Seema Iyer

Seema Iyer

My Colorado Contact High

08 December 2014 Published in Blog

By Seema Iyer, Esq.

December 8, 2014

From the minute I stepped off the plane at Denver International I looked at every single person like they were stoned. I don’t know what I was expecting, for everyone to be high as kites? Duh…ya.

Even the old guy with the cowboy hat in the wheelchair got my sideways glance (please, you know that dude was).

As we near Colorado’s one-year anniversary of legalizing the recreational use of marijuana I decided to take a closer look at this new frontier. Denver has become the undisputed pot capital of the world. With more than 300 dispensaries in the city it is no wonder I smelled it EVERYWHERE.

Or perhaps that was the hypochondriac in me. Staying in downtown Denver there were no visible hints, not surprising since public smoking is forbidden. Downtown Denver is clean and beautiful with its modern skyscrapers, shops and restaurants amongst the historic landmarks and government buildings. There was hide nor hare of a single solitary bud.

That’s because all the dispensaries, green houses and production facilities are on the “other” side of the tracks. Just about two miles from my hotel downtown the scene started to shift from thriving to distressed. Run-down one story homes block after block, fast-food chains, dumpy strip malls were a quick and startling contrast. Every 50 feet a cannabis dispensary appeared, like a Starbucks on every corner in Manhattan. This time I really did smell it.

Since infused edibles make up 45% of the legal marijuana market, my first stop was an edible bakery. And because I just like food. I pictured the typical bakery with tables in the front, huge glass display cases filled with yumminess and sunshine streaming through the windows. At least one window would’ve been nice.

The bakery I visited, not unlike others of this kind, was housed in a decrepit warehouse on a filthy plot of land. Not very appetizing. I had to buzz an unmarked heavy steel door to gain entrance, then immediately sign in for security purposes. There was no café inside (on-site consumption is illegal for all vendors), but the facility contains a closed greenhouse with artificial lighting where the cannabis is grown, as well as an office, kitchen and a packaging area.

The darkness, both figuratively and literally, of the bakery bothered me. Although the entire staff, could not have been nicer (well I’d probably be a much nicer person if I was stoned all the time too) I felt the entire business was an underground operation. Despite the intense regulation of this absolutely legitimate business, it is more fringe than norm.

Take for instance that recreational pot vendors generally do not have bank accounts. That is because marijuana is illegal under federal law and the Federal Reserve supervises banking institutions therefore, all transactions have to be in cash. These are million dollar enterprises which presumably have THAT much cash lying around. The only people I know who have exorbitant amounts of cash are drug dealers, I am sorry to say. Perhaps that’s what adds to my ‘discomfort’ with the entire environment.

Think about this. Drug dealers are constantly concerned that they will be robbed simply because they have so much cash AND they have drugs. Isn’t that the same worry for these pot businesses? All of their payroll is in cash. Everyone in Colorado knows it’s an ALL CASH deal. So when an employee is walking to their car after work with a large amount of cash on payday, in a sketchy scary neighborhood, they are in danger. No question.

I visited a few dispensaries with some notable common characteristics:

  • ATM machines (obvie)
  • Separate counters for medical and recreational purchases
  • LOUD music (or maybe I’m just getting old)
  • Cannabis publications everywhere (who knew there were so many?)
  • Chairs & sofas conducive to socializing (there was a lot of lingering indeed)
  • Grungy customers

Let me explain that last one. Again, my THC fantasy included yuppie business types and desperate housewives popping into the pot shop for a fancy vape pen or some cherry chocolates. Wrong. Every customer looked shabby, somewhat stoned and – unhealthy. There was a sallowness to their skin accompanied by a lazy gait. Not sure what I was expecting when witnessing people buying drugs in the middle of the afternoon!

What was pervasive (besides the smell) was my questioning the cognitive state of everyone I encountered. True, most people aren’t as high-strung as I am, but I didn’t meet even one person with any urgency to do, well, anything.

The behavioral effects of marijuana seemed apparent. For example, an intern college student who was helping me get around seemed to forget things that occurred 20 minutes prior, where places that she just passed were located and spent way too much time socializing on the dispensary couch. I could also just chalk that up to being young.

Of course there were some folks who engage in recreational use during their ‘off’ hours. Similar to having a couple glasses of wine after a long day at work. Not everyone uses all the time. But many do. That is what surprised me the most. In mainstream society you would not be employed if you drank alcohol on the job. The three-martini lunch, once an open secret, no longer exists.

Maybe Colorado just isn’t for me. I don’t get the lifestyle, the allure or the people frankly. I felt depressed and sad being in that atmosphere. A gloomy haze clouded my perception the entire trip….uh oh – was I stoned?

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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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Why Cosby Accusers Did Not Cry Rape Sooner

25 November 2014 Published in Blog

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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