Cecily McMillan’s Conviction Provides Helpful Primer on How the Criminal Justice System Is Totally F*cked

Cecily McMillan is an activist involved in the Occupy movement, but that probably isn’t how you’ve heard of her. More likely you’re familiar with her name because today she was found guilty of assaulting a police officer. The NYPD claims that McMillan intentionally elbowed Officer Grantley Bovell in the face on St. Patrick’s Day 2012. McMillan and her defense claim that McMillan elbowed someone behind her without knowing who they were in an attempt to stop them from groping her breast. It appears that the jury eventually came to believe the NYPD’s narrative.

McMillan’s conviction occurs against a complex backdrop of factors: a criminal justice system that has consistently proven itself to be flawed in its considerations of women defending themselves from men (just ask CeCe McDonald and Marissa Alexander); a type of police brutality that has been particular to the Occupy protest in some ways but certainly did not begin with it; the persistent looming specter of rape culture. The deeply embedded cultural narratives that make McMillan’s shocking conviction possible are complicated, and they’re strong enough that to many, her conviction isn’t really shocking at all. McMillan had photographic proof of bruising on her breast, and her history as an activist who specifically promotes nonviolent tactics makes her unlikely to assault a police officer. None of that mattered, though. Much about this case is confusing, but one thing is clear: The stories that our culture tells itself about violence, justice and women were ultimately more convincing to the jury than the actual evidence.

Cecily McMillan outside court

The history of the NYPD’s violence against civilians is a long one, and McMillan’s trial is only one recent data point. The longstanding “Stop and Frisk” policy is a good primer on why McMillan faced an uphill battle: The legal system has been supportive of police’s right to invasively access civilian’s bodies for quite some time and hasn’t required any real rationale for doing so. Occupy Wall Street brought the issue of police brutality into the national news; while black and brown people in NYC had long experienced violence at the hands of the police, Occupy provided photos and video of violence committed against unarmed young white people, which provoked much more mainstream outrage. An independent investigation by four law clinics found that “the NYPD abused Occupy Wall Street protesters and violated their rights on numerous occasions,” and explained their findings in a report called “Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street.” Assistant district attorney Erin Choi, who prosecuted McMillan in court, told the jury that McMillan’s account of events with Bovell was “so utterly ridiculous and unbelievable that she might as well have said that aliens came down that night and assaulted her.” Given the long history of brutality and violation by the NYPD, and given the violence experienced during Occupy — “Supressing Protest” notes a number of specific incidents ranging from “judo-flipping” people with cameras out to throwing protestors into the air to choke-slamming protestors into cars — Choi’s argument seems at best naive and at worst an attempt to gaslight McMillan and the public into believing that the evidence of police brutality simply doesn’t exist.

Even more disturbing than that one outrageous comment by Choi were the parameters for what evidence was presented to the jury at all. Molly Knefel at the Guardian points out that the jury was specifically denied critical contextual information, and testimony of NYPD officers was privileged over physical evidence of the incident:

…the jury didn’t hear anything about the police violence that took place in Zuccotti Park that night. They didn’t hear about what happened there on November 15, 2011, when the park was first cleared. The violence experienced by Occupy protesters throughout its entirety was excluded from the courtroom. …Judge Ronald Zweibel consistently ruled that any larger context of what was happening around McMillan at the time of the arrest (let alone Bovell’s own history of violence) was irrelevant to the scope of the trial. …Despite photographs of her bruised body, including her right breast, the prosecution cast doubt upon McMillan’s allegations of being injured by the police – all while Officer Bovell repeatedly identified the wrong eye when testifying as to how McMillan injured him.

Although it’s any attorney’s job to try to emphasize the evidence that supports their client’s story and detract from the evidence that doesn’t, what happened in the courtroom during McMillan’s trial is a microcosmic representation of a persistent social reality: the ways in which cultural patterns of violence, especially against marginalized people, are made invisible and instead presented as isolated interpersonal events. In this way, campus sexual assault is downgraded from a national epidemic to an unfortunate misunderstanding between college kids. Violence against trans women is figured as a single transphobic individual, not a widespread and deadly problem. By removing the larger context of McMillan’s assault from the courtroom — like, for instance, the fact that Bovell has a history of violence and misconduct with the NYPD — the prosecution effectively denies that McMillan’s assault is part of a systemic problem and denies jurors the opportunity to come to that conclusion.


McMillan’s conviction is about more than just denying the existence of systemic violence, however — it’s about the legal phenomenon of punishing the people who suffer it and specifically of punishing women. In recent years, we’ve seen women who have defended themselves against violence in some way punished by the courts while their attackers receive little or no punishment. CeCe McDonald was the victim of an enraged attacker, but she ended up behind bars, not any of her attackers. Famously, under the same law which did not convict George Zimmerman for the death of Trayvon Martin, Marissa Alexander was sent to prison for firing a shot that hurt no one in an attempt to scare away her abusive partner. McMillan’s conviction fits with a cultural narrative that insists the violence that’s perpetrated against women isn’t a problem, but a woman who defends herself from it is. Of course, this concept also ties in neatly with the narratives perpetuated by rape culture: specifically, that it’s much more likely for a woman to lie about being assaulted than it is that her assault was real. Par for the course, Choi’s comments in court read like a page out of Victim-Blaming for Dummies. From Anna Merlan at the Village Voice:

Choi called McMillan’s claim that Bovell had grabbed her “absolutely offensive” and “physically impossible,” and said it was “absurd how nonsensical that story is.” If McMillan was truly grabbed, Choi said, the young woman would have reported it right away. She pointed out that she spoke to a social worker and a psychiatrist in the hospital after she was arrested, and didn’t mention the incident to either of them.

In McMillan’s trial, we have the opportunity to see not just what misogyny, victim-blaming and apologism look like in action; we get to see how they prop up larger systems of oppression and violence. In her argument, Choi is relying upon a belief that she trusts the jury to already have, or at least be familiar with: “Real” survivors of sexual assault divulge all the details about it immediately to the proper authorities and take all possible opportunities to pursue legal action. If they don’t, it means they’re lying. This idea, of course, ignores key facts, like the fact that McMillan’s assault was committed by one of the “proper authorities” and that McMillan had just seen more than enough police violence go unchecked to know that reporting would likely be futile. The useful myth of the Lying Woman allowed Choi to effectively direct attention away from the independently proven phenomenon of rampant police violence, and back to the level of the individual. When it’s employed deftly, this kind of invocation of rape culture’s ideology can totally obscure any awareness of systemic oppression that a person might have been drawing close to.

One important thing to note is that Cecily McMillan is white-appearing (she’s multiracial), something which has likely radically affected how her story has turned out. Although McMillan’s assault is appalling and inexcusable — as is the court’s ignoring it and convicting her of assault — it’s also something that happens much, much more often to women of color and doesn’t generally receive the outcry that McMillan’s story has. It would be a mistake to look at McMillan’s story as an isolated incident or even just an incident in the context of Occupy and its attendant police brutality; it’s important to remember that this has been happening for long before Occupy and that it has mostly happened to people of color. Even if we couldn’t stop McMillan’s conviction, we can use the visibility from it to support the people of color most often targeted by police violence. We can refuse to bend to the pressure to put on blinders and instead turn floodlights on the whole system.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

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  1. this is so sad and infuriating. This is the first i’m learning of Cecily McMillan, I have a bunch of questions though, can she appeal the verdict? Does she have to do time if she does how long? The withholding of the violence that happened during the movement should have been included hopefully her lawyers can argue for her during the appeal

    • She can appeal, and last I heard she was planning to do so.

      The conviction is for a felony and she could get up to seven years.

  2. Been following this story — so pissed at the way it turned out.

    You know, I’ve been one among my friends to defend cops, saying that there are a few bad apples but the majority do their job well, but the system is so fundamentally fucked that there’s no way I can do that any more.

    • It really isn’t “a few bad apples” in most of the departments that I’ve interacted with (I’m a protest medic, as you may be able to see from my profile photo) and it’s definitely not that in NYC. Violence against protesters in NYC came from the top. Everyone knew that it was the “whiteshirts” (the cops who were lieutenant or above) that were generally the most vicious and that the rank-and-file cops usually followed the lead of their supervising whiteshirt. Deputy Inspector Winski, who was the precinct commander for the Wall Street area at the time of the incident for which McMillan was on trial, is one of the meanest, most vicious human beings that I have ever met. He’s someone who chucks medics down the stairs and slams people face first into brick walls for running on the sidewalk. I almost got arrested by him once because my medic partner and I were trying to stay with a guy who was having a seizure. Now that there are new people in charge the cops seem to be easing off protesters a bit.

      This wasn’t meant to be jumping down your throat or anything, I just want to poke at the “few bad apples” narrative. The only place where I’ve really seen the “individual rogue cops” threat model is DC, and I suspect that only applies to protesters (since DC is so used to dealing with them) rather than, say, homeless people.

      • No, it’s ok, I definitely have seen that there’s more shit coming from the top, and that the cop and prison system is one of systemic oppression and violence. Took me a while to get enough knowledge to understand that perspective instead of the “cops are selfless heroes” narrative.

  3. This whole story is nauseating, but you wrote it so well, Yvonne. Thank you for covering this.

  4. Watch the video: https://www.youtube.com/watch?v=devvY1cCVFE

    Ms. McMillan, who admitted to having just come from drinking, clearly walks up to the officer, puts her elbow to her side, bends her knees, and then raises her legs and throws her elbow directly into his face, HARD. She absolutely did it deliberately. The jury of 8 women and 4 men dismissed her claim about being groped as bullshit.

    • Lmao “clearly”, you can’t see anything in that video except blurry shapes. Isn’t it interesting though, how you registered an hour ago and have only posted one comment on this website?

    • Walks up? He’s behind her.

      I guess she got the handprint-shaped bruise on her boob by magic.

      If someone grabbed my boob from behind in a park – for that matter, even if they just grabbed me from behind and I didn’t know who they were – I might also bend my knees and throw my elbow hard.

    • There is nothing clear about this video, not even in the zoomed version of this video. Impossible to tell what happened.

  5. Cecily is scheduled to be sentenced on May 19th. She faces 2-7 years in prison! Judge Zweibel has the ability to depart from that and give her a sentence that doesn’t include prison time, but it would be out of character for him to do such a thing considering his behavior during the trial. Once she has been sentenced her lawyers can and intend to appeal. There were many violations of Cecily’s rights that took place during the trial that can be the basis for appeals. In the meantime write Cecily letters of support at:

    Cecily McMillan
    Book & Case Number 3101400431
    Rose M. Singer Center
    19-19 Hazen Street
    East Elmhurst, New York 11370

      • I am not a lawyer but this is what Cecily’s legal team said to supporters. I was in court throughout the trial and can say that as though I am not a legal expert that that did seem to be the case. I personally was in court and saw the judge act in a manner that appeared to be very biased. At one point early on during court preceding, while the jury was out of the room, Judge Zweibel told the defense counsel that his client clearly did it. About a 1/2 dozen videos that showed various angels were not allowed into evidence. At least two defense character witnesses were sent home because their testimony which was not heard in court, was deemed by the judge to be cumulative. Details about the officer’s history of violence (i.e. having broken his foot kicking a prone defendant in the face, throwing another protester down some steps etc.) was not allowed into court. Details about a case in which Cecily was detained from last Dec. related to an allegation of fair evasion (not paying for the subway) on the part of someone else was heard by the jury. It was a rare moment when an objection made by the prosecution was not sustained by the judge or when one made by the defense was not overruled.

      • If you google Judge Zweibel, you’ll find evidence that he has a reputation for favoring the prosecution over defendants as well as harsh treatment of defendants. Other reports by people who were in the courtroom testify to Judge Zweibel’s refusal to allow testimony concerning Officer Bovell’s history of violence towards suspects, and testimony of other protesters who witnessed McMillan’s treatment by him on the might of her arrest. The fact that relevant testimony was not allowed and the excoriation of McMillan as a Lying Woman means, simply, that she could not get a fair trial. And without relevant testimony, the jury could not make an informed decision.

  6. I am incredibly glad to see this case covered on Autostraddle. As a protest medic it means a lot to me when people outside our bubble notice this stuff.

    I want to make a slight correction. Cecily McMillan is multiracial – she has a white father and a Mexican-American mother. She’s a multiracial woman from a poor family in rural Texas ( http://truth-out.org/opinion/item/23355-the-crime-of-peaceful-protest ). I don’t like that so many people are erasing her identity with the people-only-care-cause-she’s-a-privileged-white-woman narrative. I don’t want to diminish the light-skin privilege that she experiences as a relatively light multiracial woman, but I also don’t want people claiming that she’s something that she’s not.

    Furthermore, there were a lot of POC at OWS (as in, the NYC site, not the whole movement). Literally half the medics of color that I know were at OWS. Unsurprisingly, the protesters of color often got targeted by police! And then they get to listen periodically to people setting up a false “white protesters/regular people of color” dichotomy. Michael Premo, the OWS organizer who was acquitted fairly recently of assaulting an officer when video showed unambiguously that the charges were nonsense, is a person of color. Shawn Carrie, the OWSer who was beaten and then tortured in the hospital by the NYPD, is a person of color. Messiah Hameed, the then-16-year-old OWSer who was carried through the street for four blocks by the NYPD with her shirt ripped off, is a person of color. WE were showing videos and photos of these incidents and trying to get some public outrage going, even if the rest of the public only just now suddenly noticed that there was something to be outraged about.

    • Hmm, I spent too much time in that comment complaining about my pet peeves around protesters and intersectionality, and not enough with the rest of this piece.

      You are dead on about the rape culture aspects. The prosecution seemed to expect her to report immediately to, or in front of, the colleagues of the people who groped her. I really hope that Erin Choi doesn’t prosecute sexual assault cases.

      The prosecution also didn’t seem to get PTSD in the slightest (or were being willfully ignorant about it). They portrayed her memory loss as lying when anyone who knows anything at all about PTSD knows that it’s a very common symptom. They were, in general, quite vicious, putting a lot of effort into claiming that she faked her own seizure.

      Here (content note: sexual assault) is more info about the sexual violence that was happening on the night that McMillan was attacked, and that also links to a video of a medic (a person of color, as it happens) whose head was used by police to break a window: http://truth-out.org/news/item/8912-new-police-strategy-in-new-york-sexual-assault-against-peaceful-protestors

      I want to clarify my last comment a little to emphasize that white privilege is a real thing, and that it’s also a real thing in the context of protests – informal surveys at OWS have found that black and brown protesters are 4-5x more likely to be arrested than their white colleagues. I’ve seen this in action, like at last year’s May Day in NYC, where men of color and people in masks were the two groups being targeted at the anticapitalist march. And look at the NYPD response to the Kimani Gray protests (which were primarily black people) last year. Or the Chicago PD’s arrests, aided and abetted by march marshals, of young Latino undocumented activists, at this year’s May Day. Or the Albuquerque PD response to the recent anti-police-brutality protests there.

      • thank you for your insight on all this, Jessie! i will make the correction about McMillan’s ethnicity immediately. this context about OWS and about the experiences of people of color at protests is really helpful and important, thank you for sharing it!

  7. An exceptionally well-written article, about McMillan’s sham trial and our culture of violence against women and minorities.

    I’m not sure that McMillan’s multiracial-ness played into her trial, though. I haven’t heard or read anything about this anywhere else, and didn’t know that she was multiracial until I read a comment on an article in the Nation.

    I doubt that the (black) cop who mauled her breast and then beat her up after he wrestled her to the ground, knew it either. As you point out, Officer Bovell has a well-documented history of brutality towards suspects, documentation that Judge Zweibel refused to allow into evidence. Another OWS protester (a guy) is suing the NYPD over his deliberate violent treatment by the same cop.

    I think there was something much more nefarious going on. Who was behind the DA’s decision to throw the book at McMillan? Who chose Erin Choi to handle the case? Who made sure that a judge who is known to treat defendants harshly and unfairly would preside over her trial? Someone high up in the NYPD?

    Why did her trial go on for four weeks when testimony re Bovell and other protestors was not allowed? What on earth did they have to talk about in court for 20 days? And why did the jury take only 3+ hours to return a verdict?

    McMillan should not only appeal, but sue the NYPD and the city, if that’s possible, for her treatment.

    Beyond that, dissent and peaceful protest has been discouraged if not quashed, in New York City and nationwide since 9/11. It was bad under Dubya and has become worse under Obama, and mayors of major cities have agreed to treat, prosecute and punish protestors more severely.

    Even though we may never get the answers to these questions, Mayor DeBlasio should be urged to investigate McMillan’s prosecution. If Police Commissioner Bratton wants to change public opinion of the NYPD, then he should be glad to comply. His recent request for New Yorkers to post photos of NYPD policemen revealed that the public has a (justifiably) negative view of NY cops. But we must protest McMillan’s treatment long and loud in order to turn this travesty of justice around.

    • The major source for her multiracialness is the Chris Hedges profile of her on TruthOut that goes into her background quite extensively. I know that Hedges is a problematic jerk, but the article had a lot of interesting info that I didn’t see anywhere else. I’m the one who first brought up the multiracialness here – the OP originally labeled her as white – and I did so because I think people’s full identities should be respected, not because I think it played much of a role in her trial (possibly not any, if it didn’t come up). Her background has a lot to do with why she’s an activist, after all.

      I’d be willing to believe that there was a conspiracy, but I think it’s more likely that it was simpler. The DA was trying to get in good with the NYPD because he’s been struggling politically, and the NYPD wanted the book thrown at her. Other ADAs would likely have been as bad as Choi. I don’t know how judges are assigned in NYC, so I can’t comment on that.

      I followed the trial closely, albeit via livetweeting rather than in person (since I don’t live in NYC). One of the reasons that the trial took four weeks was that for various reasons, including Passover and the judge having other trials to attend to, it was only in going on about three days a week and sometimes started late or let out early, and there were always long lunch breaks. As to what they talked about, the prosecution spent what was to me a rather startling amount of time trying to claim that McMillan’s injuries were faked (they were quite cruel about it too). They also had three different cops (the cop who grabbed her, that cop’s supervising officer, and the official arresting officer) testifying. The defense had three or four character witnesses, a photography expert, and McMillan herself. There were a lot of arguments, some of which went on a long time, about what should be admitted into evidence (nearly all of which resulting in the judge ruling for the prosecution). There’s no big mystery why the trial took a long time.

      Agreed that we should protest her treatment.

      • Cecily’s ethnic identity was something that came up in court, especially the fact that she identifies as Irish but also that she identifies as a Latina.

        Four police officers (including now retired police officer Lisa Waring) took the stand for the prosecution.

        • Thanks for the info. The livetweeting got spotty at times, given that they could mostly only tweet when they left the courtroom.

      • Jessie, I appreciate your posting here about McMillan’s being multiracial. I hadn’t known that, not having read Chris Hedges investigative profile of her, and wouldn’t have guessed it from the photos of her. I have read ot now, and agree that her background was absolutely instrumental in her becoming an activist.

        I didn’t mean to suggest there was a conspiracy, but I do believe that the NYPD leaned hard on the DA to prosecute her ruthlessly, maybe in return for a favor the DA owed the NYPD. As for choosing a judge who has a reputation for harsh treatment of defendants, that was probably easily arranged.

        A specific number of days is normally set aside for a criminal trial. Although the judge may have been called away from time to time to render decisions on other cases, you say that McMillan’s trial often started late and let out early, and you describe Erin Choi’s excoriation of McMillan as taking up a “startling amount of time” and as “cruel.” All this leads me to conclude that there was an effort to unnecessarily prolong for McMillan the agony of these proceedings after the abuse already heaped on her by the NYPD. The scheduling of the trial beforehand would normally take into account any holidays or religious observances.

        To digress for a moment, I would never refer to Chris Hedges as a “problematic jerk.” You may not agree with his position on certain issues–I don’t know–but he is a man of great integrity. He was an investigative reporter for the NY Times (in Bosnia, the Middle East, as well as other places) for some 25 years. He has always sought the truth and continues to seek it as the founding writer of TruthDig. He has the courage to act on his convictions and speak truth to power, which is rare in our time.

  8. I agree that there are systemic issues at play here, i.e., rape culture, but it doesn’t surprise me that the evidence of the cop’s other alleged misconduct didn’t come in. That typically isn’t admissible.

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