The heavy hand of the law

Some of you may have been following the case of Cecily McMillan. She was one of the Occupy Wall Street protestors who was arrested and she was accused of injuring a police officer in a scuffle although she alleged that she had acted reflexively when he grabbed her breast.

She went on trial and from the beginning the judge had been very hostile to her and her defense team, repeatedly denying them opportunities to provide video evidence of her innocence..

In the end the jury found her guilty of the felony of second-degree assault. But after delivering their verdict, the jurors were shocked to discover that the charge carried with it the possibility of seven years in prison and nine of the twelve took the extraordinary step of writing to the judge saying that they felt that she should not go to jail.

In the end she was sentenced to three months in jail and five years probation with community service. Chris Hedges has an extensive account of her story and her case and how peaceful protest is being criminalized as the fears of unrest spread.

One thing that bothers me about this case is the fact that the jurors were not told what the sentencing possibilities were when they were deciding on her guilt. I can understand why in a legal sense. The issue of guilt and innocence would seem to be decidable on the merits of the evidence alone and information about sentencing should, in principle, be immaterial to arriving at a verdict of guilty or not guilty. Judges are the ones who usually determine the punishment.

But in reality, it is not irrelevant. People in general, and jurors in particular, see justice in broad terms in which guilt and punishment are wrapped together, and not in a narrow legalistic sense. The jurors seemed to feel that her offense deserved some punishment but just probation or a fine or something similar, but well short of imprisonment. If they had known what they were letting her in for, they might have reduced the charge to something much lesser or even acquitted her if they felt the sentence would be worse than her offense.

I think that jurors should be told of the range of punishments that accompany any guilty verdict so that they can make the most suitable judgment.


  1. countryboy says

    I hope there is an appeal. Sounds like crooked cops and a crooked judge to me.

  2. doublereed says

    Generally Jury Nullification is considered extremely controversial and lawyers/judges really don’t like it, as it undermines the law. Telling people what the sentences are would blatantly encourage Jury Nullification.

  3. colnago80 says

    Re doublereed @ #2

    It seems to me that the lady was ill served by her defense lawyer. A good lawyer with a sympathetic client can subtly plead for jury nullification to a jury without incurring the wrath of the judge. It has to be subtle as an overt plea can lead to the suspension or revocation of a lawyer’s license to practice law. As you say, judges and bar associations don’t take kindly to such pleas.

  4. doublereed says


    Honestly I didn’t think pleas for nullification ever came from lawyers and judges. Even subtly, if they can be disbarred then they probably aren’t going to bother trying. I’ve only heard it coming from random citizens. Like handing out flyers, writing articles, or metro billboards.

  5. colnago80 says

    Re doublereed @ #4

    Well, a number of commentators, like former Judge Bertram Katz, accusing the O. J. Simpson defense team of asking for what, in their view, amounted to jury nullification (their claim is that beating up on Mark Fuhrman amounted to such a plea). Similarly, a few commentators accused George Zimmerman’s defense team of asking for what, in their view, amounted to jury nullification. It has to be pretty subtle to pass muster but not so subtle that it flies over the heads of the jurors.

    IMHO, Johnny Cochran and company were pretty close to the line.

  6. says

    Inflated and false charges are de rigueur of the police state. It’s now standard practice in the United Stasi of America, from Critical Mass in New York to OWS protests at UC Davis, et al.

  7. sc_770d159609e0f8deaa72849e3731a29d says

    Why wasn’t the policeman prosecuted for assaulting Ms McMillan? It sounds very much as though his actions inspired the fracas.

  8. says

    sc_770d159609e0f8deaa72849e3731a29d (#7) –

    “Murder is a crime unless it is done by a policeman or an aristocrat.”
    – The Clash, “Know Your Rights” (1982)

  9. smrnda says

    On why the cop wasn’t on trial – this is why cops need to be policed by some kind of citizen review board with actual teeth. PROSECUTORS aren’t going to prosecute cops. Lodging complaints is usually a waste of time.

  10. lochaber says

    This is disgusting.

    A peaceful gathering, constitutionally protected, that only turned violent when the cops shown up.

    This women was sexually assaulted by a cop, and she is going to jail for it.

    Land of the Free, Home of the Brave my ass…

  11. says

    lochaber, it is the Land of the Free and Home of the Brave.

    There are the Free: white het cis men

    And the Brave: everyone else.

    The problem is, it’s the Free that the Brave have to be brave about.

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