Manhattan defense attorney Martin Stolar, top center, speaks to the media following the sentencing of his client, Cecily McMillan, inset. (NYLJ/Andrew Keshner)
An Occupy Wall Street protester has received a three-month jail sentence after being convicted by a jury of assaulting a police officer in the final case of more than 2,600 arrests linked to the mass protests in Manhattan.
Cecily McMillan faced a seven-year statutory maximum for second-degree assault, a D felony. The sentence she received included time served since she was jailed after the May 5 guilty verdict and five years probation.
McMillan, a 25-year-old graduate student and labor organizer, maintains her innocence and is appealing.
Her supporters asserted that McMillan’s charges exemplified rough police tactics and flaws in the criminal justice system. They circulated petitions and held rallies, generating widespread media attention.
When Manhattan Supreme Court Justice Ronald Zweibel (See Profile) imposed sentence, he told McMillan—and a packed courtroom ringed with about 50 court officers there to keep order—that “civilized society” could not tolerate attacks on police officers “under the guise of civil disobedience.”
Manhattan prosecutors had pressed for the 90-day sentence and five-year probation term, saying McMillan had rejected a plea deal for a lesser offense and attempted to turn the case into “a referendum on a large social cause or movement.” McMillan wanted to seen as a “martyr,” they argued.
Assistant District Attorney Shanda Strain said McMillan assaulted Officer Grantley Bovell in March 2012 and then “attack[ed]” his character by “ fabricat[ing]” the story that he grabbed her breast.
Strain acknowledged the arrest occurred in a “highly volatile situation” and Bovell’s elbow to the face was non-life threatening.
The prosecutor noted McMillan was rearrested in December 2013 and charged with second-degree obstruction of government administration for allegedly trying to prevent officers from issuing a summons, physically interfering with them and falsely claiming she was lawyer.
She said that the second incident reflected the “utter contempt for the police” that McMillan showed during her trial.
McMillan’s defense lawyer, Martin Stolar of Manhattan, urged a non-jail sentence and denied the trial had become a “platform” for McMillan’s politics. Mention of Occupy Wall Street added “context and background” to the case, he said.
Stolar asked Zweibel to take into account what he said was public support for a light sentence.
He pointed to letters urging leniency submitted by nine of the 12 jurors who convicted McMillan. He also noted a letter from the president and provost of The New School, where McMillan studied.
McMillan told Zweibel she adhered to “non-violent civil disobedience” and said the trial may have been about her personally, but “the personal is inseparable from the political.”
McMillan said she was innocent, but apologized to Bovell for any “unintentional harm.” She previously testified she did not recall elbowing him.
Supporters sang “We Shall Not Be Moved” as they left the courtroom, despite calls for quiet from officers.
Overall, there were 2,644 arrests linked to the protests beginning on Sept. 17, 2011. Many of the individuals were charged with disorderly conduct violations or misdemeanor obstruction of governmental administration.
More than half of the cases—1,382—resulted in adjournments in contemplation of dismissal. The district attorney’s office declined to prosecute 202 cases prior to arraignment and dismissed another 489 after arraignment.
Meanwhile, 354 defendants pleaded guilty and 56 were convicted at trial. Eleven were acquitted.
About two dozen defendants received jail time for conduct during the protests.
McMillan was one of seven individuals charged with assaulting a police officer. Of the other six, one was acquitted of the charge, but convicted on obstruction of governmental administration. Two pleaded to the assault charge and three pleaded to lesser charges.
The district attorney’s office dedicated prosecutors to handle Occupy cases. At its height, four were assigned to the task.
In a statement, Erin Duggan Kramer, deputy chief of staff for the district attorney’s office said it “will always uphold the right to freedom of speech and the right to peaceably assemble. We also have a duty to uphold the law when someone’s action crosses the line between a protected freedom and a crime against another.”
Duggan Kramer said the office devoted “an unprecedented amount of time and care” to the Occupy cases, which were each “individually reviewed.”
“Great leniency was offered first-time, non-violent offenders and the overwhelming number of cases were justly resolved with adjudications in contemplation of dismissal, in which charges are dismissed and sealed from a defendant’s record after six months,” she said. “This defendant chose to take her case to trial, and was convicted by a jury of her peers for a violent felony.”
After sentencing, Stolar said the outcome was “less worse than it could have been, but I’m still disappointed.”
He said he would make a bail motion later this week.
The “seriously offered” deal was a plea to a felony with probation, he said. “They said if she will take a misdemeanor, we will consider offering it to her. That’s not really a plea deal,” Stolar said.
Stolar said history would show that the protests were over-policed, as demonstrated by the high dismissal rates.
He said law enforcement tried to make an example of McMillan. “I don’t see any reason why Cecily would be prosecuted for a felony except to send the message out that says do not get yourselves involved in protests, do not get yourself involved in demonstrations. Otherwise, we’re going to severely deal with you if we have a reason to do so,” he said.
Stolar handled about 350 Occupy cases as part of his work through the National Lawyers Guild, work he has been doing since he represented Vietnam War-era protesters in the 1970s.
Ben Meyers, who served as the mass defense coordinator for National Lawyers Guild-New York City Chapter during the protests, said 67 volunteer attorneys took on at least 1,849 Occupy Wall Street cases.
“To be in the middle of what was at the time an exciting new social movement and provide that kind of support was exactly why I had gone to law school,” said Meyers, now the co-chair of the Mass Defense Committee for the chapter.
One of the attorneys volunteering their time was David Rankin of Rankin & Taylor, whose firm took on about 60 Occupy cases and has worked on mass defense matters dating back to the Republican National Convention arrests of 2004.
Policing during Occupy Wall Street “was demonstrably more violent than anything we had seen in the last decade,” said Rankin, who was not involved in McMillan’s case.
He said it was a “real honor” to defend clients who sought to “express their minds and enjoy their rights.”