Just over two years ago, Cecily McMillan was beaten and arrested during a police raid at Liberty Plaza on the evening of Occupy Wall Street's six-month anniversary. Her injuries were so severe that she suffered a broken rib and had a seizure while in handcuffs... a seizure that police just stood and watched, refusing her access to medical care until finally EMTs arriving on the scene forced their way to her side, began treatment and were able to take her to the hospital. In a just world, you would think the case being tried in Manhattan's criminal court system would see her as the witness and her attacker as the defendant, but instead Ms. McMillan, 25, is on trial for felony assault of a police officer and her attacker, Officer Grantley Bovell, was on the stand as witness to the assault he alleges was perpetrated against him, not the assault he committed.
In court today, Bovell's past bad acts were finally presented to a jury - the first time any of these allegations have seen the inside of a criminal courtroom, despite his admission on Wednesday that his participation in a ticket-fixing scheme was in fact a criminal act. The defense's counsel, Martin Stolar, raised an allegation from 2010 in which a Bronx teen, Reginald Wakefield, claimed that Bovell and his partner ran him down with their patrol car while he was on his dirtbike and sent him flying head-first into a streetlamp. Despite the fact that Wakefield later sued and won his civil case against Bovell and several other officers to the tune of $85,000, no criminal charges were ever filed against any of the officers. An NYPD Internal Affairs audit of the incident did find wrongdoing on Bovell's part and docked him a few vacation days, but only for failing to radio back to police dispatchers that they were in pursuit of a suspect - their investigation cleared him of any wrongdoing, chalking Wakefield’s injuries up as an accident rather than due to intentional malfeasance or wrongdoing on the part of any officer, alleging that Wakefield hit a stopped police vehicle rather than that he was hit by a moving police vehicle.
Another case involving unnecessary and gratuitous use of force from Bovell's checkered history was also raised by the defense; after learning that Officer Bovell was on paid leave for ten days after being treated for a cut under his left eye, Stolar inquired into any other paid leaves Bovell may have had after suffering an injury in the line of duty. This case from 2009 was captured on video surveillance at a Bronx bodega, the video of which is alleged to show Bovell kicking a man in the face while he is on the floor. That victim of excessive force was alleged by the NYPD to have been armed with a knife, thus claiming that the use of force was necessary and unavoidable as they subdued him for arrest, but the kick to the face was never explained or justified - simply denied. This kick that "never happened," as far as the courts were concerned, nevertheless broke teeth and resulted in a documented injury... but the court did not allow much discussion into the incident, as a substantiated allegation had not been proven and discussion would be seen as prejudicial. The defense attorneys struggled mightily to find a question Bovell could be asked and actually answer against a wave of "Objection," "Sustained!" from the prosecutor and judge in the case, until it could finally be revealed that Bovell was alleged to have kicked the man (not where, or when he was on the ground, or that it broke teeth, or that there was video) and could be asked just how it was during the struggle that the assailant attacked Bovell and broke his foot. If that was how Bovell broke his foot, after all, surely that would have been documented by a charge similar to the one McMillan faced against that defendant... right?
Stolar was visibly frustrated as every line of questioning was cut off, and one had to think he was exercising the deepest of restraint by not getting one last parting shot asked (and obviously objected to): "So, did you break your foot off in his ass?" Those sorts of questions only happen on TV, after all; in reality, defense counsels must exercise careful control over the perception that they are fair and dignified, even as they are asking police officers why the reported injury changed from a bruise to a cut and from the right side of his face to the left side between his Grand Jury testimony and his testimony in court today. Only on TV is the question raised, “So which is it: were you lying under oath then, or are you lying under oath now?” Those unheard questions must be asked and answered only in the minds of the jury, for it is not Officer Bovell who is on trial today but the woman whom he grievously injured that stands accused of assault.
And the nature of that assault is damning, a mark of shame upon the NYPD that is unfortunately far from unique. McMillan and Stolar allege that while the "thrown elbow" that resulted in Bovell's injury was real, it was an accident rather than an assault - and the immediate result of McMillan's being subjected to sexualized violence from the NYPD. The defense concedes the incident occurred but alleges that the elbow was thrown in self-defense (and at an unknown assailant, not a police officer) after Bovell grabbed her by the breast from behind. This allegation sounds hard to believe on the face of things, but is far from the only such allegation levied by female protestors at Occupy Wall Street - several other such allegations have been documented by the protestors, some of whom believe the police are levying this tactic of targeting and attacking women in order to provoke a violent response from their target or anyone who may come to their defense in order to make arrests off of the response without the incident that provoked it ever recognized as facts in evidence. One such incident was documented photographically at Union Square on May Day 2012 but has been lost in the tidal wave of information that went out that day, while several other incidents are alleged to have happened at Liberty Plaza or at Trinity Church, site of the Occupy "sleepful protest" that lasted for over a year at the foot of Wall Street.
McMillan's injury was documented and resulted in a disturbingly hand-shaped bruise, and the defense claims that the thrown elbow was her natural - even instinctive - response, an act of self-defense that resulted in Bovell's claimed injury. Bovell alleges that the sexual assault on her person did not occur, testifying instead that McMillan was walking as she was being led, then began calling out to citizen journalists with their livestream cameras "Are you filming this? Are you filming this?" so that her next action was not caught on camera. Bovell attests that she then sprung down to the ground and back up at his face with her elbow flying, that there was no chance this could have been an accident, that he was intentionally attacked and assaulted. Stolar's questioning of Bovell honed in on one simple fact to showcase the possibility that McMillan's elbow may have been thrown accidentally rather than with the intent to cause injury:
As far as Officer Bovell is concerned, when something bad happens around him to someone else, then it's an accident - but when something bad happens to him, it's felony assault of a police officer no matter the circumstances surrounding the case. His broken foot was clearly the defendant's fault - he broke it with his teeth - while the juvenile he and his partner chased and may very well have hit with their car wasn't assault (on their part) or even claimed to be an accident (which we might very well believe, if that was the allegation) - instead, the injured party received his head wound and broken teeth when he ran his dirt bike into their parked police cruiser. A police cruiser that would have been behind him - remember who was chasing whom, after all.
The charge against McMillan requires the prosecution to prove (beyond a reasonable doubt) that McMillan acted with intent. That the alleged elbow was thrown is not being contested, but whether it was assault or self-defense is what is on trial - was McMillan defending herself against a perceived attack or was she, an avowed pacifist who was a firm advocate of non-violent resistance in her time at Occupy Wall Street, intending to injure her arresting officer and calling for citizen journalists to turn off their cameras so that she could get away with it?
The case is far from over, but Stolar made huge strides forward today in proving that Bovell is not a credible witness and that the violence McMillan attests she was subjected to is not an isolated incident in his history with the NYPD. While many of Stolar's efforts to display that Bovell and the prosecution's stories changed drastically over time since the night of McMillan's arrest were stymied by a wall of "Objection," "Sustained!" by the presiding judge, hopefully no one on the predominantly-female jury could help but notice that Bovell's memory for events improved drastically once it was the prosecution asking the questions rather than the defense. Stolar couldn't get Bovell to admit that a conversation he had with a police detective the morning after McMillan's arrest even occurred, despite a sworn affidavit by the detective, much less get its contents read into the public record via questioning - but when the prosecution asked if Bovell remembered when McMillan's arrest occurred down to a five-minute window, he answered "Exactly."
That McMillan is the one on trial - facing up to seven years in jail and life as a convicted felon - instead of the officer who beat her into a seizure and left her handcuffed on the ground, that in and of itself is a travesty of justice. Bovell admitted in court on Wednesday that the ticket-fixing scheme he participated in and was sanctioned by Internal Affairs punishment over was a criminal act, and it was left unsaid that his leaving McMillan in handcuffs without calling for an ambulance was itself a criminal dereliction of duty; that the EMTs who treated McMillan were called by civilians, not the NYPD, escalates Bovell’s actions to clear gross misconduct, and for the second time in as many days the prosecution’s star witness has admitted to criminal acts in court: even if he believed her seizure was ‘faked,’ his duty requires that he call for treatment, not watch and then ignore it.
But the most terrifying aspect of all is that the NYPD's recent history of sexual violence against women to provoke a defensive response and incite a confrontation with peaceful political protestors is not even up for discussion - this allegation is being treated as an isolated incident rather than as part of a larger pattern. That the NYPD's response to Occupy Wall Street included using force and sexual violence against women in a campaign of political repression should be screamed from the rooftops, not buried under a wall of objections sustained by a judge.