On the Cecily McMillan Conviction

On Monday, Cecily McMillan was found guilty of felony assault for elbowing a cop in the eye when he was trying to arrest her at an Occupy Wall Street rally in 2012. She is now in jail awaiting sentencing where she’ll face up to seven years in prison. McMillan claimed she reflexively elbowed the officer after he grabbed her right breast. The jury was convinced she elbowed him with criminal intent. There is a video of the incident on YouTube, but it is too dark and grainy to see where the officers' hands were. So I don’t know.

Update: Cecily was sentenced to 90 days of prison and five years of probation. She served 58 days at Rikers Island, and was released in July, 2014. She wrote an article for Cosmopolitan about her experience, “I Went From Grad School to Prison”. In October, 2014, she was tried and acquitted on charges of obstructing police stemming from a separate incident (Colin Moynihan, “Occupy Wall Street Protester Found Not Guilty of Obstruction,” The New York Times, Oct. 10, 2014).

In May 2012, Daivd Graeber reported on an apparent tactic being used by NYPD of assaulting female protesters in an attempt at inciting them or their male companions to react in a criminal manner (“New Police Strategy in New York – Sexual Assault Against Peaceful Protestors,Naked Capitalism, May 2012). I don’t think that the speculation of an intentional tactic has been confirmed, although it is still a disturbing pattern. Later in 2012 a national consortium of law schools released a 132-page report, Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street, documenting “a pattern of abusive and unaccountable protest policing by the NYPD.” The report alleges 130 cases of aggressive or excessive force used by the NYPD in response to Occupy Wall Street. So McMillan’s claims fit within the known NYPD modus operandi, anyway.

Of course the jury was told nothing about those patterns of abuse, or about Officer Bovell’s own history of corruption and abuse. Molly Knefel has a worthwhile article about McMillan’s trial up at the Gaurdian describing how the “hyper-selective retelling of events to the jury mirrored the broader popular narrative of OWS” in which police violence is unquestioningly justified (“Cecily McMillan’s guilty verdict reveals our mass acceptance of police violence,” May 5, 2014).

But then the whole idea of a jury trial is that both sides are given a chance to present an interpretation of the accepted facts in a manner which paints their side in the best light. The jury can then decide on where the truth lies between the two extremes and determine if the facts as they find them meet the elements of the crime. But I’ve experienced a small first-hand taste of how such a method of finding truth between extremes can become rather absurd, and how the state has no qualms in using its status of legitimacy in the minds of jurors to distort the narrative in the courtroom.

I was arrested back when the state police raided Occupy Denver in 2011. During that event, the police disassembled tents and made a big mess of the park. The prosecutor then introduced photographs of that mess at my trial as evidence that the protesters (and by association, I) were messy. Not only was the evidence misleading, it was humorously irrelevant since I had not even been charged with a crime of mess-making.

I was at trial because I had refused a plea bargain. In response to my refusal, the DA added a more serious charge (“obstructing a law officer”) to my alleged crimes. At trial he managed to get my arresting officer to distance himself from his professional integrity by testifying using obviously coached language that I had “obstructed” his actions (testimony, fortunately in my case, the jury did not believe).

Cecily McMillan, maintaining from the beginning that she did not knowingly commit a crime, also refused a plea offer. So it is easy for me to see her vigorous prosecution as a revanchist attempt by the prosecutor to punish her noncooperation. When she was arrested, McMillan was tackled by several police officers. She then suffered a seizure (or series of seizures), and the police prevented street medics from attending to her (while rendering no aid themselves). The City of New York then spent two years (and untold amounts of public money) convicting her of a felony. All of that expense and trouble and careful portrayal of the evidence just to ensure that a girl who had a bad day in 2012 suffers some more.

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