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Function of Juries & Jury Nullification | 12 May 2014

-Judge ‘Edits’ Case Heard by Jury


Fence_of_Prison-BPOThere has been much outcry over the conviction and imprisonment of Occupy activist Cecily McMillan, including a letter from 9 out of 12 of her jurors themselves begging the judge not to include any incarceration in her sentence. Given that he currently has her locked up at Rikers Island before she has even been sentenced, it seems doubtful that this judge will show mercy on that score.

There are many angry comments across the internet blaming jurors for convicting McMillan. And when a juror changes his or her Not Guilty vote to Guilty just because he or she was the lone holdout instead of out of a good faith believe that Guilty would be a just verdict, criticism is certainly legitimate. However, in the initial vote, it seems as though the majority of jurors sincerely believed a Guilty verdict was in order, and that probably has more to do with the gaming of the legal system that goes on out of the view of the jury than with the competence of the jurors themselves. In this article, Kathryn Funkhauser relates numerous legal tactics used during the trial to tilt the playing field toward conviction.

Editors Don’t Belong in Courtrooms, and Cecily McMillan Doesn’t Belong in Prison

Throughout the case, the prosecutor set out to distract the jury from the question at hand by discussing undocumented events, treating witnesses’ opinions as fact and casting aspersions on McMillan’s character. Judge Zweibel gave them free rein to do so, while consistently ruling key testimony and evidence for the defense inadmissible. This pattern was most clearly demonstrated in the court’s treatment of evidentiary video footage. Several videos posted to YouTube show the crowd at Zuccotti Park from different angles on the night in question. However, the jury saw only a sliver of blurry footage. According to the defense, out of a ten-minute video of the events before and after McMillan’s elbow struck Bovell’s face, only fifty-two seconds was admitted. Zweibel’s justification? At the beginning of this fifty-two-second section is the first frame in which Bovell says he can definitively identify himself.

It’s particularly convenient for Bovell that none of the contextual footage was shown. Another piece of his testimony was directly contradicted by the melee shown at the beginning of the video, in which another officer shoves a protester and announces through a bullhorn, “Leave the park or you will be arrested.” Bovell testified that there was an announcement that the park was being temporarily cleared for routine cleaning, at which point the belligerent protesters suddenly began to cause trouble for the polite police force. The violence with which the police are shown to interact with unresistant protesters in the full video is key to understanding the events of that night. But the judge ruled this footage inadmissible because Bovell’s memory, which proved extremely selective under cross-examination, conveniently didn’t coincide with it. One of the jurors anonymously told The Guardian that it was this fifty-two-second clip, taken out of context, that led the jury to its guilty verdict.

Another short clip was only allowed without sound—this one shows McMillan convulsing on the ground after her arrest. In that audio, jurors would have heard voices in the crowd shout at the police officers to help McMillan, which provides important context to the officers’ motionless observation of her body. If McMillan were faking distress, as the prosecution alleged, it certainly fooled many of those present. Had audio been admitted, the prosecution would have been free to argue that the crowd’s assessment was incorrect, but when the audio of the footage was ruled to be prejudicial, the ruling seemed calculated to bolster the prosecution’s narrative. The police officer’s casual reactions were there for the jury to note, but not the reactions of the civilians. Zweibel, through his selective admittance of clips, looked increasingly like an editor of those YouTube parodies of movie trailers in which The Shining is edited to look like a family comedy, or Mary Poppins is recut as a horror film. The prosecution became the director dictating a vision for the story, and Zweibel acted as the editor, selecting footage to tell the tale.

Click through for the full account of the courtroom shenanigans.

Jurors should keep in mind that they are often not told all of the relevant details they need to deliver a just verdict. What they are hearing may be a cut-and-paste mishmash of information cherry picked to put a particular spin on the situation rather than to tell the whole truth. Because judges are often ex-prosecutors themselves, and because judges and prosecutors both depend on packed legal system to make a living, more often than not the playing field in the courtroom is tilted in favor of conviction.

The purpose of a jury is not simply to rubber stamp the conclusion to which they are led by the nose through the selective editing of the information to which they are given access. Rather, each juror should independently evaluate not only the information presented, but be also be alert for any signs that pertinent information is being withheld such as redactions in documented evidence, edited videos, and so on. It is important for jurors to be skeptical of the legal process these days and take into consideration the whole picture when deliberating over a verdict.





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