MANHATTAN (CN) - A judge on Wednesday refused to order a mistrial in the criminal case against a protester accused of elbowing a cop at an Occupy Wall Street rally.
Cecily McMillan's defense attorney Martin Stolar claimed that testimony from McMillan's arresting officer violated the Fifth Amendment restrictions against the use of comments that a defendant made at the time of arrest.
Prosecutors argued that the officer's remarks about what McMillan said constitutes admissible hearsay since the officer in question overheard the statements.
Judge Ronald Zweibel agreed, ending the morning-long debate that also included Stolar's bid to show videos of the arrest that he says will prove that McMillan was not faking a seizure as prosecutors claim.
Rather, the young woman had "banged her head" during her arrest and was "in distress and incapable of walking."
"This debate is going to end," a frustrated Zweibel said. He allowed for only 45 seconds of a recording of McMillan's arrest, and shot down Stolar's request for a mistrial.
Stolar said the judge's decision to restrict his use of videos of the arrest "is cutting the heart out of my ability to refute" that McMillan was faking a seizure to avoid being arrested. "I'm totally handicapped."
It was Day 6 in the trial against 25-year-old McMillan who faces up to seven years in prison if convicted by the 10-female, five-male jury in Manhattan Criminal Court.
Prosecutors say McMillan elbowed NYPD Officer Grantley Bovell in the left eye, then played dead and faked a seizure to try to get out of being arrested.
McMillan has claimed the officer fondled her breast from behind, and that she swung in self-defense.
Neither side disputes that the elbow was thrown, but Stolar has pointed out that a discrepancy exists as to which of Bovell's eyes was clobbered.
Bovell had insisted on the witness stand that he was clocked in the left eye, but previously testified before a grand jury that he was hit in the right eye.
The incident occurred in the late night and early morning hours of March 17 and 18, 2012. It was St. Patrick's Day and the six-month anniversary of the Occupy movement's reign over Zuccotti Park.
About 100 police had been summoned that night to clear out the 100 protesters so the park could be cleaned. Although the activists were told they could return after the park was cleaned, many refused to leave, testimony has shown.
Bovell testified that he approached McMillan that night and put his hand on her shoulder to move her along.
She threw the elbow, prompting him to wrestle her to the ground and arrest her.
He said McMillan then played dead while handcuffed, causing him to fall on her while trying to escort her to a waiting city bus where other arrested protesters were taken.
While in the bus, McMillan then "faked" a seizure before being taken to the hospital, prosecutors claim.
Several protesters armed with smartphones captured the chaotic scene on video, which were well-publicized in the news and on social-media sites.
Several videos have been played repeatedly in court, prompting McMillan to twice break down in tears.
Trial resumes Friday.
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