MANHATTAN (CN) - Before calling its first witness for the Occupy Wall Street protester accused of elbowing an NYPD cop in the face, the defense failed Friday to have the case tossed for the "lack of credibility" of the state's five witnesses.
"Those facts [from witnesses' testimonies] will be for the jury decide," Judge Ronald Zweibel said.
Defense attorney Martin Stolar had made a similar effort on Wednesday that also proved unsuccessful.
His client, 25-year-old Cecily McMillan is accused of clocking officer Grant Bovell in the eye while police tried to clear the Occupy rally late on March 17, 2012, the six-month anniversary of the movement's reign over Zuccotti Park.
McMillan faces up to seven years in prison if convicted by a 12-member jury of 7 women and 5 men. Such a verdict would make McMillan's the most serious conviction among the thousands of Occupiers to move through the court system in the wake of the mass demonstrations.
First of the expected dozen witnesses to testify on McMillan's behalf was Jacob Stevens, who said he first met McMillan in September 2011.
He said he and McMillan had worked together for the movement, and that they and some other friends agreed to meet at Zuccotti Park "to have a look" at the "celebration" going on as the anniversary also fell on St. Patrick's Day.
He said they all planned to "celebrate then to go out to get a drink."
McMillan appeared "reasonably well" when they met up inside the park, he said, but they became separated amid the bustle.
Then, "I saw a lot of police, more than I've ever seen before," Stevens said. "I ran away. They were coming in fast. I didn't want to be tangled up" in that, he said.
Stevens allegedly heard that McMillan had been arrested once he left the park.
He said he later spotted McMillan "convulsing" on the sidewalk. "The distressing thing was seeing her head hitting the sidewalk a couple of times" while she lay there for about four minutes, Stevens told the court.
Police took McMillan to the hospital after her arrest, and Stevens said he was one of the first to visit her.
An officer did not let Stevens stay long, he said, noting that McMillan seemed "very scared, upset, traumatized and bruised."
Prosecutors say McMillan lunged at Bovell and purposefully elbowed him in
the left eye after asking onlookers if they were filming her with their
On the stand, Bovell testified that he had placed his hand on McMillan's shoulder to move her along and out of the park.
The defense meanwhile says Bovell grabbed McMillan's breast from behind, and that her reaction to swing was natural.
It is still unknown if McMillan will testify in her own defense.
Testimony has shown that protesters were reluctant to leave the park on the night of McMillan's arrest, even though they were told they could return when the scrub job was complete.
Prosecutors say McMillan played dead and faked a seizure after throwing the elbow to avoid arrest.
Her attorneys say she banged her head during the scuffle with Bovell and was
unable to walk.
Protesters armed with smartphones captured the chaotic scene on video, and jurors have seen several clips, including the alleged attack against Bovell.
Supporters for McMillan have packed the courtroom as the trial played out in
Manhattan Criminal Court, just blocks from Zuccotti Park.
Several websites and Twitter pages have been dedicated to McMillan's
Judge Zweibel slapped attorneys in the case with a gag order at the start of the trial, and ordered them not to speak with the media.
Previous Courthouse News coverage reported that the jury consisted of 15
people - 10 women and five men. That was inaccurate, however, as three of
the female jurors are actually alternates, making it a 12-member jury of seven women and five men.
The prosecution rested its case early Friday. In addition to Bovell, the prosecution had called that officer's supervisor to the witness stand, as well as McMillan's arresting officer, a video forensics expert and a paralegal working for the DA's office.
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