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The Judicial Frame-Up of OWS Protester Cecily McMillan

Let’s say you are a passionate, peace-and-justice advocating 25-year old female graduate student at NYC’s School of Social Research, participating in a legal OWS demonstration of several hundred in March 2012 at Zuccotti Park in NYC -- its sixth month memorial celebration. Suddenly from behind a man gropes your chest and you instinctively elbow him in the eye. Immediately you are set upon and beaten to the ground by multiple police officers. You are arrested and taken to a hospital where you are handcuffed to a bed. Then you are jailed without bail having been charged for felony assault.

How would you feel?

What would -- or could -- you do?

What would you do if, in spite of your protestations of innocence and victimhood, the NYC prosecutor’s office tells you if you plead guilty you will have to do no prison time but if you plead innocent you can be prosecuted by its zealous prosecutors, found guilty and receive up to seven years imprisonment?

Seven years imprisonment for instinctively trying to defend yourself?

This was -- and very much still is -- the plight of Cecily McMillan. She was arrested back in May 2012. On May 5, 2014, Cecily McMillan was found guilty of a felony assault in the second degree. On May 19, 2014 she was sentenced to 3 months imprisonment and 5 years probation.

Chris Hedges in “They Can’t Outlaw the Revolution” points out that other Occupy activists throughout the country also have been “framed” and pressured to “plea out” felony charges for probation rather than prison time. The restrictions of such a conviction deal are still very serious. You are not able to attend law school or serve on a jury. Any future in activism is risky for fear of violating your probation and additional arrest. During your period of probation your freedom is profoundly restricted.

If you don’t “plea out” then you have the added horror of prison time.

As you consider your options in this nightmare, the fact that you are INNOCENT is no small consideration for you. Presumably there is so much to validate your innocence!

There are witnesses who saw your mistreatment at the hands of the police. The officer involved was in plain clothes and never identified himself as a police officer. Citizen witnesses and other police saw you convulsing on the ground after having been beaten by the bevy of avenging cops. There is even a video of it.

There is also a record of accusations against this initial officer of brutality and corruption.

There was rampant police violence going on against other protesters the same time as your beating and arrest. There are videos of that violence to you and others.

There is a bruise the shape of a handprint over your right breast indicating your having been inappropriately manhandled. There are videos and photos of that bruising as well.

You are only one of the persecuted 8,000 Occupy protesters Hedges estimates have been arrested thus far in the push-back against OWS national citizen protests over the 2008 financial fiasco, meltdown and bail-out created by a corrupt financial ruling class enabled by a colluding and corrupt US government. Hedges stresses how the 8,000 number of prosecutions against protesters is “in stark contrast” to NOT ONE BANKER OR INVESTOR having gone to jail for the financial fraud the protests were inspired by.

Hedges writes:

McMillan’s case is as much about our right to nonviolent protest as it is about McMillan. It is about our right to carry out such protest without being subjected to police violence intended to crush peaceful and lawful dissent. It is about our right to engage in political organization without our groups being monitored and infiltrated by the security and surveillance state. It is about our right of free speech and free assembly, guaranteed under the Constitution but effectively stripped from us in a series of judicial rulings and through municipal ordinances that make it impossible to protest in many U.S. cities.

Dave Lindorff in “Occupy Activist Cecily McMillan Sentenced to 3 Months in Jail, 5 Years Probation”:

[Judge] Zwiebel agreed with the position of Manhattan District Attorney Cyrus Vance, Jr.’s prosecutor on this case that a sentence was needed to send a message to protesters, saying, in pronouncing his sentence, “A civilized society must not allow an assault to be permitted under the guise of civil disobedience.”

But McMillan’s supporters appear not to have learned that “lesson.” In a statement released by JusticeforCecily.com, they said: “We all know Cecily did not receive a fair trial, and this case will be fought in the Court of Appeals. The DA and the courts want to make an example of Cecily — to deter us, to scare us, to keep us out of the streets. And we won’t let that happen. This ruling will not deter us, it will strengthen our resolve.”

Sandy English in “Occupy Wall Street protester jailed for three months in case of police beating” has this to say about Cecily McMillan’s situation:

This is turning reality upside down. Not only did all the available evidence show that McMillan was only protecting herself from an act of brutality by a police officer, but, as the whole world knows, and as hundreds of photographs and hours of video footage show, it was the NYPD, and not Occupy Wall Street protesters, who were the perpetrators of violence after the protests began in September 2011. Scores of protesters were beaten, clubbed, and pepper-sprayed, and hundreds at a time were arrested.

Nevertheless, of the thousands arrested in the action, few were charged with felonies, and of those, many were allowed by the courts to plead guilty to minor offenses.

Cecily McMillan was the exception. She chose to go to trial because the office of the city’s Democratic Attorney General Cyrus Vance, Jr. was determined to mark her for life as a felon and would not allow her to plea to a lesser misdemeanor charge.

The prosecution succeeded in suppressing key evidence in the trail [sic], including Bovell’s record of violence toward other defendants, and the images of McMillan’s injuries. Instead, it relied on a single grainy video image that was posted on YouTube from an anonymous source.

Hedges gives some of the specifics on what enabled the prosecution to achieve a guilty verdict.

Judge Ronald A. Zweibel was caustic and hostile to McMillan and her defense team during the trial. He barred video evidence that would have helped her case.

He issued a gag order that forbade the defense lawyers, Martin Stolar and Rebecca Heinegg, to communicate with the press. And, astonishingly, he denied McMillan bail.

The judge also assiduously protected Bovell against challenges to his credibility. He refused to allow the jurors to hear about or see the excessive police violence that was used to clear the park the night McMillan was arrested—violence many activists say was the most indiscriminate and abusive ever inflicted during the Occupy movement.

He hid Bovell’s history of misconduct as a police officer from the jury. Bovell has been investigated at least twice by the internal affairs section of the New York City Police Department, the Guardian newspaper reported. Bovell and his police partner, in one of the cases, were sued for allegedly using an unmarked police car to strike a 17-year-old fleeing on a dirt bike. The teenager said his nose was broken, two teeth were knocked out and his forehead was lacerated. The case was settled out of court for a significant amount of money.

There is also a video that appears to show Bovell relentlessly kicking a suspect on the floor of a Bronx grocery. In addition, Bovell was involved in a ticket-fixing scandal in his Bronx precinct. And Austin Guest, 33, a Harvard University graduate who was arrested at Zuccotti Park on the night McMillan was assaulted, is suing Bovell and the NYPD because the officer allegedly intentionally banged his head on the internal stairs and seats of a bus that took him and other activists in for processing.

The judge barred the running down of the teenager on the dirt bike and Bovell’s alleged abuse of Guest from being discussed in front of the jury.

Jon Swaine in “Occupy Activist Cecily McMillan Sentenced to Three Months in Prison":

Wearing a fuschia dress, the New School graduate student was on Monday led, handcuffed, into a courtroom lined by about 50 police officers. Reading a prepared speech, she told the judge that she lived by the “law of love”. She said: “Violence is not permitted. This being the law that I live by, I can say with certainty that I am innocent of the crime I have been convicted of”. She apologised for what she called “this accident”.

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However, in a sharply critical statement to the judge, assistant district attorney Shanda Strain said that McMillan had “not only physically assaulted the police officer but also falsely accused this police officer’s character both inside and outside of this courtroom”.

Accusing McMillan of using the court as a “grandstand for her political opinions,” Strain baldly stated that the 25-year-old had committed perjury by accusing Bovell of grabbing her breast. “Through her lies, she has undermined the claims of genuine sexual assault victims who seek justice in this system,” she said. However, Strain said that a sentence of 90 days would be sufficient to “serve the interests of society”.

snip

During the month-long trial, prosecutor Erin Choi had ridiculed McMillan’s testimony that she had been injured and that she had suffered a seizure after being arrested. One of the jurors reportedly claimed, according to the account in the Guardian, in relation to McMillan’s claim that she had had breathing problems at another protest, “That’s her MO” (modus operandi).

Dave Lindorff, aforementioned:

McMillan’s attorney Martin Stolar, said he was “relieved” that her sentence was not two years, but also said that he had appealed the conviction to the state’s Court of Appeal.

Stolar earlier complained about Judge Zwiebel’s sending a woman with no prior convictions to sit in jail on Rikers Island for two weeks while awaiting her sentencing hearing, without even granting the possibility of her posting bail. It was a complaint that is likely to be also made about the judge’s action in sending her back to Rikers while her case is on appeal. This treatment stands in stark contrast to the way the New York courts typically handle cases involving Wall Street criminals convicted of felonies, who are routinely allowed to walk out of court after conviction and even after being sentenced to lengthy jail terms to live in freedom during the long months that their cases are on appeal.

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McMillan’s many supporters nonetheless hailed the short sentence, which could see her released in as little as 60 days, as a victory, one which many attributed to the massive outpouring of support she has received since her arrest, during her trial, and since especially since her conviction. That support has included a jailhouse visit by two members of Pussy Riot, who condemned her conviction and jailing, a letter of of support from the president of the New School, support from five members of the New York City Council (but so far not a word from New York City’s supposedly leftist and former activist Mayor Bill De Blasio), an online petition signed by over 167,000 people, and an unusual letter from nine of the 12 jurors in her case calling on the judge not to sentence her to any jail time.

Fred Mazelis in “Jurors urge no prison for convicted Occupy protester in New York” addresses the unusual response of nine out of the twelve jurors concerning Cecily’s sentencing:

Nine out of the twelve jurors who convicted 25-year-old Cecily McMillan this week in connection with a protest two years ago on the six-month anniversary of Occupy Wall Street have written a letter to the judge in the case asking that she not be given a prison sentence.

snip

Many of the jurors, however, now apparently feel that they were used. Their letter to Judge Ronald Zweibel, as quoted online, states, “We the jury petition the court for leniency in the sentencing of Cecily McMillan. We would ask the court to consider probation with community service. We also ask that you factor in your deliberation process that this request is coming from 9 of the 12 member jury.”

Mazelis goes on to call out the omission by prominent corporate media in reporting on such a newsworthy development as the letter from the jurors and the reactionary criminal abuse of the judicial system to protect the real criminality of the ruling class elite:

In this regard, the silence of all three major bourgeois newspapers in New York on the action of the majority of the jurors in the just-concluded trial is revealing. Neither the New York Times nor the Daily News has seen fit to report the jurors’ letter. Rupert Murdoch’s Post refers to it only in an editorial designed to besmirch the defendant and even the jurors who have belatedly expressed their concerns. “We’ll leave it to the judge to determine the appropriate penalty for someone who assaults a cop and then puts the city through an unnecessary trial,” snarls the Post.

snip

The prosecution of McMillan, brought by Manhattan District Attorney and prominent Democrat Cyrus Vance, Jr., is clearly meant to underscore the message of the police repression of two years ago. All the conditions that gave rise to the Occupy protests have worsened. The slump continues nearly six years after the financial collapse. The bankers and hedge fund managers flaunt their impunity as never before. The vindictive treatment of Cecily McMillan reflects the fear on the part of the ruling establishment that the next eruption will not be simply one of students and other protesters, but of broader sections of the working class itself.

Chris Hedges reveals that Cecily had been held at Rikers in the Rose M. Singer Center, Dorm 2, East 8, with about 40 other women. They sleep in rows of cots. McMillan has been giving lessons in English in exchange for lessons in Spanish. She was required to have a prison activity so she participates in the drug rehabilitation program though she did not use drugs.

Hedges mentions that she had been receiving 30 to 40 letters daily but the week before his interview with her she was told every day that she had none. Cecily suspects the prison decided to cut off the flow of letters supporting her.

Hedges also discloses that before his hour and a half visit with her his pens and paper were confiscated so afterwards he had to reconstruct their interview from memory.

Patrick Martin in “The criminalization of political opposition in America” puts Cecily McMillan’s challenge as a political dissenter in a wider context:

These frame-ups follow a pattern that has now become familiar, where individuals are targeted either because they are politically active or vulnerable to provocation, and prosecuted for actions that are either fabricated out of whole cloth, or would never have occurred in the absence of incitement by police agents.

Among the most prominent recent cases:

* The 2010 imprisonment of Lynne Stewart, the attorney who represented the blind sheik, Omar Abdul-Rahman, who was convicted of conspiring to bomb targets in New York City. Stewart was convicted on charges of carrying messages from her client to the public, in violation of prison regulations, and spent four years in prison before being released early this year, at age 74, facing impending death due to cancer.

* The September 2010 raids on homes and offices of members of the Twin Cities Antiwar Committee and the Freedom Road Socialist Organization in Minneapolis and Chicago, where one alleged “offense” was that some of those involved in the group had visited Colombia and occupied Palestine. The Obama administration justified the raids under the “material support for terrorism” provisions of the Patriot Act.

* The conviction and imprisonment in 2012 of five young men described as “anarchists” in Cleveland, under circumstances nearly identical to the NATO 3 case, for an alleged plot to bomb a highway bridge. The “plot” was devised by FBI agents using a confidential informant. The sting operation targeted people active in the Occupy Wall Street protests. It required six months to convince the five young men to agree to buy what they were told were explosives from undercover operatives, leading to the arrests. At least two of the arrested men were said to have mental problems. They were sentenced to between 6 and 11.5 years.

* The July 2012 FBI raids on the homes of anti-Wall Street protesters in Portland, Oregon and Seattle and Olympia, Washington. As in the 2010 raids, dozens of heavily armed federal agents smashed down doors and used stun grenades, pulling their victims from their beds at gunpoint, then seizing computers, literature, banners and other explicitly political materials. A warrant presented at one home cited the need to confiscate “anti-government or anarchist literature or material.”

The political significance of all these cases is that they were actions carried out by the Obama administration and had either the direct participation or the political blessing of the FBI, the Justice Department and other agencies of the federal government.

The examples given above are not merely isolated examples, but test cases for repressive measures that will be taken on a far wider scale in the event of a broader movement among working people against imperialist war and the ceaseless attacks on jobs and living standards at home.

snip

The National Defense Authorization Act (2012) expressly gives the US military the power to seize and imprison any person anywhere in the world, including within the US, on “terror” allegations—without charges, evidence, or trial. And as the revelations by Edward Snowden demonstrate, the US government is using its vast surveillance and data collection apparatus to create political dossiers of those individuals who would be targeted for such repression.

Finally, here is Cecily McMillan’s pre-sentencing statement found at http://justiceforcecily.com:

Your honor, I stand before you exhausted. I have spent 35 of the 42 months that I have been in New York City in this room trying to convince the court of my innocence. I have lost friends and family, school and work, and, most recently, my freedom. I have been exhausted of nearly everything that makes me, me, except, that is, my dignity.

As a young girl my mother told me, “Cecy, everything you see, your home, your loved ones, even your life, can be taken from you at will. But no one can strip you of your dignity without your consent.” I don’t think I knew what dignity was then, but I did understand that it was deliberate, something you had to define for yourself.

And though I am still young, and still searching for answers, I have started down a path where dignity is derived from the law of love, and though it has been said that this trial is personal and not political, I maintain that the personal cannot be divorced from the political.Whereas nonviolent civil disobedience is the manifestation of my ideology, it is rooted in a love ethic that is central to my identity.

The law of love holds that we, all of human society, live one common life, our existence beats with one common pulse – that as we listen to one another, learn from one another, love one another – we draw closer to one another and towards our collective happiness. Therefore – whether in resistance or in retribution, whether personal or political, violence is not permitted.

This being the law that I live by, I can say with certainty that I am innocent of the crime I have been convicted of. And as I stand before you today, I cannot confess to a crime I did not commit; I cannot do away with my dignity in hopes that you will return me my freedom.

However, the same law of love requires me to acknowledge the unintentional harm I caused another – for this accident, I am truly sorry. And in this spirit, your honor, I ask you to halt the violence there. Consider my words as I ask you to not perpetuate one injury with yet another.

[cross-posted on open salon]

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