Portside

On Saturday, May 3, my son and I took Cecily McMillan to lunch. Cecily, as is now widely known, is an Occupy Wall Street activist and the defendant for the past month in a criminal trial for allegedly assaulting a New York City police officer; she is also, as I noted in a previous post at Dissent, a graduate student at the New School and my thesis advisee. We talked about her trial and agreed that after her lawyer's masterful summation of the case the day before, she was almost certain to be acquitted. The worst outcome she faced when the case went to the jury on Monday, May 5, we thought, was a hung jury.

We also discussed her future plans, which included moving back to her home town of Atlanta and writing a book about her experiences with Occupy. On Sunday evening, May 4, she sent me an email asking for suggestions about what to say to the press the next day, following acquittal or dismissal of the case. In my reply I sent her the opening paragraph of the famous Eugene Debs statement to the court in 1918 - "while there is a soul in prison, I am not free . . ." - and some generic remarks thanking her lawyers, supporters, and the jurors (the latter for "proving themselves able to think for themselves").

The next day, May 5, after deliberating for less than three hours, the jury found Cecily guilty, and the judge remanded her to Riker's Island to await sentencing on May 19.

How I got to be this old and yet remain so stupid is a question for another day.

How Cecily, twenty-five years old and facing the prospect of spending the next seven years in prison, was convicted on the basis of the flimsy case presented by the DA's office is a more important question. The "central issue" in the trial, as the New York Times noted during jury selection in early April, "is who assaulted whom" in the midst of a police operation clearing Zuccotti Park, birthplace of Occupy Wall Street, on March 17, 2012:

    Prosecutors say Ms. McMillan wheeled around and elbowed Officer Grantley Bovell in the face while he was arresting her. Ms. McMillan says Officer Bovell grabbed her right breast from behind and she reacted instinctively, not knowing he was a police officer.

    She has published pictures, which she says were taken just after her arrest, of a dark bruise on her breast.

Justice Ronald A. Zweibel, the presiding judge, would not allow the defense to introduce evidence from police internal files about other occasions when Officer Bovell used excessive force (he is currently facing a civil suit from another protester arrested the same night as Cecily).  He did allow testimony establishing that Bovell was involved in a notorious ticket-fixing scandal in the Bronx, fixing parking tickets for himself, family members, and friends, with an official reprimand in his file. So the case came down to Officer Bovell's credibility versus that of the defendant.

Cecily's lawyer, Martin R. Stolar, attempted to persuade the jurors that Bovell's testimony had numerous internal contradictions. He pointed out, for example, that in the initial arrest report Bovell charged that Cecily attacked him while he was escorting another prisoner from the park. By the time the grand jury handed down its indictment, it was Cecily he was escorting when she attacked him. Bovell claimed that he first noticed Cecily when she was cursing at a female police officer, and that the female police officer was by his side when he was attacked. Why, then, Stolar asked the jurors, had the prosecution made no attempt to identify or produce the mystery female police officer - despite the fact that if they had, she could have provided corroborating evidence for Bovell's testimony? Other police officers who were present that night at Zuccotti Park testified regarding one or another aspect of the case, but not one of them, Stolar noted, witnessed the interaction between Cecily and Officer Bovell.

There was one other piece of evidence against Cecily, a video taken by another protester of the events that led to her arrest. According to the prosecution, moments before assaulting Office Bovell, Cecily called out to onlookers "is anyone filming this?" The prosecution argued that, in search of glory or excitement, she wanted a record made of her daring act of revolutionary bravado, or something like that. Her lawyer suggested a more plausible explanation - that she feared exactly what happened, a physical assault in which she was the victim, and hoped that a camera would provide a deterrent. If Cecily was contemplating committing a felony, he asked, why would she solicit a filmed record of her crime? In any event, as this account for the Village Voice suggests, the video evidence presented to the jury was less than compelling:

    [Assistant District Attorney Erin] Choi also attacked McMillan's claim that she was grabbed from behind by her right breast, and that was the reason that her elbow flew up and hit [Police officer Granley] 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.)

It should not be a good sign for the prosecution when journalists assigned to cover a case respond with open derision at a key piece of evidence like the blurred YouTube video. But the jurors bought it. Following the trial, one juror sought out a reporter from the Guardian newspaper (which consistently provided the best coverage of the case). He was motivated by the shock of learning that his vote for Cecily's guilt could lead to her spending the next seven years in prison:

The juror confirmed [Cecily's lawyer] Stolar's fears. "For most of the jury, the video said it all," the juror said. The juror said that an immediate vote after the 12 were sent out for deliberation found they were split 9-3 in favour of convicting. After everyone watched the clip again in the jury room, the juror said, two of the three hold-outs switched to the majority, leaving only the juror who approached the Guardian in favour of acquitting the 25-year-old. Sensing "a losing battle", the juror agreed to join them in a unanimous verdict. "I'm very remorseful about it," the juror said a few hours later, having learned of McMillan's potential punishment.

Reinforcing the ambiguous video evidence was the obvious and unrelenting hostility of the judge toward Cecily and her lawyers, the mild-mannered demeanor displayed by Officer Bovell on the witness stand, and, possibly, an inclination on the part of individual jurors to take the word of uniformed authority over that of scruffy anti-establishment protesters. Not that Cecily presented herself that way in the courtroom, but it didn't help her when one "supporter," acting on his own, stood up in court mid-trial and began denouncing the proceedings as a typical example of capitalist injustice, etc.

I think there was something else involved. Call it cognitive dissonance, for lack of a better term. The very aspect of the case that outraged Cecily's supporters the most - that she was the victim of a brutal sexual assault and wound up being tried as the aggressor - was too disturbing a reality for the jurors to come to grips with. Who wants to live in the kind of a society where that can happen? Better just to deny it, accept the official version, vote guilty - or risk being part of a "losing battle."

On a final note: the New York County District Attorney Cyrus Vance, Jr. (son of Jimmy Carter's Secretary of State) would not offer Cecily a misdemeanor plea. Remember that when he seeks higher office, as someone with his pedigree and position inevitably will.

[Maurice Isserman is a professor of history at Hamilton College.]