“Occupy Wall Street protester Cecily McMillan is about to get her wish to occupy public space,” editorialized the New York Post (“Occupy jail cell”) on May 9th. “Too bad for her it’s likely to be a jail cell.” A few days earlier, a jury that didn’t get to hear or see a good deal of relevant evidence found her guilty of felonious assault on a police officer who was clearing Zuccotti Park on St. Patrick’s Day, 2012. On Monday morning, Judge Ronald Zweibel sentenced her to ninety days on Rikers Island (with time off for the fourteen days she has already been lodged there), to be followed by five years’ probation.
Thus did the Post, the police, and District Attorney Cyrus A. Vance, Jr., acquire a representative perp to stand in for Occupy Wall Street’s alleged offenses against law and order**.** McMillan’s supporters—including five City Council members and two members of Russia’s Pussy Riot, who visited her on Rikers—saw her as emblematic of a movement that, while it lasted in Zuccotti Park, helped to turn the nation’s attention to income inequality. Because the D.A. has prosecuted very few protesters on felony charges (three of whom were eventually allowed to plead guilty to misdemeanors) ), and because McMillan is the last, and is an appealing and plucky character, her case became the fulcrum of post-Occupy attention. Symbolically, at least, Occupy Wall Street and those who had dispersed it were once again going head to head, this time in the courtroom.
On the night of St. Patrick’s Day, McMillan was wearing a tight top and miniskirt, both vividly green. (Her parents are of Irish and Mexican descent.) Although she had been an active participant in the Occupy encampment, she has said that she stopped by Zuccotti Park that night not to confront the police but to pick up a friend for a drink. Stuff happened, as Donald Rumsfeld would say. About one event there is no disagreement: McMillan’s right elbow met Officer Grantley Bovell’s left eye. About the prologue, the context, and the meaning of the act, Bovell said one thing and McMillan said another.
Bovell, soft-spoken and mild-mannered on the witness stand, testified that, unprovoked, McMillan had elbowed him in his eye. He was left with a black eye, his cheek was cut, and he later suffered headaches.
McMillan, on the other hand, insisted that she was on her way out of the park, as the police had ordered, when somebody grabbed her from behind and ran his hand roughly up and over her right breast, whereupon, in a reflexive action, she elbowed the unknown person who had grabbed her. In photos taken just about then, she appears to be screaming, and looks fearful, not exultant. Thrown to the ground shortly thereafter, she plunged into a seizure for the first time in her adult life. A photo, shown to the jury, blown up, shows a large bruise on her breast. Assistant D.A. Erin Choi suggested that McMillan may have inflicted this bruise, and others, on herself. The prosecutor claimed that hospital records mentioned no bruises. According to McMillan’s attorney, Martin Stolar, McMillan simply didn’t complain at the hospital that the bruises were inflicted by a police officer. It wasn’t until she was charged and released on bond that she saw, on video, who it was who had grabbed her.
Judge Zweibel was, Stolar said, “extraordinarily protective of the police.” The trial had barely begun when the judge imposed a gag order on Stolar and his co-counsel, Rebecca Heinegg, after a Times reporter paraphrased a comment of Stolar’s to the effect that Bovell’s account differed from his client’s. Of several videos posted to YouTube and elsewhere, each showing the Bovell-McMillan encounter from a different angle (Occupy Wall Street was famously well documented), the judge permitted the jury to see and hear only one—a murky fifty-three-second fragment in which the first clear image is of McMillan’s elbow move. Of a second video, which the judge only permitted the jury to see with the sound off, the Times’ James C. McKinley, Jr., wrote:
Assistant D.A. Choi maintained that McMillan hit Bovell to get attention from cameras. She maintained that McMillan had been cursing a female officer by his side—an officer never named, nor produced as a witness. In her closing argument, Choi said that Bovell would have had to have “iron hands” to leave such a bruise through McMillan’s clothes.
Austin Guest and Shawn Carrie were on a city bus commandeered by the police to take them to court on the night of St. Patrick’s Day. Guest says that Bovell pushed him up the stairs into the bus, threw him “head first” inside, then dragged him down the aisle, handcuffed, while “intentionally banging his head on each seat.” His friend, Carrie, said that he saw Guest being knocked around. Judge Zweibel refused to let Stolar ask Bovell about these alleged actions. (Guest is a complainant and Officer Bovell is one defendant in a federal civil-rights lawsuit, still in an early stage, about that incident. The defendants have denied all allegations.)
So, on May 12th, for less than three hours, the multiracial, multiage jury weighed the case that it had been given, and found McMillan guilty beyond a reasonable doubt. Afterward, one juror, speaking to the Guardian, expressed shock upon learning that she might be sentenced for up to seven years in prison. In advance of the sentencing, another juror, Charles Woodard, addressed a letter to the judge, saying that he spoke for eight other jurors, all calling for community service and probation.
If Occupy Wall Street did believe in leaders (it assuredly didn’t), it would not have chosen McMillan as its poster child, even though, from a strictly biographical point of view, she was an exemplary occupier. She emerged from the lower reaches of the ninety-nine per cent, growing up poor in Beaumont, at the far eastern edge of Texas. In Appleton, Wisconsin, where she graduated from Lawrence University, in 2011, she threw herself into the campaign to preserve public-sector collective bargaining from Governor Scott Walker’s efforts to do away with it. She is a passionate, animated organizer. But, unlike most of the more-or-less anarchists who steered the not-exactly-rudderless encampment, McMillan counts as a social democrat; her organizational attachment is to the Democratic Socialists of America, which follows Michael Harrington’s credo of being “the left wing of the possible.” She has worked in election campaigns, including one unsuccessful effort after Occupy Wall Street.
Accordingly, she disapproves of the “horizontality” that most of Occupy’s inner circle vehemently preferred. She rolls her eyes at the hand-twinkling and hands-down gestures that O.W.S. devised to substitute for applause and boos. She has organized with unions, and is writing a master’s thesis at the New School on social movements, in particular Bayard Rustin, the militant pacifist who was the chief organizer of the 1963 March on Washington for Jobs and Freedom. McMillan heard of him from her step-grandfather, Harlon Joye, of Atlanta, an ally of Rustin’s from the civil-rights days and an early member of Students for a Democratic Society.
From the beginning (in fact, before the encampment settled into Zuccotti Park), she thought that O.W.S. ought to make demands. In Zuccotti Park, she devoted herself to formulating them. (She lost out.) Her credo is Gandhian nonviolence. Several of the more incendiary occupiers argued persistently with her during the Zuccotti Park days. Three testified to that effect during her trial, though the judge disallowed testimony from a handful of others. From the time I encountered her, early in 2012, she has insisted that this was more than ideology—it is her way of life. She is writing a book on her story and her case. The D.A.’s office, on the other hand, thought that, in jail, she’ll need treatment for her “anger issues.”
In court for sentencing, her handcuffs removed for the occasion, wearing a pink dress, McMillan said this:
Before McMillan’s sentencing hearing, Assistant D.A. Shanda Strain told the judge that “an appropriate deterrent message” needed to be sent to “anyone who intentionally hurts a police officer.” In statements after her arrest, Strain said, McMillan “began a campaign of falsehood” against Bovell and had “falsely assaulted” his character,” adding that, as a result of these defamations, “Officer Bovell’s name is forever associated with this self-serving, false accusation.” “She seeks to be perceived as a martyr,” Strain said of McMillan, having “sought to transform this court into a platform.”
Still, in the end, the prosecution recommended ninety days in prison and five years of probation, along with a five-thousand-dollar fine and community service, and Judge Zweibel agreed. [Note: Although the judge accepted the prosecution recommendation on jail time and probation, he did not order her to pay the fine or do community service.]
The D.A.’s office took the position that McMillan had brought the sentence on herself when she “opted to reject a plea offer to a lesser offense.” McMillan’s lawyer has said that the prosecution made no offer that took a felony conviction off the table. If she had pleaded guilty to a misdemeanor, the prosecutor was willing to do no more than “consider” not pursuing such a sentence. McMillan is appealing.
With the historian Maurice Isserman, her thesis adviser, and the documentary filmmaker Nina Davenport, I visited McMillan at Rikers Island on May 16th. She told us that one corrections officer had addressed her as “Vagina,” and that another, when McMillan asked what she could do to obtain her A.D.H.D. medicine, replied, “Oh, you want your crazy pills!” (A Rikers Island official said Friday that it was his understanding that she is now receiving her medication.) She shares a dormitory room with forty women.
In the visiting room, some dozen other women, all of them African-American or Hispanic, were receiving visitors. Cheer was in evidence, and no small quantum of staring sadness. McMillan was placed in a diminutive chair against a wall while, on the other side of a small table, the three of us visitors were placed in a line. At one point, a guard stepped over, looked down, and told Isserman to uncross his legs. (“It has something to do with contraband,” McMillan tried gamely to explain.)
Nevertheless, McMillan seemed in good spirits. She is learning Spanish, reading, making notes for a book, and exercising fiercely. Other inmates call her “Activista.”
Todd Gitlin is a professor of journalism and sociology at Columbia. His most recent book is “Occupy Nation: The Roots, the Spirit, and the Promise of Occupy Wall Street.”
Photograph of Cecily McMillan and attorney Martin Stolar by Andrew Gombert /EPA.
