Above: Cecily McMillan and Grantley Bovell arrive to the court Photo by Steven Hirsch for NY Post
Judge Takes the Side of the Prosecutor
The key witness for the government, Officer Grantley Bovell, was the main focus of attention all week in the Cecily McMillan trial. Since this is a one witness case, his testimony and credibility are critical to the result.
This week it also became evident which side of the trial Judge Zweibel is on – he’s almost like having another prosecutor in the room. Throughout the cross-examination the prosecutor objected to defense attorney’s line of questioning, people in the court room say there were scores of objections. The judge ruled for the prosecutor and prevented Stolar from providing any context to what was occurring in Zucotti Park and in the conflict between Cecily McMillan and Bovell. Judge Zweibel is worrisome. In the pre-trial phase he urged Cecily to plea to a felony, telling her if she were found guilty the sentence would be more severe. Now, he is carrying that pro-prosecution attitude into the trial.
Gagging The Defense Out Of Court, And In The Courtroom
Zweibel was also furious with Stolar for talking to the media. Mild comments made to The New York Times about the extent of Cecily’s injuries and how this case should not have been prosecuted, became a major issue and resulted in a gag order from the judge. When Stolar brought the gag order up again at the next hearing, explaining that the jury is not allowed to read or listen to the media and anything Stolar tells the media he will also be saying in court, Judge Zweibel gave no response to Stolar but insisted that the gag order remain.
Stolar was also limited inside the courtroom by the judge. Judge Zweibel did not allow Stolar to bring up issues regarding Officer Bovell’s violence against Austin Guest, another person arrested that night, even though Stolar said there was an additional witnesses to Bovell slamming Guest’s head and Guest was ready to testify. Shawn Carrie tweeted about the incident when it occurred, writing: “Officer 17743 smashed Austin Guest’s head into a window as his head was upon a step.” Bovell’s bade number is 17743.
Bizarrely, Judge Zweibel claimed that eye witness testimony, as well as the testimony of the victim, was hearsay. Hearsay is a statement made out of court that is offered in court as evidence, i.e. The witness said Jane Doe told him she saw Bovell’s head being hit. Stolar was offering direct testimony, e.g. I saw Officer Bovell bang Guest’s head, or Officer Bovell banged my head. Judge Zweibel showed his pro-police bias when he said “Well he must have been resisting.” Stolar warned the judge that this ruling was reversible error. The testimony is obviously relevant and is also not hearsay.
Stolar was able to ask a few questions of Bovell regarding two previous internal investigations about assault charges he faced in 2009 and 2010. In one of the cases, he denied kicking a civilian, but admitted breaking his foot as a result of their encounter.
The issue of Bovell being involved in the Bronx ticket fixing scandal also came up, with Bovell saying he thought it was normal behavior to fix tickets it is part of “the culture of the department” and “”this is what we do. Everyone does it.” Bovell admitted in his testimony that he fixed at least five tickets making them disappear including one parking ticket for his father and one speeding ticket for a close female friend. Bovell also stated that these 5 tickets he was caught fixing happened within an 18-month period. Bovell said in court during testimony, “there were other tickets I probably fixed as well”.
Zweibel tried to cut this line of questioning off saying, “I think we’ve exhausted this line of questioning.” Stolar responded: “I don’t”and continued. Bovell was docked 25 vacation days and five suspension days. He was threatened with dismissal from the NYPD, but instead was given a one year suspension.
Video Evidence Unclear and Unexpected
A key piece of evidence is a video that shows some of the conflict between Cecilly and Bovell. Stolar contested the video shown saying “It’s been edited. It’s not the whole thing.” Stolar asked Bovell if this video was the same as the one he was shown previously during grand jury. Stolar argued the video was altered in some way prior to posting on YouTube, describing the original video as closer. Tweets describe the defense and prosecution having a heated argument over the video in a sidebar conference with the judge. Shawn Carrié tweeted that the prosecutor admitted it was not the original video that was first retained as evidence many months ago, which was also shared with defense. Stolar was insistent that the video used for evidence in court needs to be identical to the one shown in the grand jury. The judge allowed this video of the incident to be played in court.
The video does not show how Bovell approached her and the moment when he would have grabbed her breast was blocked by other people. Bovell claimed that Cecily asked ‘are you filming this’ before she struck him. He describes her crouching down and then coming up with her elbow in his face. Judge Zweibel showed his bias when he expressed his own belief about the video, repeating the prosecutions’ argument as if it were fact regarding the video content, saying ‘the video shows that she crouched down and then hit the cop with her elbow.’ Stolar clarified that this is not fact but rather the prosecutions’ argument.
Officer Bovell’s Unverified Claims
A key part of Bovell’s testimony was that Cecily was screaming at a female police officer and that is why he approached her. There is no video showing this occurring Stollar asked Bovell if he knew her name or badge number, and if there was any record of her being there. He also asked if investigators had made any efforts to locate her. Bovell’s response to all of these was “I don’t know.” This officer remains unknown so this part of Bovell’s testimony cannot be confirmed. The testimony of this officer, if she exists, would have been very important to the prosecution as it would have added credibility to Bovell’s testimony and undermined Cecily. The lack of this testimony could be one reason Bovell’s testimony is questioned by the jury, along with being involved in the ticket fixing and prior conflicts with civilians.
Another conflict in Bovell’s scenario is between him and Officer Lisa Waring who testified that Bovell was escorting another protester out of the park when Cecily assaulted him. Bovell denied this, even when given a copy of her sworn testimony he continued to deny it.
Bovell got away with not bringing his notes, a memo book that Stolar requested saying he forgot. Stolar asked him for his memo book as his notes may have shed more light on what occurred but instead Stolar was limited to portions of the notes given to him by prosecutors. Other judges would have reacted strongly to Bovell’s failure to bring the memo book, but Judge Zweible said nothing.
Cecily’s Seizures Denied By Bovell
Bovell claimed that Cecily was faking a seizure when she was arrested. Stolar asked him ‘when did you go to medical school?’ Judge Zweibel sustained the prosecutors objection but did say Bovell had no medical training or knowledge of different types of seizures.
The judge also sustained the prosecution’s objections to questions of whether or not Bovell was asked questions that night about Cecily’s injuries, preventing the jury from knowing more details about her injuries and the extreme police behavior.
In describing how Bovell appeared on the stand observers say he did his best to be very calm, soft-spoken and reasonable. A few times another side slipped through–testy and sarcastic but he’s kept that in check pretty well. His favorite phrase on the stand was ‘I don’t recall’ which was his answer for an astonishingly high percentage of Stolar’s questions.
One unfortunate incident occurred at 12:15 when proceedings were disrupted after a man yelling things like “Free Cecily” and “No to a Police State.” He had to be escorted out of the courtroom. Stolar seemed exasperated at this disruption and the court audience, made up of supporters of Cecily, made hushing sounds. Shay Horse, who is tweeting about events in the courtroom, wrote that “everyone in the court audience was extremely disappointed by this action and hung our heads in shame.” People should know this kind of behavior does not help Cecily.
Supporters were frustrated by the blatant bias of Judge Zweibel, who consistently gave considerably more leeway to the prosecution to ask questions regarding the context of the incident but would not allow any such questions by the defense.
The prosecution will continue with their remaining witnesses on Monday morning beginning at 10:30am at 100 Centre St room 1116 part 41.
Sources of information for this article are the twitter feed #JusticeForCecily, Cecily McMillan Goes To Trail from the New School Free Press and JusticeForCecily.com.