In New York, rape in the 1st degree, along with its heinous counterparts, do not carry a statute of limitations whereas lesser degrees of rape and other types of sexual assault have a five year limit. In California, most sex crimes have a 5 to 10 year limit to initiate proceedings.

Other assaults also allegedly took place in Pennsylvania and Nevada. Noteworthy is that New York, California and Pennsylvania each have DNA exceptions. Meaning, if DNA connects the crime to a perpetrator, but is not discovered until a later date, the statute of limitations clock starts to run only when the DNA identification is made.

There doesn’t seem to be any DNA evidence in any of the Cosby cases, and identification was never an issue, but it does demonstrate how far we have come in terms of prosecuting these crimes. Recall the day when prostitutes simply could not be classified as rape victims? (Approximately 75% of prostitutes are raped during prostitution.)

Bill Cosby came closest to arrest in 2005, however; the Montgomery County, Pennsylvania prosecutor failed to file charges. He believed Cosby committed a crime but did not think there was enough evidence. The prosecutor, Bruce Castor, had a problem with the victim’s delayed outcry because toxicology and DNA were foregone conclusions. Fine. But he still should have presented the case to a Grand Jury. Untimely outcry was largely accepted in 2005.

There was certainly probable cause to arrest. There was enough evidence to indict. And with an indictment the investigation would have undoubtedly uncovered corroboration. The victim was Andrea Costand who filed a civil lawsuit against Cosby that settled. In that suit, Costand armed herself with 13 other Cosby accusers who were prepared to testify against him. Doesn’t sound like there was “insufficient, admissible and reliable evidence upon which to base a conviction beyond a reasonable doubt” as you mentioned Mr. Castor. Doesn’t sound like “there’s just not enough [here] to prosecute.”

It sounds like the reason 97% of rapists never spend a day in jail. It sounds like failure.

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq

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Life Without Parole at 14 Years Old

12 November 2014
Published in Blog

By Seema Iyer, Esq.

November 12, 2014

When you represent someone young charged with a crime often times you have to give “the speech.”

Take a kid, usually between 13 and 19 who has never been charged with a serious crime.  You are in the courthouse holding pens overwhelmed by the patchouli-lysol scent that masks decades of filth, unwashed bodies and the overflowing toilet stench. You would think that is enough to knock some sense into your young client. You’d be surprised.

You give “the speech”:

"You are at a crossroads in your life, go left and you will end up in prison. No. Not maybe, this is not a possibility. I am not wrong. You will end up in prison and from there you will never recover, you will never be the same. If you go ‘right’ you will have to finish school and get a job. Yes working can suck. Life is hard. But you will never have to worry about being that 40 year-old guy behind you who’s been here 10 times in the last year."

I can’t imagine what kind of speech an attorney gives a 14 year-old facing life without parole. That was precisely addressed in the 2012 case of Miller v. Alabama. The US Supreme Court ruled that mandatory sentences of life without parole, for juveniles, violates the Eighth Amendment (cruel and unusual punishment). This ruling left many who were already sentenced to life without parole to ask, ‘well, what about me?’

One of those asking that question is Adolfo Davis who was sentenced to life without parole for a robbery he took part in when he was 14 years old that resulted in two deaths. Although Davis did not fire the weapon, when you sign up for a robbery (or burglary, or rape, or a laundry list of other felonies) and someone gets killed, it’s equally on you – in for a penny, in for a pound. (It’s called the “felony murder” rule.)

Davis, who is now 37, commited crimes when at 14 years of age simply to feed himself. No father, mother on drugs and a grandmother who was incapable of taking proper care of him.

Now, despite the cliché, he is a changed man, the model prisoner, and even an author.

Davis’ question is one of retroactivity that plagues lawyers every day. Truly. My officemate just brought this up three days ago. You see, every time a law is changed in our clients’ favor, we want to run out and get all them resentenced under it.

So when my officemate asked whether I thought a certain case applied retroactively my answer was instinctual – “not if it doesn’t say so.” Miller v. Alabama didn’t say so. Which leaves Mr. Davis’ question the one I’m sure 2,500 other prisoners serving similar sentences in this country want an answer to.

This is so infuriating! Why doesn’t the Supreme Court just tell us if a law should be applied retroactively or under what conditions it could be eligible for sentence?

Take for instance the U.S Sentencing Commission. In April, they approved a reduction in federal sentencing guidelines for certain non-violent drug offenders. Then in July the issue of retroactivity was addressed by amendment. Although it’s in the Judge’s discretion to retroactively resentence, 46,000 prisoners now have a chance at a reduced prison stay.

Whether the law of Miller v. Alabama should be applied retroactively is the issue in Illinois v. Davis, a pending petition in the Supreme Court. In Miller, Justice Kagan wrote for the majority essentially saying that with mandatory sentences discretion is removed from the equation: “ life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot extricate himself—no matter how brutal or dysfunctional.”

In resentencing non-violent drug offenders the Judge will weigh various factors, then make the ultimate decision. Miller gives the Judge the ability to do the same with respect to juvenile offenders. The entire analysis of Miller focuses on the judge examining every facet of the juvenile’s life and of the crime itself. It flows from such language that retroactivity was the intention of the decision.

Enough of the ‘does it or doesn’t it’ ‘will they or won’t they’. Here’s what needs to happen: the US Supreme Court should rule that Miller applies retroactively AND that the Court is ordered to always include in their rulings whether a rule applies retroactively. What? The Supreme Court can order themselves around.

It is so rare in this business to be presented with someone who has the capacity to change. A person who has yet to fully develop can be shaped. I don’t really like young people in general but I love young clients – those are the ones you have a shot at changing – those are the lives that can be saved. I hope the US Supreme Court takes a second look at the 2,500 lives that were ignored at first glance.

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq

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India's Solution for Gay Sex? Straight Marriage

04 November 2014
Published in Blog

By Seema Iyer, Esq.

November 4, 2014

On November 1, 1968 a young Indian couple, chaperoned by their parents, first met over tea. Two days later they were married.

Those crazy kids are my parents and that, my friends, is what we call arranged marriage. Sure the concept has evolved, now it’s almost a match.com for people of the same caste, class, religion and of course from the same “village” or “native place” (Think ‘hood’ or ‘block’).  And like online dating, many arrangements are made on the internet. The fundamental principle behind this type of marriage is what underlies its continued practice – procreate with your kind. Custom reigns supreme in India. Don’t mess with it.

A case grabbing international headlines has put a spotlight on India’s intolerance towards breaking with tradition. A 32-year old software engineer has been arrested for cheating on his wife with a man under an 1861 (no, that’s not a typo) law that basically criminalizes gay sex.

Section 377 of the Indian Penal Code states in part that anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished” and faces life in prison. While its intent was to prevent homosexuality the law by definition extends to certain heterosexual acts – though it is unlikely such prosecution is enforced.

The “Bangalore Techie” as he’s being called was only married a year before his new bride caught him on camera with a man in their home. For the first six months of marriage they lived apart due to work. After they started living together he would sleep in a separate room. She tried talking to her in-laws, who, in true Indian fashion, blamed her for being difficult. She encouraged him to seek medical attention, which he did not. After hearing from neighbors that male visitors would frequent the home in her absence, together with her own observations of her husband’s behavior, the wife set up a hidden camera.

The wife seems fiercely determined to see her husband prosecuted under this archaic law which in 2009 was struck down by the New Delhi High Court, only to be reinstated by The Supreme Court of India in December 2013.

I spoke with retired Justice PK Balasubramanyan who sat on the Supreme Court of India from 2004-2007 about this case. He explained, “prosecutions are highly rare.” Justice Balasubramanyan added that in his fifty year legal career not even one Section 377 case came across his desk. He noted that while the law appeared to be “discriminatory,” the Supreme Court overturned the Delhi High Court’s decision because there was inadequate basis to rule the law unconstitutional.

Danish Sheikh, Alternative Law Forum attorney, wrote in the Yale Human Rights and Development Journal, that a major theme during the Supreme Court arguments was the interpretation of Section 377, that it does not “make explicit reference to a particular act or sexual identity.” Perhaps that is how the Supreme Court justifies their reasoning. That – is what they call ‘equal protection under the law’ I suppose.

The young bride is even including her husband’s parents in her complaint alleging they knew he was gay yet still orchestrated the marriage. It appears though she is actually aligning with his parents, if they in fact were aware, in penalizing his sexuality. Of course, he should not have married her, but most of us cannot begin to comprehend living in a place that would easier banish you then support your personal choices.  

In a 2012 piece for the Huffington Post “Gay Indian Men Speak Out on Forced Marriages” Betwa Sharma reports that “[T]housands of gay men in India are leading a double life.” And while Section 377 was still decriminalized at that point it was a mere “technicality” in light of “family pressure” where parents “force marriage at the cost of children’s happiness, and sometimes their lives.”

Sharma goes on to explain that wives cannot leave “due to parental and societal pressures”. Then perhaps we should be applauding the Bangalore Techie’s bride for wanting to see her husband spend the rest of his life in prison.

She could have shown strength and left him. She could have shown compassion and support him. Or she could have said nothing; just remain in a loveless, sexless, lifeless marriage. She chose revenge.

Does the Bangalore Techie’s bride think she is the first casualty of arranged marriage??? As a product of one and as someone who was surrounded by them I had an up-close view to A LOT of unhappy heterosexual people. Talk about “against the order of nature”.

I don’t have to give you stats on how many arranged marriages end in divorce because most do not. In India we are taught ‘til misery do you part”. Forget gay or straight. Forget Indian, American or Chinese. It is simply about being pushed into a life that you did not choose. It is about not having the courage or support to redeem your existence. It is about perpetuating a cycle of gloom.

So, what do you do? Maybe you wait thirty years. Maybe you wait until you have some independence. Maybe you wait until you have a good job. And maybe the wait for a joyous life was worth it. My mother certainly thinks so.

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq

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Monica vs. Malala

23 October 2014
Published in Blog

By Seema Iyer, Esq.

October 23, 2014

This is not another opinion piece on Monica Lewinsky. (Well, if you want to get technical about it, it is, but read on and you will see what I mean.)  But her reemergence into the spotlight did strike me with a stark revelation.  I am surrounded, day in and day out, by whiny, ‘it’s everybody’s fault but mine’ complainers – and I just can’t take it anymore.

Sure most of my days are spent in the courthouse where perhaps you would expect criminals to play the blame game.  But a 40 year-old highly educated affluent white woman?  Lewinsky was the intern who had an affair with President Clinton almost 20 years ago.  And she has let it sculpt her into the “whoa is me, I can’t get a job, my life sucks,” pathetic-excuse-for-my-gender she has blossomed into.

When some of my clients say they were forced into criminal life because of poverty and drug-addicted or incarcerated parents, well that just plain makes sense.  But surprisingly all of my clients do not take that road.  Some drug dealers admit they enjoy the lifestyle that ridiculous amounts of money bring to a person who never even finished high school.  Studying is hard, working is hard.  Life is hard.  Why turn down daily stacks of tax-free cash?  What…..jail?  Simply an occupational hazard for many. 

My mentally incapacitated clients are the only ones who get a pass as far as I am concerned; those who literally (I hate that word but it fits) do not know what they are doing.  They don’t have the support system, access to treatment or frankly the knowledge that they are so gravely ill.  And when you are poor and you are sick it becomes easy to fall into criminal behavior.  These people are the blameless and the saddest. 

The others – the majority – refuse to take responsibility for their actions.  Maybe I shouldn’t be the one complaining now.  After all I wouldn’t have a job if they did, right?  But I grow tired of the endless excuses: “the drugs made me do it” (seven times???); “that’s not me in the video” (but you are sitting here in the exact same lime-green dress); “I am bi-polar” (ya, so is everyone else in New York City)…..it never ends.  And when they have to go to jail it is everyone else’s fault but theirs. 

Monica Lewinsky’s speech at a Forbes magazine event this week was more like a victim impact statement I hear ACTUAL victims make at sentencing hearings.  She distances her now self from her then 22-year-old-self as if to imply she had no understanding that she chose to enter into an affair with a married man - her boss - the leader of the free world.  I do not judge the morality of that choice, but make no mistake, that was her choice.  She was an adult, she was smart, she was educated and she certainly should have imagined the repercussions.

I dismiss her description of being “a completely private figure” outright.  If you engage in intimate acts with a public figure in places where many people have access (the Oval Office) you are by definition NOT private.  I reject her characterization of being a victim of “the shame game.”  Hey doll – you signed up to play; if you are ashamed that is on YOU.  So you had an affair with the President – so what?  Own it.  Walk away from it.  Use it. Whatever.  But don’t you dare say it prevented you from working.  Tell that to the 18.6 million people in this country who are looking for jobs.

What audacity to refer to herself as a survivor.  There was no life-threatening illness or injury, there was simply stupidity.  We don’t need Ms. Lewinsky to be the leader of the cyber bullying cause or any other when we have true leaders emerging from terrorism, fear and near death.  Who needs Monica when we have Malala?!  

For courage look to the 11 year-old who defies the Taliban.  For motivation, the 15 year-old who refused to allow getting shot in the head halt her activism.  For aspiration, the 17 year-old with a Nobel Peace Prize. All Malala Yousafzai.

Taking responsibility for your decisions can make you look foolish but it can also make you brave.  Fear is what keeps you locked behind closed doors hoping people will forget.  Open the door, let free will in, and tell fear “don’t let the door hit you on the way out.”

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq


What happens when the Sperm Bank makes the WRONG Deposit?

17 October 2014
Published in Blog

By Seema Iyer, Esq.

October 17, 2014

Two lesbians and a black man walk into a sperm bank – sounds like the beginnings of a bad joke.  Unfortunately, it is the true reality for a couple in Ohio who sought to have a white baby by choosing a white male donor until the sperm bank made an irreparable error.

Jennifer Cramblett and Amanda Zinkon, a white couple, went to the Midwest Sperm Bank in the Chicago area and chose donor #380. They picked that donor because his coloring, blond-haired and blue-eyes, is similar to Zinkon.  The goal was obviously to have a baby that resembled them as much as possible.

As you probably figured out, the couple didn’t get donor #380. Instead, Cramblett was inseminated with sperm from donor #330, who was neither blonde hair nor blue eyed. In fact, the donor was actually a black male.  

The couple learned of the clinic’s mistake in the 5th month of the Cramblett’s pregnancy yet still decided to have the child, even if she would bear little resemblance to them physically.

So in 2012 the couple welcomed into the world baby Payton. A healthy baby girl that the couple says they love, “unconditionally.”  End of story, right?

Of course, not. It turns out while the couple was welcoming of Payton, not everyone in the 98 percent white community where they live shared those warm, fuzzy feelings.  (Apparently being a lesbian in the town is fine, as long as you’re a white one.)

Citing fear for the child’s future in an all-white school, the couple now want to move to a more diverse area.  And, as would be expected, the couple did what any red-blooded American would – they sued.

The couple’s lawsuit asks for $50,000 in damages that frankly seems quite reasonable for such a monumental blunder.  To be clear, donor #380 was substituted for donor #330 because a “3” and an “8” look alike when handwritten because Midwest Sperm Bank’s records are HANDWRITTEN.  There is no computer database to hold what is supremely private, personal information - just a bunch of papers probably mis-alphabetized in a file cabinet.

How can this be??? Don’t sperm banks have to abide by certain regulations?  Yes they do.  The U.S. Food and Drug Administration (FDA) started regulating reproductive tissue banks in 2005.  The FDA rules include protocols for screening and testing donors as well as record-keeping.  The FDA also audits sperm banks through site inspections to insure compliance.  And most major sperm banks are licensed and inspected by states.

Still, am I the only person who thinks this has got to have happened before?  Whether it’s a mix-up, mistake or what Jason Bateman did to Jennifer Aniston in The Switch. (If I can admit I’ve seen it 12 times, you can admit you’ve seen it once.) I am not all that surprised in what I originally thought was a more common method of conception.

There are no industry-wide statistics on the number of anonymous donors inseminated births per year - strange, no? The media often reports it as 30,000-40,000 annually, whereas the American Association of Tissue Banks states it to be only between 4,000-5,000 (based on 1.5 vials per insemination, a 10% pregnancy rate per cycle and a 20% spontaneous miscarriage rate.) 

Cramblett and Zinkon’s lawsuit foreshadows a stifling future if Payton is to be raised in their small “racially intolerant” town.  But should that be the couple’s only concern?  Doesn’t simply being a child that is a partial product of an anonymous donor have other long-term repercussions?

In 2010 the Institute For American Values published a study on young adults conceived through sperm donation.  “My Daddy’s Name is Donor” examines multiple facets of the donor child’s experience and whether a connection exists to how they were conceived.  The study found that the children “fare worse than their peers raised by biological parents on important outcomes such as depression, delinquency and substance abuse.” 

While 45% overall reported that it bothers them that money was exchanged for their conception, children born to heterosexual or lesbian couples seemed to “hurt” less than those born to single mothers.  Yet practically half (47%) of donor offspring are concerned that their mothers may have lied about “important matters” while growing up, compared to only 27% of the adopted and 18% with biological parents. 

Cramblett and Zinkon are worried about raising their biracial daughter in a rural homogeneous area which unquestionably is a valid concern.  But apparently that is only one of many issues when having a donor child.  The lawsuit has two causes of action; breach of warranty, which is basic contract law, and wrongful birth.  Ouch.  How is a grown-up Payton going to feel about that one?

This intersection of law, race, sexuality, medicine and parenting has prompted interesting debate and criticism but it isn’t just part of the news cycle; it is going to define a baby girl’s life.  If Midwest Sperm Bank wants to keep its best swimmers in stock, they will settle this case thereby allowing Cramblett and Zinkon to relocate.  And then maybe buy a computer so this type of error never occurs again. 

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq


How To Get Away With Playing a Defense Attorney: an Insider's look at How To Get Away With Murder

09 October 2014
Published in Blog

By Seema Iyer, Esq.

October 9, 2014

How To Get Away With Murder, the latest venture in Shonda Rhimes’ quest for network television domination, stars Viola Davis as Criminal Defense Attorney/Professor Annalise Keating.  As a real-life defense attorney and former prosecutor I am always curious to see how accurately the criminal justice system is portrayed in entertainment.  They usually get it wrong – and this show is no exception.

Now before everyone jumps all over me, let me begin by declaring I am a fan of all things Shonda.  I still adore Greys Anatomy (that’s right, where are the rest of you, huh???) I continue to mourn the end of Private Practice (why, oh why, God did You take Dr. Taye Diggs away, God – WHY??!) And I never miss a solitary second of Scandal.  So despite my inclination to reject another lawyer show….I live Law & Order folks, I don’t need it in my free time…I decided to take a gander for no other reason than Viola teaming up with Shonda is an epic meeting of mighty females. 

Five minutes into the pilot I was renaming the show, How To Get Away With Playing A Defense Attorney.  Definitely less OMG than WTF?! And by the second episode I compiled a list of why I reasonably doubt the premise of Shonda’s new gig.  Ladies and Gentleman – here are your Top 10:

1.  The Field Trip

In the first episode Annalise takes her entire law school class to interview her client accused of attempted murder……uhhhh…..WHAT?????  People – this would NEVER happen.  First off, the client would never agree to it; but putting that aside each student becomes a potential witness.  The attorney-client privilege does not attach because at that point none of the students were working there.  Each student could be called by the prosecution to testify (don’t say they would never find out because they always do) and those little notebooks they were eager beaver scribbling in would also have to be turned over to the prosecution.

2.  Where is Magnum PI? 

Criminal defense attorneys do not have 1st year law students collecting evidence.  They’re barely equipped to make coffee (or maybe that was just me?).  If any of those knuckleheads were to get injured/threatened/in trouble it’s the attorney who faces a malpractice suit, disciplinary action or worse, suspension from the Bar.  Further, if you don’t have an investigator and lose at trial, the attorney could face an ineffective counsel claim on appeal.  Luckily Connor bed the IT geek to get an email, Michaela impersonates an insurance rep breaking health privacy laws and Annalise wins the case. 

3.  Reality Check

Professor Keating uses her own, open, ACTIVE, PENDING cases to teach her criminal law class.  Through a power point the case photos, evidence and crime scene are displayed.  So. Much. Wrong.  It’s a violation of professional conduct, the code of ethics, undoubtedly attorney-client privilege and just plain dumb.  Equally perplexing is that Annalise asks the students for help on these cases; a seasoned, skilled 40-something-year-old trial attorney is asking for Romper Room’s assistance.  Really.  That would happen.

4.  Fashion Police

Who doesn’t love a tight, sleeveless dress on the body of Viola Davis?  Any Judge in America that’s who!  Relax feministas.  The unwritten rules are for both male and female lawyers in the courtroom – sleeves are just one of them.  There is no way any Judge would let a lawyer strut around inside the courtroom like that, especially on trial.  Point of fact, I almost had a Judge refuse to allow me to do an arraignment because I had a sweater on instead of a suit jacket (arraignments is a smelly, dirty, lively circus where I don’t bring my best duds).  A male attorney friend once went into night court (yes, that’s a real thing) with a jacket sans tie; the Judge then ordered him to put on a tie if he wanted his case called.  Luckily Canal Street, with an impressive $10 selection of menswear, is around the corner.

5.  “You’re only as good as the people you hire” – Ray Kroc

By now you’ve become weary of my repetitive ‘this would never happen.’  So I will pause it.  Let’s just examine the facts: after about a month of being in law school Annalise hires 5 students from her introductory criminal law class.  Five children who at that point in their studies don’t know the difference between a brief and a bong hit.  She’s known them for what twenty minutes?  Yet she entrusts them with her home, her office and her career.  Jeez, I went through a more rigorous application process to work at Dairy Queen.

6.  Sleeping with the Enemy

Annalise has a husband and a boyfriend – remember that no so subtle introduction to Detective Nate?  The defense attorney sleeping with the cop isn’t the most likely scenario because after being a defense attorney for a while you start drinking the Kool Aid.  You start believing the cops really did frame your client, beat a confession out of him and hid evidence.  Defense attorneys don’t often mingle with the fuzz.  On the other hand, as a prosecutor it’s practically a rite of passage to sleep with a cop (so I’ve heard).  And although the prosecutor-defense attorney affair is cliché it is completely accurate (hey, stop pointing fingers!) and rampant in the courthouse.  Well, maybe not in the courthouse.  Actually……

7.  CSI

Apparently they were on vacation during the second episode.  The crime scene is a bedroom where the defendant, played by Steven Weber, allegedly killed his wife.  The bedroom is left ‘as is’ replete with bloody linens, walls and carpets.  This is not just reality ridiculous – anyone who watches anything knows that evidence WITH BLOOD ON IT is collected!  And remember when one of her legal genius law students suggests retesting for DNA.  After you’ve rolled around in the bed?  Great idea, kiddo.

8.  The Bail Out

Why are all the murderers out???  In the first episode the crime was attempted murder, the defendant appeared wealthy and it was probably her first arrest so perhaps she was able to pay the high bail.  But Steven Weber’s character in the second episode?  Very little chance bail would have been set; he would have been remanded to stay in jail while awaiting trial as is often the case with murder.  The Court would have looked at his ability to flee the country, that the murder occurred in his home and that he was accused of murdering his first wife.  At least make the guy where an ankle bracelet! 

9.  Rap It Up

I am almost done with the #HTGAWM bashing, but this is a big one.  In the second episode Annalise finds out, in the middle of trial, that Weber’s character was accused (and actually did it) of killing his first wife in Switzerland.  In the middle of trial.  Why didn’t she know this before?  Either her client didn’t tell her or she didn’t find out - because she doesn’t have an investigator!  Result is that Annalise Keating looks like a bad defense attorney.  And the prosecutor is obligated to have turned  the rap sheet over wayyyyy before trial.  Pulling that kind of stunt mid-trial has mistrial written all over it.

10.  Innocent until proven Guilty

Professor Keating opened last week’s show with: "The question I’m asked most often as a defense attorney is whether I can tell if my clients are innocent or guilty? And my answer is always the same: I don’t care."  Now that is real!  Truly we don’t care.  It has nothing to do with the job and as the Prof. correctly explains it is because our clients, like everyone, “lie”.

So there you have it.  My real-life criminal defense attorney perspective of How To Get Away With Murder.  Will I continue to watch?  Of course.  Even though it may be off base it’s Shonda.  And Viola.  I just wish someone would create an accurate portrayal of the criminal justice system and realize, - the truth is way more fun than fiction.

[Sidebar – for an authentic depiction of a criminal defense attorney’s life see The Lincoln Lawyer with Matthew McConaughey]

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq

Hey Doc, Can We Talk? Examining the Death of Joan Rivers

16 September 2014
Published in Blog

By Seema Iyer, Esq.

September 16, 2014

Joan Rivers’ death at 81 seemed sad yet predictable due to her age.  The story surrounding her death was oddly secreted, but now piece by piece is being slowly revealed.  And it appears the doctors involved may have made some serious mistakes.

By now we all know Ms. Rivers went to the Yorkville Endoscopy Clinic complaining of a sore throat and hoarse voice.  The renowned gastroenterologist, Dr. Leonard Cohen, was tasked with performing an endoscopy to explore her digestive system suspecting acid reflux.  During the procedure where Ms. Rivers was under full sedation (by propofol which ultimately killed Michael Jackson) Dr. Cohen called in Ms. Rivers’ Ear, Nose and Throat doctor to examine Ms. Rivers’ vocal cords.  This ENT doctor accompanied Ms. Rivers to the clinic appearing as a member of her ‘entourage’ – mistaken for her makeup artist.

Original claims that a vocal cord biopsy caused Ms. Rivers’ death have since been denied by the clinic, which makes the cause of her death even more confounding.  Privacy laws are shielding questions from the public however, both the New York City Medical Examiner and the NY State Health Department are investigating the clinic, the ENT’s name has still not been released and Dr. Cohen, also the clinic’s medical director, has…….‘left the building’ – or, more likely, asked to leave the building.

In 2009 a Scientific American investigation found that over 200,000 people die each year from preventable medical mistakes and infections – more than twice the amount from just a decade ago.  According to Diederich Healthcare in 2012, 31% of all medical malpractice claims were death-related. 

What went wrong first in Ms. Rivers’ case?  With her advanced age, history of heart arrhythmia and bulimia, having an endoscopy in an outpatient clinic rather than a hospital seems like a poor choice.  But she consented, essentially waiving that portion of any claim.

Dr. Cohen was indeed qualified to perform the endoscopy.  During the procedure Ms. Rivers was sedated with propofol.  The clinic has stated Ms. Rivers was not under general anesthesia but rather light to moderate sedation.  Considering propofol is more commonly used for deep sedation and general anesthesia, the use of it as the clinic purports heightens suspicion.  If Ms. Rivers stopped breathing because of complications from the anesthesia it could be because there is such a slim margin of error in the administration of propofol – a thin line between sedation and respiratory arrest.

Still the risks of anesthesia are quite low.  The American Society of Anesthesiologists have found that over the past 25 years anesthesia-related deaths have decreased from two deaths per 10,000 to one death per 200,000-300,000 anesthetics administered.

A specific possibility related to both reflux and anesthesia, Ms. Rivers may have experienced laryngospasm, shutting of the vocal cords, which could have been managed with the drug succinylcholine.   That drug was not on hand.  Still, the clinic maintains it has the lifesaving equipment tantamount to a hospital emergency room.

It is still unclear why the ENT came into the room to examine Ms. Rivers - the ENT who did not have authorization to practice medicine at the clinic.  Even if Ms. Rivers was in moderate sedation she wouldn’t have had the volition or authority to request her doctor, the ENT, to enter the room.  And by examining Ms. Rivers did the ENT also administer treatment?  Leading to the ultimate question – did the ENT contribute to Ms. Rivers’ death?

Doctors, hospitals, all medical providers in fact, have a legal obligation known as a duty of care – to provide a standard of reasonable care while performing any action that has potential to cause injury.  Medical providers must adhere to the accepted standard of the medical community in their field. 

There is no doubt that every doctor in Ms. Rivers’ case – from Dr. Cohen to the ENT, the anesthesiologists purportedly present at the clinic all the way to the doctors at Mt. Sinai hospital where she died – owed Ms. Rivers that duty of care.  The next inquiry is whether that duty of care was breached.

From the limited information we have now, Dr. Cohen and the clinic appear to have been deficient in the endoscopy procedure.  That could specifically include the anesthesiologist who administered the propofol.  By allowing the ENT to examine Ms. Rivers without clearance, the ENT, Dr. Cohen and the clinic, as an entity, breached their respective duties.

Still breach means nothing without causation.  The ultimate inquiry is whether the breach was the cause of the injury. 

If the cause of death was not from propofol – the anesthesiologist did not breach any duty.  And even if the ENT’s examination did not cause Ms. Rivers’ death, there was still a breach.  However, breach without causation equals no recourse. 

So maybe fault lies in the intubation, an emergency procedure to restore breathing.  Extremely difficult to perform but for those few with expertise, perhaps that is what caused Ms. Rivers’ death.  Might Ms. Rivers have had a natural adverse reaction?  Or was an error during the endoscopy compounded with further mistakes during the attempt at saving her life.  Bottom line – did medical negligence harm Joan Rivers?

That is what will surely be (or should be) litigated in the months to come.  At eight-one years old, Ms. Rivers still juggled a demanding work schedule.  In a wrongful death lawsuit, family members can recover both economic and non-economic damages.  Ms. Rivers passed in New York where the medical malpractice payout is the largest in the land; in 2012 it was $763,088,250 compared with Pennsylvania far behind at second with $316,167,500.

Yes, it’s morbid to talk dollars right now when the country’s still mourning the loss of a comedic legend.  Yet it’s never too early to investigate, analyze and question avoidable injury.  Our doctors are held to impossible standards at times but ones they took an oath to uphold.  Simply put, something went wrong in that room while treating Joan Rivers, something that made death come too early – even at 81.

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq

Everyday Evil: The Sentencing of Ariel Castro

06 August 2013
Published in Blog

By Seema Iyer, Esq.

August 6, 2013 

For most people, hearing the words Ariel Castro uttered at his sentencing evoked horror, disbelief and confusion – for me, it was just another day at the office. 

The pure evil that is Castro exists everywhere but only those of us in the criminal justice and mental health fields get the up close and personal privilege of witnessing it on a daily basis.  When the sentencing began with a brief apology by Castro I was startled that he was going off-script (I am referring to standard psycho script).  But after the prosecution presented their case, with Ms. Knight displaying indomitable grace, Castro got back to his duplicitous task at hand.  Intermingling the gratuitous “sorry” with descriptions of a harmonious utopia that was his home life, was sickening even for my anesthetized soul. 

Castro included in his revolting diatribe the requisites – “it was consensual”; “I am not a monster” and the always popular “I am addicted to porn”.  What folks could not understand is why the Judge didn’t just shut him up.  He couldn’t.  Unfortunately, the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and the Ohio Rules of Criminal Procedure allowed Castro to spew his venom ad nauseam. 

When he threw in, “I am not a violent person…… I simply kept them there without them being able to leave” it was akin to a twisted comedian’s punchline.  And then overwhelming fear hit me that this plea may not go through.  According to Ohio’s Rules of Criminal Procedure a “plea of guilty is a complete admission of the defendant's guilt.”  Consider that a hard and fast rule in all federal and state cases.  Castro was verbally denying many elements of the crimes.  For instance, consent is a direct contradiction to force, an element of the rape counts he pled guilty to.  And claiming not to be violent was not only a departure from reality, but legally inconsistent with a plea of guilty to the counts of aggravated murder and assault. 

The Judge could have refused to take the plea; however, because there was an executed plea agreement, OVERWHELMING evidence (much of it was highlighted at the sentencing) and a waiver of right to appeal, the Judge accepted the plea and went forward with sentencing. Forgive my digression but noteworthy is that a waiver of appeal does not waive all constitutional and statutory rights.  Do not fret – Castro has NO chance of appeal.  The record was clear; he entered a ‘knowing, intelligent, voluntary’ guilty plea as required by the Fifth and Sixth Amendments to the Constitution.

Is that incompatible with Castro, as some experts claim, being a psychopath?  According to Dr. Gregory Saathoff, a forensic psychiatrist who testified at the sentencing, Castro had no "mental illness whatsoever".  And here is the divide.  Those suffering from mental illness with the inability to appreciate the criminality of their conduct – those who cannot tell ‘right from wrong’ - are excused under the law with the Insanity Defense.  Then there are others who suffer from mental or personality disorders who commit crimes, understand exactly what they are doing and do so in a way to avoid detection.  They are among us in great numbers.  Specifically, 9.1% (1 in 11) of the general population meet the criteria for a personality disorder according to a study published in Biological Psychiatry (2007).

So there are psychopaths everywhere???  Not exactly.  According to Dr. Jessica Pearson, a Clinical Psychologist specializing in Forensics, “although the psychopath can share the behavioral characteristics of the antisocial personality (i.e. violating social norms, being impulsive and deceitful), where the psychopath differs is in his interpersonal and emotional experience.  They lack empathy for others and often manipulate, use and deceive others for their own personal gain. A psychopath may feel no remorse or guilt for the most heinous crimes, often blaming his victim or providing some distorted self-serving justification for his behavior.”  Sound familiar? 

The closest counterpart to psychopathy is antisocial personality disorder.  Numerous overlapping traits between these conditions is why we must be concerned with who are neighbors, co-workers and friends are.  A recent 2013 study by neuroscientists at the University of Chicago and University of New Mexico found that psychopaths make up only 1% of the general population but 20 - 30 % of the U.S. prison population.  Similarly a study published in the Annals of Clinical Psychiatry in 2010 reported that antisocial personality disorder was present in 35.3% of the prison.

Here is the take-away from the reluctant 15 minutes of fame that television gave Mr. Castro.  We can no longer be naive in believing that evil is an aberration.  We do not need to be fearful, just careful.  And aware.  A little insight into what is going on beyond your closed doors may just prevent the next Castro into becoming the next monster.

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Seema Iyer is an attorney in New York City with her own practice that specializes in Criminal Defense, Civil Rights and Constitutional Law. Seema is also a Legal Contributor at Arise News and frequent guest on MSNBC. Follow her on Twitter @seemaiyeresq


Jason Patric Gives Sperm Its Day in Court

23 July 2013
Published in Blog

By Seema Iyer, Esq.

July 23, 2013

Hollywood star Jason Patric is leading the fight to give sperm donors’ increased parental rights. Perhaps, if he just did it the old-fashioned way he wouldn’t have emerged as the trailblazer of sperm; nor would he be claiming to be the parent he already is in life, but not in law.

Jason Patric is in a heated custody battle with ex-girlfriend Danielle Schreiber over their son Gus, 3, who was technically conceived via sperm donation. In February 2013 Schreiber won the parentage case in Los Angeles Family Court; Patric has appealed. Here’s the "He said, She said": Schreiber asserts the couple agreed that she would raise the child by herself, that Patric did not want to be a father and further, that his biological fatherhood was to be kept secret at Patric's behest. She adds that Patric did not see Gus during much of the year after he was born.

Patric gives a differing account.  He says the couple decided to have a child but after the relationship ended, Schreiber took the child away. That he didn’t merely donate sperm; the couple had pursued fertility treatments together and tried for years to have a child.

Patric is now hoping a California state bill he inspired will pass. This bill, SB 115, would permit any sperm donor to sue for parentage but only if he “receives the child into his home AND openly holds out the child as his natural child”. That could give the sperm donor parentage which in turn satisfies the precursor to sue for custody.  California, home to the largest sperm bank in the country, is in an uproar at the possibility of thousands of donors now trying to be Daddy Dearest. Hold on gentleman......not so fast.

The "receiving" and "holding out" requirements dictate that the mother facilitate the donor into the child's life. So that scenario is far less likely to occur in the case of the anonymous donor. In the case of the known donor the mother still has a degree of control to allow the donor into the child's life. Also noteworthy is the legal standard Courts look to when deciding a variety of issues relating to children - what is "in the best interests of the child” - that is the threshold. Aside from the "receiving" and "holding out" elements that could possibly enter the family law vernacular in California, the 'best interests of the child' is the prevailing rule in every state.

What remains astounding is the LA Court ruling that Patric did not have the right to sue for custody because he was not a parent under the law, he was viewed as merely a sperm donor.  Despite the fact that Schreiber and Patric dated an aggregate of 10 years, that Patric has acted in a manner commensurate to being a parent, or that Baby Gus calls Patric "Dada", Patric is not Gus' father.  Is that in the best interests of this child?

Historically Courts favor recognizing both a mother and a father if both parents are healthy, loving and productive people.  Courts also look to 'consistency'.  For Patric that first year of Gus' life, where he was allegedly absent due to his own volition, gives pause that he will remain a willing, participative fixture in the child's life.  However, if Patric and Schreiber conceived Gus au naturale, Schreiber's claim that Patric was akin to an anonymous donor would be far less credible putting her other accusations into question as well.

Through a multitude of complex issues a reluctant leader has arisen.  And this is a good thing folks.  In California there is finally a chance for biological and non-biological fathers to have equality in access to parental rights.  SB 115 sailed through the Senate in April but its harsh criticism has sparked concern it will be passed by the Assembly where a hearing is set for August.  So when all eyes are on Sacramento later this summer for a potential new state law with national implications, let’s not forget that little boy in the back.  His name is Gus and he is still waiting to hear who is daddy is.

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Seema Iyer is an attorney in New York City with her own practice that specializes in Criminal Defense, Civil Rights and Constitutional Law. Seema is also a Legal Contributor at Arise News and frequent guest on MSNBC. Follow her on Twitter @seemaiyeresq


 

 

Monday Morning Quarterbacking the Supreme Court

01 July 2013
Published in Blog

 By Seema Iyer, Esq.

July 1, 2013

DOMA lost. Love won. Holy matrimony – it’s been one hell of a Supreme Court post-season!

The last month has certainly felt like a January. Every week with playoff games (decision days) that left us with some crushing defeats (Shelby v. Holder), hollow victories (Fisher v. University of TX), an out of pocket play that rewrote history (Hollingsworth v. Perry) and the mother of all games between the undefeated champions, the United States of America, and the underdogs, Windsor – a Superbowl for the books.

In full post-rainbow parade hangover haze, no analogy here folks; there were actually several parades yesterday (think Edith Windsor as the Gay Pride version of Peyton Manning)….. here are your SCOTUS Superbowl 2013 highlights:

A struggling offense led the Supremes to punt Fisher v. University of TX back to the 5th Circuit Court which will likely punt down to the lower district Court. The reasoning, in this affirmative action case, was that the lower court didn’t apply the correct formula, the strict scrutiny test. The test is whether the University demonstrated that there was no other way to achieve diversity unless they use race as a factor in admissions.

So why the punt? Because the lower court didn’t find enough facts to support a decision either way. The good news is that SCOTUS did not overturn prior cases (Grutter v. Bollinger, Regents of the University of California v. Bakke) that upheld affirmative action in college admissions. Bottom line, diversity in education remains a compelling state interest and affirmative action lives to fight another day.

Next up, a rivalry as storied as the Giants and the Cowboys. Shelby v. Holder reconsidered the constitutionality of the Voting Rights Act of 1965, specifically Section 5 and pit Southern conservatives against the NAACP. Section 5 gives the feds the right to “preclear” any proposed changes to voting procedure, practice or location. The Act only applies to certain states and municipalities, mostly, but not exclusively, in the South. Its purpose was to get rid of discrimination at the polls. Think back to Jim Crow South when qualified black voters were turned away for not passing literacy tests.

So what did the Supremes do? In the most unpredicted move since Tim Tebow signed with the Jets, SCOTUS doesn’t rule on Section 5 at all. Instead they rule that Section 4, the formula that decides which jurisdictions are subject to Section 5, is unconstitutional. When Section 4 falls it knocks down Section 5; our safeguard that protects voting equality has been tackled.

By the time final decision day of the term rolls around my tailgating ritual is tight. Beginning with a few dozen cups of coffee, I pre-game with SCOTUSblog.com. Amy Howe heads the show giving color commentary better than Terry Bradshaw and Jimmy Johnson combined. Rapid fire analysis and projections on which way what Justice will go from inside the high Court. Kickoff is 10am; the offensive line, CJ Roberts, Alito, Thomas, Scalia on the right and the defensive line, Kagan, Sotomayor, Breyer, Ginsburg on the left of the line of scrimmage…….we wait…….hoping for one of the Supremes to go offsides. The one to watch is Kennedy, a la Michael Vick, will he pass right or run the ball left?

At 10:02am the decision in U.S. v. Windsor is out. The 1996 Defense of Marriage Act (DOMA) has been ruled unconstitutional. A touchdown right out of the gate! Same-sex marriages will be entitled to the same federal benefits that heterosexual marriages have; however, this only pertains to states where same-sex marriage is legal.  

If a same-sex couple gets married in a state where the union is legal, then move to a state where it is not, what happens to their benefits? That question remains unresolved and the Supreme Court did not rule on whether there is a federal constitutional right to gay marriage. Clearly a reminder that we are still in the first quarter of the game.

The other big play of the day was Hollingsworth v. Perry which considered Proposition 8, an initiative that would withdraw California’s right to gay marriage. The Court, in fascinating only-for-us-law-geeks language, found that the party who brought the case did so improperly. So, the ruling from the lower court stands. No Prop 8. Fire up the Cher playlist and let the wedding bells resume.

By 11:35AM the game is over. Time to pack up the foam finger and wash off the face-paint. An historic triumph brings hope for next season. Will the champions hold onto their title? Expect more bench-gripping action in the fall…….on the field and in the Court.

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Seema Iyer is an attorney in New York City with her own practice that specializes in Criminal Defense, Civil Rights and Constitutional Law. Seema is also a Legal Contributor at Arise News and frequent guest on MSNBC. Follow her on Twitter @seemaiyeresq


 

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