Granted, the story about Occupy Wall Street protester Cecily McMillan’s trial is told through colored glasses, but no lawyer who tries criminal cases can’t empathize with how the lid gets clamped on the defense’s efforts while the prosecution is given free rein to engage in wild, rampant speculation. We have a description about trial judges, that they give a good trial, which means that they let us try our case without interfering. It’s the best we can hope for.
The flip side of a good trial is one where the prosecution’s absence of evidence becomes an excuse to allow the introduction of wild, baseless speculation to fill the gap where facts are supposed to be. The less evidence, the greater the latitude provided the prosecution. It’s crazy, but that’s how it works. If the same rules that applied to real evidence were applied to the absence of evidence, the prosecution would never be able to convict. For some reason, the idea that the absence of evidence reflects the possibility that the defendant isn’t guilty eludes some judges.
In a fair trial, the jury must consider two full texts and answer a reading comprehension question: In this case, is there any reasonable doubt that McMillan intentionally assaulted a police officer for the purpose of preventing him from performing his duties? But when the jury convicted McMillan on May 5, they had really been given only one side of the story.
There was video, but only snippets were admitted. The defense sought to get it all in under the argument that it provided the context for the snippet the prosecution sought to use. Done properly, “Mary Poppins [can be] recut as a horror film.” Yet, the mere incantation of the word “background” allows the prosecution to offer immaterial, unreliable evidence (“but not for the truth of the matter, your honor,” as if the jury could possibly make that distinction) at great and dramatic length.
Throughout the trial, the courtroom rang out with objections, but the judge’s rulings fell overwhelmingly in favor of the prosecution. [justice Ronald] Zweibel sustained so many of the prosecution’s objections that several times he said “sustained” before Assistant District Attorney Erin Choi could even say the word “objection”. Some courtroom onlookers began placing bets on how many “sustains” for the prosecution Zweibel would pronounce.
The lawyerly reaction would be that each objection gets ruled on its merits. Quantity of “sustained” could reflect bias, or just objectionable questions, rinse, repeat. But other descriptions of proceedings tend to make this apologia less tenable.
McMillan’s character and history were not only scrutinized but mocked. When defense witness Yoni Miller described McMillan’s reputation in Occupy forums as “queen of nonviolence,” ADA Choi cried, “She is a fraud!” When Miller described seeing McMillan convulsing unaided on the pavement, Choi flailed her arms and hips in an exaggerated, ridiculous fashion, archly asking if her imitation of a seizure resembled McMillan’s.
Certainly a very dramatic description, but if it’s even a fraction of what actually happened, it’s very wrong.
While the prosecution took copious liberties in their depiction of McMillan, any attempt by the defense to question Bovell’s testimony or bring up his record was quickly shut down by Choi and Zweibel. Although Bovell’s involvement in the Bronx ticket-fixing scandal was discussed, the defense was prevented from addressing other, violent parts of his record. In 2010, he was involved in a lawsuit against the NYPD for his participation in an incident in which NYPD officers ran off the road a teenage boy on a dirt bike. In 2009, he kicked in the face a suspect lying on the ground. He allegedly assaulted Occupy protester Austin Guest on the same day as McMillan’s arrest. These episodes were not permitted to be entered into evidence.
According to the article, the defense proffered witnesses to the assault, which the judge waved off.
When Stolar explained to Zweibel that he had two eyewitnesses (uninvolved in the pending lawsuit against Bovell) who saw Guest be lifted up by Bovell and a second officer and slammed head-first into each row of seats on the bus used to transport prisoners to court, the judge exclaimed, “He must have been resisting!” and called the allegations hearsay.
If my head was about to be slammed into rows of bus seats, I would resist too, but the one thing it’s not is hearsay. The other thing it’s not is irrelevant, as the credibility of a witness for the prosecution is always relevant.
Not having been present at the trial, and the Katheryn Funkhouser article for the Nation being a bit longer on adjectives than nouns, it’s wide open to criticism and challenge about whether it’s sufficiently accurate (or excessively “passionate”) to provide a reliable view of McMillan’s trial. Regardless, there are too many descriptions that strike too close to home for trial lawyers to ignore. Whether all of this really happened or not, we’ve experienced this trial. It’s a travesty.
What makes this particularly curious, though, is that one person on twitter described this trial as “infuriating,” demonstrating yet another problem with the impact of personal prejudice and facile myopia. The crimes and criminals you favor deserve fairness. The crimes and criminals you hate deserve to rot in hell.
This isn’t just hypocrisy, or intellectual dishonesty, but an appeal to blind, angry, passion designed to undermine fundamental fairness. And that’s why it demands our attention. The viability of the system cannot be based upon which defendants an angry interest group hates the most. They can’t see it. The rest of us must.