In two weeks, the last trial of an Occupy Wall Street activist will begin, when 25-year-old Cecily McMillan faces charges that she assaulted a police officer, Grantley Bovell, on March 17, 2012, during a 6-month anniversary demonstration at Zuccotti Park. In a decision issued yesterday, State Supreme Court Judge Ronald A. Zweibel decided that the information contained in Bovell’s internal disciplinary file isn’t relevant to the case and that the defense can’t see any part of it. But McMillan’s lawyer argues that this officer has assaulted and falsely arrested people before, and that the file can help them prove it.
McMillan’s lawyer and her supporters say Officer Bovell was the one who assaulted her, grabbing her by the breast from behind and dragging her backwards. When she threw up her arms in an instinctive defensive gesture, they say, she hit the officer’s temple. In response, Bovell and other officers beat her severely, causing her to suffer a series of seizures. (A few days later, a shaken-looking McMillan appeared on Democracy Now to describe the incident.) But the NYPD argues in their court filings that McMillan deliberately elbowed Bovell in the face while he was arresting someone else. McMillan was charged with assault on an officer, a felony that carries a maximum of seven years in prison.
McMillan’s lawyer, former National Lawyer’s Guild president Martin Stolar, has been pressing for access to Bovell’s internal personnel file from the NYPD, arguing that it contains crucial evidence about previous allegations against Bovell.
In court filings, Stolar says that Bovell was part of a 2010 incident in which a young black man named Reginald Wakefield was run down by an unmarked police car while riding his dirt bike. Bovell was a passenger in the car, and has been named as a plaintiff in a lawsuit against the city, the NYPD and several additional officers. (You can see the complaint here; court records show the case was closed in February of this year. Wakefield’s attorney appears to have moved for a dismissal, and the matter was apparently settled out of court.)
Stolar also alleges that Bovell was part of several other incidents that didn’t make it into court, including a fight in 2009 in a bodega, in which he supposedly arrested a man and then kicked him while he was on the ground, and another incident the same day as McMillan’s arrest, where witnesses saw him “bounce” an arrestee’s head on the internal stairs of an MTA bus being used to transport Occupy arrestees. The court filings also allege that Bovell was part of the infamous Bronx ticket-fixing scandal, which has implicated at least fifteen other officers and led to the firing of one sergeant so far.
In response, the NYPD’s lawyers said in court filings that three of these incidents are accusations without any substance or lawsuits to back them up, and that Bovell has never been accused of sexual assault before. The bodega fight, for example, is “misleading,” they say, in that Bovell was actually assisting in the arrest of a man who was biting another arresting officer and kicking an EMS worker in the chest. The Occupy “head bouncing” incident was never heard about or investigated by the Internal Affairs Bureau (IAB). The only investigations they have records of from that date are ones in which Bovell is the victim: a prank call to his mother and an alleged YouTube video leaking his identifying information.
The Wakefield incident also went down a little differently, they say: “Officer Bovell and his partner attempted to pull over a man on a motorcycle… The motorcyclist refused to stop and ended up hitting a parked department vehicle. Officer Bovell was given a command discipline for a procedural violation in which he failed to transmit the pursuit over the department radio. However, the chief allegation against Officer Bovell of Injuring a Prisoner in Police Department Custody was found to be unsubstantiated.” As for the alleged involvement in ticket-fixing, the NYPD lawyers dubbed that to be “immaterial” to the current case.
In any case, the law doesn’t allow a defense attorney to see the entire IAB file; the judge would have to review it, select out the portions he or she deemed relevant, and send them to the defense. But Zweibel won’t be doing that; in his decision yesterday, he said McMillan hadn’t made “a clear showing of facts sufficient to warrant the Court ordering the NYPD to produce Officer Bovell’s personnel records.” He dismissed the accusations against Bovell out of hand, writing: “[T]hey are all unsupported and three of them are made without any evidence whatsoever to support that belief.”
Stolar, McMillan’s attorney, calls the judge’s decision “disappointing.”
“Internal affairs investigated him and lawsuits were filed,” he says of Bovell. “That’s sufficient allegations that tell me something is going on, and that he did get some internal discipline on some of them. The judge basically says that unless you can make a showing that there’s something in the file that shows your client is innocent, you can’t have the file.”
It wasn’t that he was expecting to find IAB reports that Bovell made “bad arrests” in the past, he says. “That just doesn’t get in there. What is relevant, though, are matters of misconduct which are particularly relevant to the officer’s credibility and particularly cases where he’s been involved in alleged assaultive conduct and he’s turned around and then charged someone with a crime. That’s exactly what happened to Cecily.”
Stolar argues that any information about Bovell is crucial, because he’s the only officer testifying. “It’s a one-witness case,” he says. “He’s the only one who’s saying what’s going on. So his credibility becomes crucial.. I believe, based on the recorded instances of misconduct, there have to be more and I wanted to look at them.”
Even without the IAB file, Stolar says, he’s got plenty of material to “undermine [Bovell’s] credibility, but I’d like more. My client is looking at seven years in jail and I’ll do everything I can in her defense.”
Justice for Cecily, a legal support group advocating for McMillan, also issued a statement. It reads, in part:
Judge Zweibel’s interpretation that such a history is ‘irrelevant’ to the case at hand sets a chilling tone for the case moving forward. The denial of access to vital information such as Bovell’s conduct within the NYPD, is unfortunately common, however contrary to common sense and justice. While Judge Zweibel may choose to ignore public will, it will ultimately, be up to the Jury to determine Cecily’s fate.
Judge Zweibel’s full decision follows, as does footage from McMillan’s arrest.
Zweibel’s Decision 3-19-14