The trial of Cecily McMillan, the Occupy Wall Street activist accused of assaulting a police officer during a demonstration two years ago, is expected to drag on for an estimated three weeks. Judge Ronald Zweibel has been visibly irritated for much of the trial, displeased by McMillan’s supporters wearing pink paper hands and hearts in the courtroom, and seemingly by the heavy media attention paid to the case. Before testimony continued yesterday, inflamed by a quote by one of McMillan’s defense attorneys in the New York Times, he imposed a gag order on both sides.
Officer Grantley Bovell, the NYPD officer accusing McMillan of assault, began his testimony on Monday morning, telling Assistant District Attorney Erin Choi that McMillan deliberately elbowed him in the eye as he tried to lead her from the park. During a brief press conference after court that day, Stolar told reporters that Bovell’s testimony wasn’t consistent with McMillan’s memories of the day, or a video of the incident posted on YouTube.
In truth, the chaotic video doesn’t do any favors to either side: McMillan can blurrily be seen elbowing Bovell, an incident her attorneys do not deny took place. But it’s impossible to tell whether or not Bovell grabbed her breast, which McMillan says is what preceded the elbowing.
Zweibel said Stolar’s mention in the New York Times story was unacceptable, telling him, “This case is to be tried in the courtroom, not in the press.”
“I don’t look for this,” Stolar replied. “Publicity comes with this case. If a reporter asks a question, I answer it.”
“I’m ordering both sides not to speak to the press,” the judge replied, testily.
Zweibel also made it clear that any discussion in front of the jury of a federal lawsuit against Bovell will not be allowed. In the suit, another Occupy protester, Austin Guest, accuses Bovell and another officer of rough treatment, including deliberately bouncing his head against the seats of a bus used for prisoner transport.
But Assistant District Attorney Erin Choi accused McMillan’s other lawyer, Rebecca Heinegg, of deliberately filing the lawsuit, which Choi called “frivolous,” several weeks before McMillan’s trial began, in order to “bolster a criminal case” against Bovell.
Heinegg called those allegations “offensive,” noting that she’d be subject to harsh penalties for filing a false suit. Nonetheless, Judge Zweibel called the allegations in the lawsuit “hearsay,” adding, “There are no specific allegations with regard to what Bovell did. It’s too general. I will not allow it.”
McMillan’s lawyers loudly protested, with Stolar telling the judge the decision was “completely unfair” and “reversible error,” meaning it would be grounds to have McMillan’s conviction overturned on appeal, if she is in fact convicted.
“I want to know, did he bang Austin’s Guests head on a seat?” Stolar told the judge, his voice rising. “That’s a vicious, immoral act.”
Zweibel was unmoved. Guest’s allegations can be discussed, but not in the presence of the jury, making them essentially worthless for the defense.
Bovell then continued his testimony, touching on his punishment by the NYPD’s Internal Affairs Bureau for “ticket-fixing” in 2011, when he was one of several dozen officers who asked their union delegates to get rid of speeding and parking tickets.
Bovell insisted that he didn’t know the practice was wrong or illegal. “It was a common practice,” he said. “We didn’t think it was something wrong.” He had a total of five tickets dismissed in that manner. His punishment by IAB was a five day suspension without pay, as well as losing 25 vacation days. He was also subject to one year of monitoring and forced to give up his off-duty job.
The officer’s testimony about his interaction with McMillan remained unchanged. Bovell stands 5’11,” and said McMillan, who is about 5’4″, managed to elbow him in the eye by “jumping.” After the assault, he said, he detained her in a holding area for about ten minutes, then tried to put her on the prisoner transport bus.
“She pretended to be dead,” he said. “She laid down and refused to walk. She was refusing to move.”
The defense says that McMillan was suffering from a seizure and other injuries, inflicted by Bovell and other officers. Stolar is expected to ask Bovell about those alleged injuries when his testimony resumes on Friday.
At one point, Choi asked Bovell why he wasn’t listed as the arresting officer on McMillan’s arrest paperwork, since he was the one who had actually placed her in cuffs.
“Because I was the victim,” he replied. In the audience, McMillan’s friends chuckled bitterly.