From McMillan to Yates, the Fight Goes On

Photo: Jenna Pope.

One of the most tragic parts of the Cecily McMillan trial is that the verdict may have turned out different had the jurors been fully informed -- not just of what happened the night McMillan was arrested, but of what fate a guilty verdict would bring, and also of their own rights to judge the merits of the case, regardless of the charges leveled against the defendant.

In the aftermath of the jurors' guilty verdict, one juror came forward and expressed regret, after learning what the verdict could mean for McMillan when the sentencing phase arrives. From The Guardian:

Finally freed from a ban on researching the case, including potential punishments, some were shocked to learn that they had just consigned the 25-year-old to a sentence of up to seven years in prison, one told the Guardian. "They felt bad," said the juror, who did not wish to be named. "Most just wanted her to do probation, maybe some community service. But now what I'm hearing is seven years in jail? That's ludicrous. Even a year in jail is ridiculous."

So why did this juror swing to the "guilty" side? Because the rest of the jury was basing its verdict on the only real piece of video evidence it was allowed to see: a grainy video showing only McMillan's attempt to flee from her assailant, but failing to show the larger context of the widespread police brutality against her and many others in Zuccotti Park that night.

"For most of the jury, the video said it all," the juror said. The juror said that an immediate vote after the 12 were sent out for deliberation found they were split 9-3 in favour of convicting. After everyone watched the clip again in the jury room, the juror said, two of the three hold-outs switched to the majority, leaving only the juror who approached the Guardian in favour of acquitting the 25-year-old. Sensing "a losing battle," the juror agreed to join them in a unanimous verdict.

And that's how a young woman will end up in prison: because one juror, rather than standing firm, felt he or she was fighting a losing battle against the rest. The juror caved.

Had the juror stuck to his or her guns, we could have seen a hung jury and a mistrial -- which certainly would have been a better outcome than what we ended up with.

On one hand, it's hard to fault the jury for seeing things the way it did. The jurors saw one video in isolation. The judge didn't allow them to hear about the police officer's own violent past, about the brutal police crackdown that evening, about how McMillan was beaten on the ground until she had a seizure and passed out, or about McMillan's own commitment to nonviolent protest -- since all of those things would be "prejudicial." Jurors saw an up-close picture of the elbow McMillan hit the officer with, but there were no close-ups of the officer's alleged injury. Prosecutors went so far as to suggest that McMillan faked her seizure and deliberately injured her own breast after the fact.

But on the other hand, how could these jurors have ever seriously thought that finding a woman guilty of assault on a cop would lead only to "probation, maybe some community service"? The system protects its own. There should have been no question that the potential sentence would be draconian.

One thing that seems certain is that these jurors had no concept of the right to jury nullification, and it always amazes me how many jurors seem to be oblivious to it. If some of the jurors were reluctant to find McMillan guilty, they didn't have to, regardless of what they thought the evidence showed them. It needs to be common knowledge among all potential jurors that you are under no obligation to render a verdict in accordance with the letter of the law.

One glimmer of hope is that the presiding judge, Ronald Zweibel, was so biased during the proceedings that the defense may win an appeal on that basis alone. Zweibel has been characterized as "a prosecutor with a robe." He placed a gag order on McMillan's defense team and raged against anything that even remotely resembled support for McMillan in his courtroom. Again from The Guardian:

Judge Ronald Zweibel.
Photo: New York Daily News.

When supporters entered court wearing paper hearts on their chests in an attempted show of solidarity, the judge furiously sent out the jury and ordered a police officer to confiscate the hearts. When a handful chuckled from the gallery at McMillan's bashful recounting of her university days in Wisconsin, Zweibel ordered them to shut up.

When the defense team complained about his tactics, all he did was bark at them to stop talking. From Chris Hedges:

The silver-haired Zweibel curtly dismissed a request by defense lawyers Martin Stolar and Rebecca Heinegg for a motion to dismiss the case. The lawyers had attempted to argue that testimony from the officer who arrested McMillan violated Fifth Amendment restrictions against the use of comments made by a defendant at the time of arrest. But the judge, who has issued an unusual gag order that bars McMillan's lawyers from speaking to the press, was visibly impatient, snapping, "This debate is going to end." He then went on to uphold his earlier decision to heavily censor videos taken during the arrest, a decision Stolar said "is cutting the heart out of my ability to refute" the prosecution's charge that McMillan faked a medical seizure in an attempt to avoid being arrested. "I'm totally handicapped," Stolar lamented to Zweibel.

All we can do is hope that McMillan doesn't become another political prisoner in this country, and that she wins justice on an appeal.

But even if she does, the fight goes on, as these complete abortions of justice will continue to happen over and over again. A case coming up in July highlights another example of police overreach, as Emily Yates goes on trial for the crime of standing in a park and not moving out of a public area when a cop asked her to. As it turned out, the police were sectioning off the area in preparation for a pro-marijuana rally later that day, but they never explained that to Yates. All she wanted was an explanation for why she had to leave an area of a public park where she'd been doing nothing but playing a banjo and singing during a rally opposing U.S. military action in Syria.

Here's how it went down:

Notice how the one cop continues to say "stop resisting" when she's not resisting, and "stop kicking" when there's no visual evidence that she was kicking anyone. She's being bent over a park bench and manhandled, screaming for help and overpowered, unable to do anything else. It's likely the cop knew he was being filmed and said "stop resisting" only to give himself automatic cover in court.

In Yates' own words:

As you can see in the video, I had my back turned when multiple Park Service rangers grabbed me by my wrists, bent me over a park bench, picked me up by my arms and legs, dragged me away from a crowd, dropped me face-first on the ground (as you can see in these photos: desrowvisuals.com/Arrests/Philadelphia-Arrest-83113/), then carried me to a truck, threw me in – again face-first – and dropped me off at the Philly Federal Detention Center, where I was kept for three days without any explanation. Upon my release, I was told I was being charged with assaulting the rangers (while they were manhandling me, not before). 

According to one report, she was ultimately charged with resisting arrest, failure to obey law enforcement officers, and disorderly conduct.

Here are a couple of those photos she mentioned:

Photos: desrowvisuals.com.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

What part of "peaceful assembly" is unclear to these thugs?

The fight goes on. Maybe one day the good guys will finally win.