Update, 3:08 p.m.:
A jury has found Occupy Wall Street activist Cecily McMillan guilty of assault on a police officer. Her sentencing will be May 19. She was remanded into custody, pending sentencing. Judge Ronald Zweibel refused to let her stay free on bail. A full update can be found on page three.
The Voice‘s Anna Merlan posted this photo of the police presence:
— Anna Merlan (@annamerlan) May 5, 2014
Original story below.
After nearly a month, the trial of Occupy Wall Street activist Cecily McMillan is expected to end today, May 5. McMillan is accused of deliberately elbowing police officer Grantley Bovell in the eye during a six month anniversary Occupy demonstration on March 17, 2012. On Friday, the jury heard closing arguments from both sides, and this morning, they’ll be instructed and sent to begin their deliberations. McMillan is charged with assault in the second degree, and faces up to seven years in prison if convicted.
The last person the jury heard from was Assistant District Attorney Erin Choi, the lead prosecutor in the case. She called McMillan’s allegations that Officer Bovell had grabbed her breast “heinous” and unbelievable, saying that if McMillan had truly been assaulted, she would have reported it right away, while in police custody.
“She might as well have said that aliens came that night and assaulted her,” Choi told the jury.
Choi’s summation was filled with aggressive, sometimes inflammatory statements that visibly shocked McMillan’s supporters in the audience. (They also had a noticeable impact on some members of the press, crammed shoulder to shoulder and laptop to laptop in the front rows of the courtroom.) At one point, referring to Bovell’s prior involvement in a ticket-fixing scandal, in which he had five parking tickets illegally dismissed, Choi told them, “What do these five parking tickets mean? Does it mean anyone can assault him whenever they feel like it? If you acquit this defendant, that’s what you’re saying.”
Before Choi spoke, Martin Stolar, one of McMillan’s two attorneys, spent over two hours on his own closing arguments. At times he sounded like a long-winded professor, ruminating on the history of protest in the United States (“Being arrested for civil disobedience is as American as apple pie,” he told the jury) and going back over much of the testimony in the case. He stressed McMillan’s bonafides as a nonviolent activist, saying, “She doesn’t abandon her principles for the momentary pleasure or experience of assaulting a police officer.”
McMillan’s lawyers have maintained that McMillan wasn’t heading to Zuccotti Park to protest. She was decked out in an all-green outfit with matching eyeliner, celebrating St. Patrick’s Day with a friend from out of town. They say she stopped by Zuccotti Park to meet up with friends and got caught up in an overly aggressive police clearing of the park.
“Send Ms. McMillan home,” Stolar told the jury. “Send her back to school. Let her be a teacher, a politician, or president of the United States.”
But the prosecution argued that McMillan was intoxicated and feeling cocky, and deliberately elbowed Bovell after shouting “Are you filming this?” at someone in the crowd.
McMillan’s “political motives for being in the park” were irrelevant, Choi told the jury. “This case is not about political views or ideologies,” she said. “It’s not about rich versus poor… This has nothing to do with Occupy Wall Street.” Whatever her reasons, she said, McMillan struck Bovell.
Choi also attacked McMillan’s claim that she was grabbed from behind by her right breast, and that that was the reason that her elbow flew up and hit Bovell. “This defendant wants you to believe… she was grabbed by her right breast,” the prosecutor said. “But this video is crystal clear.”
She was referring to a blurry, chaotic YouTube video that does show McMillan elbowing the officer; the defense attorneys have argued it also shows a dark blur, possibly Bovell’s arm, crossing McMillan’s body in the moments before the attack. Choi’s claim that the video was “crystal clear” prompted what sounded like shocked laughter from several reporters in the front row. (A court security guard quickly rushed over and hushed them.)
Choi called McMillan’s claim that Bovell had grabbed her “absolutely offensive” and “physically impossible,” and said it was “absurd how nonsensical that story is.”
If McMillan was truly grabbed, Choi said, the young woman would have reported it right away. She pointed out that she spoke to a social worker and a psychiatrist in the hospital after she was arrested, and didn’t mention the incident to either of them.
“This is not someone who would be too shy to say she was sexually assaulted, if she was sexually assaulted,” Choi said.
The prosecution’s case had also relied heavily on McMillan’s medical records, which did not mention a bruise on her breast and didn’t diagnose her as having suffered a seizure in the park (bystanders saw McMillan having what looked like a seizure; she testified during the trial that her doctors told her they wouldn’t be able to diagnose a seizure after the fact). Choi said the seizure was a fake, calling it “the performance of a lifetime.” (She also implied, but did not say outright, that McMillan had also faked breathing problems after she was arrested in December of 2013 in an unrelated misdemeanor. We have obtained a copy of the complaint in that case. It doesn’t say how McMillan was taken into custody or whether she complained of breathing issues.)
McMillan also told one doctor shortly after the arrest that she wasn’t in serious pain, but told another doctor two days later that her pain was a 10, the worst kind. “This defendant is not reliable and cannot keep her story straight,” Choi said. She added that the first time McMillan’s bruised breast was noted by a doctor was three days after the incident, when McMillan saw her own doctor at the Institute of Family Health. The prosecutor implied that McMillan had bruised her own breast. For Bovell to have grabbed her hard enough to leave a bruise and scratches, she said, he would have to have “razorblades as fingernails and a hot iron for a hand.”
Choi called on the jury to convict McMillan, telling them, “She has no right to have a jury ignore the clear and overwhelming evidence of guilt against her.”
We’ll update this post with the verdict as soon as the jury returns one.
The jury began deliberating around 10:30 this morning and wrote a note to the judge at 1:15 p.m. saying that they had reached a verdict. Court officers set up a security screening area outside the courtroom and searched everyone going in, something they hadn’t done for any other day of the trial. Phones were not permitted.
In the courtroom, more than 30 court security officers ringed the room, shouting occasionally for quiet. McMillan, clad in a white dress and grey blazer, stood between her attorneys. As the jury filed in, her face grew so pale her lips appeared blue. None of the jurors made eye contact with her as they took their seats.
After the verdict was announced, a low murmur of dismay swept the room. Zweibel thanked the jury for their service and excused them. Prosecutor Choi immediately asked that McMillan be remanded into custody pending her sentencing. Stolar objected, calling it “not appropriate.”
“Ms Mc.Millan has attended every single court appearance for the past two years, knowing exactly what the outcome could be,” he told the judge. “She’s not likely to cut and run.” He asked that she be freed on bail. The judge refused.
Almost immediately, a group of McMillan’s supporters seated in the second row of the courtroom’s right side stood up, pointed at the judge and began chanting “Shame!” repeatedly. A fresh wave of court security officers poured in through a side door of the courtroom, bunches of ziptie handcuffs at their belts. They physically forced the shouting people back into their seats. A smaller woman was lifted over the bench and placed forcibly in the row behind her. The court security officers began clearing everyone from the courtroom. In the commotion, Judge Zweibel had disappeared from the bench.
“Did the judge order the court cleared?” another of McMillan’s supporters shouted. From a back room, another court officer appeared and announced that yes, the judge wanted the room cleared. The protesters were escorted out, still chanting.
Outside the courthouse, with more court security and police standing a few feet away, a member of the Justice 4 Cecily support team read a statement. She said they are “devastated” by the verdict, and called Judge Zweibel biased: “It has been clear from day one that Cecily has not received a fair and open trial. The job of a judge during a jury trial isn’t to guide the verdict to fit his opinion. Judge Zweibel, who consistently suppressed evidence, has demonstrated his clear bias by consistently siding with the
“It is disgusting to see vast resources of taxpayers wasted for over two years to prosecute Cecily,” she added. (The full statement can be found here.)
A few moments later, one of McMillan’s lawyers, Martin Stolar, appeared. He said McMillan won’t necessarily do jail time: “The judge has extraordinary scope. It’s not required a jail sentence be imposed.” He said McMillan is “disappointed and sad, but she remains strong. She understand she’s got to do what she’s got to do. I think Cecily will be strong enough to come through this.”
Stolar said if she’s imprisoned “my guess is she’ll finish her thesis on Bayard Rustin and not waste any time.” He said McMillan would appeal, although an appellate lawyer hasn’t yet been chosen, and asked that if she’s imprisoned, her supporters write her letters. He noted she’s in Rikers Island until her sentencing date, and called it “a hell hole for anyone who’s there.”
“I find it fairly shocking the DA’s office chose to prosecute this,” he added. Bovell’s “little shiner,” he said, “doesn’t even measure up to the consequences” that McMillan has faced, including a PTSD diagnosis. Nonetheless, he said, “He is the elected DA. You might consider that the next time you vote.”
McMillan’s sentencing will be May 19.
Send your story tips to the author, Anna Merlan.