A jury has found former Occupy Wall Street activist Cecily McMillan not guilty of interfering with an arrest in a Union Square subway station. McMillan was charged with obstruction of governmental administration on December 7, 2013, when two police officers said she interfered with their investigation of two people they suspected of turnstile-jumping. McMillan, who faced up to a year in jail on the charges, hugged her attorney, Martin Stolar, when the verdict was read, then yelled “thank you!” at the jury as they departed.
The case centered around a roughly ten-minute incident that happened on the L train platform around 1 a.m. on the morning of December 7. In their testimony, NYPD transit offiers Luis Castillo and Brian Rothermel said that McMillan had gotten in their way as they tried to question two people, Abril Chamorro and Martin Delcanizo, who they’d seen go through an exit door into the station. The incident was mentioned many times during McMillan’s felony trial earlier this year for assaulting an officer during a December 2012 Occupy protest, with prosecutors Erin Choi and Shanda Strain arguing it showed she had a pattern of fighting with the police. Strain showed up at one point during this latest trial, sitting in the front row and not visibly reacting when McMillan spotted her and said, cheerily, “There’s my old friend!”
Officer Castillo testified that McMillan prevented Delcanizo from handing over his ID to the officers, grabbing his wrist so that the license fell in his lap. He said too that when the officers took the couple to the precinct office to do a warrant check, McMillan followed, “yelling and screaming” at them not to cooperate. But Rothermel didn’t mention hearing McMillan doing any yelling and screaming, only that she’d gotten in between the two officers as they were walking the couple towards the precinct.
Castillo also testified that he smelled a “faint” smell of alcohol on McMillan, and that she had “raced” him to the door of the precinct, then engaged in a tug-of-war with him as he got inside and tried to prevent her from getting in. When she got inside, the officers asked for her ID and almost immediately handcuffed her, although she wasn’t ever read her Miranda rights or actually told she was being placed under arrest. Both officers testified that McMillan acted “hysterical,” in their words, after she was cuffed and her glasses were taken from her as they searched her for weapons. A video was played for the jury which wasn’t visible to the audience; in it, a female officer can be heard telling McMillan to “calm down” as she weeps and says, “I can’t see!” The cellphone video that McMillan says she shot of the arrest was not introduced; McMillan claims the NYPD officers deleted it, something they both denied on the stand.
Stolar, McMillan’s attorney, chose not to have her testify. In his closing arguments, he told the six-person jury, “I sincerely hope you are somewhat troubled by the contradictory testimony you’ve heard by the two main police officers in this case.” He also ridiculed the idea that McMillan was somehow filming while walking backwards up the stairs in a tight dress and four-inch heels. He held the shoes aloft in his hand as he addressed them, saying, “That’s about impossible to do. I don’t wear heels, but some of you might.”
Stolar said that McMillan’s conduct amounted to her being obnoxious, not criminal. “We have not yet criminalized being loud, obnoxious and annoying,” he said dryly.
Prosecutor Leah Saxtein retorted in her own closing arguments that it’s entirely possible to walk backwards up the stairs in heels of that height. “New York City women do many things in heels,” she said. “And besides, these aren’t platform.” She also said that McMillan’s conduct “went way beyond” merely being obnoxious. “Her conduct constitutes a crime.” She added, too, “We don’t have to provide a motive for you in this case. Whether the defendant was drunk, just doesn’t like the NYPD, or whether she wanted to provide legal advice [to the couple] even though she’s not a lawyer, it doesn’t matter.”
The jury deliberated for about an hour and a half before returning the not guilty verdict. When approached by the Voice, a juror who asked not to be named said, “The prosecution just didn’t overcome the burden of proof,” adding that the differing testimonies of the two officers “was also part of our conversation.” About an hour later, the juror sent another statement by email: “”The defendant should not conclude from our verdict that we endorse her actions. The prosecution simply didn’t prove its case beyond a reasonable doubt.”
McMillan, who was laughing and crying at the same time as she left the courtroom, held a brief press conference outside after the verdict was read. She denied telling Rothermel that she would kill his wife and children, something the prosecution alleged but that the judge deemed too prejudicial for the jury to hear.
“Absolutely not,” she said. “They had three different videos of me in custody. That sounds like something they would record, doesn’t it? I would never threaten an officer, or his wife, or his family.” She added, too, that during her felony trial, prosecuting attorney Strain had claimed there was “video evidence” of McMillan threatening the officer. McMillan is appealing her conviction in that felony case; she said Strain’s claim “will be factored into my appeal.”
“Thank you so much for showing up for two years of court,” she told a small crowd before leaving. “What a fricking journey.”