Above: Cecily McMillan on the ground convulsing after being arrested.
Note: We have been closely following the trial of Cecily McMillan, the occupy activist who is facing 7 years for elbowing a police officer in the face. And, we urged the New York City prosecutor to drop the charges against Cecily as her actions liked the criminal intent necessary to commit a crime; and the police officer in the case has a record of dishonesty and violence that undermines his testimony in this one witness case.
On Friday, opening arguments indicated this is a case of the credibility of two witnesses Office Grantley Bovell and Cecily McMillan. There are two different stories of the incident and no witnesses to confirm either version. A video tape of the incident is so unclear that both sides say it proves their case. McMillan has corroborating evidence for her story, photographs taken by her doctor that show bruises on her body, most importantly bruises showing fingerprints grabbing her right breast.
McMillan’s version is that Bovell violently grabbed her breast from behind and she instinctively reacted throwing her elbow around to hit her assailant. Bovell’s version is that Cecily was screaming at a female police officer when he arrived and he went over to escort her out of Zuccotti Park. He will testify, according to the opening argument, that Cecily asked her if the cameras were on, then knelled down, came up quickly and threw her elbow into his face.
Nick Pinto reports in the Wall Street Journal that Assistant District Attorney Erin Choi said that Ms. McMillan “thought she could get away with assaulting a police officer while shielding herself in a protest.” He also reported McMillan’s side of the story writing: “Defense lawyers said Ms. McMillan reacted instinctively to having her right breast grabbed from behind by Officer Bovell, and said they intend to introduce a photograph, taken days after the incident, showing a handprint-shaped bruise on that part of her body. She “reacted with surprise,” said defense lawyer Rebecca Heinegg. ‘She did not even know that the person behind her was a police officer.'”
The prosecutor has admitted that Bovell has been reprimanded for his involvement in the Bronx ticket fixing scandal — which goes to his truthfulness and ethics. In addition, the defense will be allowed to ask about other violent incidents Bovell has been involved with, including multiple suits against him.
In addition to opening comments, two witnesses were heard on Friday. One was a young eye doctor Eva Yan who treated Bovell’s eye injuries. She testifed that her testimony was based on her notes and that is all she had. Under cross examination, Marty Stolar got her to acknowledge if Cecily had intended to hit him in the eye the injuries would have been more serious, according to #JusticeForCecily twitter reports. One twitter report by Kathryn Funkhouser, said “Stolar’s SHREDDING her credibility in cross-examination.”The second witness was Sgt. Joseph Diaz if the NYPD. Shay Horse reports on twitter that Diaz testified he was assigned to zuccotti and saw Cecily when she was arrested.
After court Marty Stolar discussed the days events and among other things stressed the importance of supportive public presence in court when it reconvenes Monday at 9:30AM. The court schedule next week is a near full-day on Monday, full day on Wednesday and a half day on Friday. Visit Justice For Cecily for further updates and information about going to court. The trial may last for three weeks.
The article below from The Guardian provides further details on the opening arguments.
Occupy Wall Street activist intended to elbow police officer – prosecution
• Trial of Cecily McMillan on assault charge begins in New York
• Defence says Officer Grantley Bovell ‘grabbed right breast’
By Jon Swaine
The Guardian, April 11, 2014
An Occupy Wall Street activist asked if she was being filmed before intentionally elbowing a New York police officer in the face, prosecutors told a court on Friday, as her lawyers argued that she struck out instinctively after having one of her breasts grabbed from behind.
Video footage will show that Cecily McMillan “crouched down, then bent her knees, and then aimed her elbow at the officer and then jumped up to strike” the officer as he led her away from a protest in lower Manhattan’s Zuccotti Park in March 2012, Erin Choi, an assistant district attorney, told the jury in her opening argument in McMillan’s trial for assault.
“‘Are you filming this?’, ‘Are you filming this?’ were the defendant’s words right before she intentionally attacked Police Officer Grantley Bovell,” said Choi.
After receiving a blow to his left eye from McMillan’s elbow, Choi said, “Officer Bovell was completely horrified. This was the last thing he was expecting to happen that day.”
McMillan, 25, is accused of assaulting Bovell, 35, and attempting to stop him from performing his duties during an operation to clear the park on the night of 17 March, when hundreds of protesters had gathered to mark six months of the Occupy movement. McMillan, who denies the charge, faces up to seven years in prison if convicted.
One of McMillan’s attorneys, Rebecca Heinegg, told the court in her opening argument that McMillan did not intentionally strike Bovell but simply “reacted in surprise” to being grabbed on her right breast. Heinegg said the trial would centre on “what happened in a split-second on 17 March 2012, inside Cecily McMillan’s head”.
Heinegg stressed that while McMillan was “a committed activist” involved in Occupy Wall Street, “known among other activists for her commitment to non-violence”, she was on “a day off from Occupy” on 17 March 2012.
“She was dressed in bright green, she had friends visiting from out of town, and she was out in the West Village and the East Village to celebrate St Patrick’s Day,” Heinegg said.
McMillan had briefly stopped at the park to collect another friend, said Heinegg. “As Cecily was walking out of the park, heading back to her friends, she was suddenly grabbed from behind and pulled up and back by Officer Bovell, grabbed on her right breast, grabbed so hard that it left a bruise in the shape of a hand-print.
“As she reacted she hit Officer Bovell in the face with her elbow. She did not intend to hurt him, she certainly did not intend to prevent him from completing his police duties. She did not even know that the person grabbing her from behind was a police officer. She just reacted. And ladies and gentlemen, reacting to being grabbed by a stranger is not a crime”.
Choi, however, told the jury that after arriving at Zuccotti Park Bovell, of the 40th precinct in the Bronx, spotted McMillan “shouting, yelling and cursing at a female officer” after protesters were told by police that they must exit so that the park could be cleaned, and insisting that she did not have to leave.
He “decided to escort her out of the park by placing his hand on the back of her right shoulder,” Choi said.
“As they walked, Officer Bovell’s open palm was on the back of her shoulder,” said Choi. “The defendant decided to turn to her left and say: ‘Are you filming this?’, ‘Are you filming this?’. Officer Bovell, curious, turned to the left to find out who the defendant was talking to. At that moment, the defendant crouched down and jumped up and struck Officer Bovell.”
Choi claimed that when McMillan “attempted to flee”, Bovell “fell on top of her” and stood her upright so that she could be walked to a holding area where arrested protesters were being held. McMillan then said that she could not breathe and began “kicking her legs to get away from the officer, laying on the ground and refusing to give the officer her hands so that she could be handcuffed”.
“Officer Bovell informed her that if she could talk she could breathe,” said Choi.
McMillan was placed on a bus to be processed. “As soon as she got on the bus, the defendant acted as if she was suffering from a seizure and could not breathe,” Choi said, adding that McMillan was removed from the bus and began convulsing on the pavement.
Choi told the jury Bovell suffered bruising, swelling and a cut under his left eye, and went on to suffer headaches and blurred vision. “That’s how hard the defendant struck the officer,” she said.
Dr Eva Yan, an optometrist who examined Bovell two days later, testified that she recorded his iris as being slightly inflamed and that his cornea had a small scar. She said under cross-examination from Martin Stolar, McMillan’s lead attorney, that the injuries probably would have been more serious if an elbow had been aimed directly at his eye.
Wearing a purple dress, McMillan, an organiser and former New School student, sat between her attorneys taking notes as prosecutors made their arguments. A group of supporters and Occupy Wall Street organisers sat watching in the public benches. The trial is believed to be the last of a series of prosecutions brought by Manhattan authorities against the 2012 protesters.
Choi acknowledged that questions would be raised by McMillan’s attorneys about Bovell’s past conduct. Previously, during jury selection, she told told jurors Bovell had been disciplined by police chiefs for having five parking and speeding tickets fixed by his union representative as part of the so-called “Bronx ticketing scandal” that became public in 2011.
The NYPD has also confirmed in court filings in the trial that Bovell was previously subject to at least two other inquiries by the internal affairs bureau, and was disciplined over a 2010 case in which a 17-year-old boy claimed to have been injured after being run off the road on his dirt bike by police.
Bovell is also being sued in a civil lawsuit by an Occupy activist who claims the officer intentionally banged his head against the seats of a bus while removing him from the same protest on 17 March.
Choi asked the jurors to instead “focus on what happened” in the approach to McMillan striking Bovell in the face.
The trial, which is expected to last three weeks, is scheduled to resume at the state courthouse in Manhattan on Monday morning.