Inside the Current Issue

Miguel Malo will be sentenced Dec. 13. Internationalist Photo

Malo Convicted

Faces year in jail for police 'assault'

Mark Wilson

After four years, two trials and over fifty court appearances, Hostos Community College student activist Miguel Malo was convicted on Oct. 24

of third-degree "reckless" assault and disorderly conduct for his role in a 2001 protest against CUNY cutbacks. At a later hearing Judge Catherine Bartlett scheduled his sentencing for Dec. 13.

The prosecution, led by Bronx assistant district attorney Terri Gensler, pushed for $3,000 bail to be set and for the maximum sentence of up to a year in prison to be imposed at sentencing, even though Malo was acquitted of the most serious charge, intentional assault.

Malo's supporters have insisted that both bail and jail time are practically unheard of in misdemeanors related to political protests. (The bail was later reduced to $500 and was posted by supporters.)

"There is no precedent," said Jan Norden of CUNY Action to Defend Miguel Malo. "From the beginning they've wanted to make an example of him." Now that Malo has been convicted, CUNY Action and other groups have shifted their efforts to lobbying Judge Bartlett not to send Malo to jail, which they say would have a chilling effect on free speech at CUNY.

Malo's supporters rally in the Bronx. Internationalist Photo

Throughout his ordeal Malo has become a symbol of free speech at CUNY, and the CUNY community has rallied behind Malo throughout his second trial on nine counts of resisting arrest, disorderly conduct, and assault against campus police. Faculty, students and staff have written at least 50 letters to the court arguing that jail time for Malo would be an injustice for him and would damage the University.

Press conferences and demonstrations organized in support of Malo have regularly drawn substantial numbers. A petition is currently circulating opposing any sentence involving jail time, and a steady flow of emails has kept those concerned about the implications of the Malo case informed of the latest developments.

Protesters at the Oct. 26 rally at the entrance to Hostos Community College spelled out their support for Miguel Malo. Sue Kellogg/Internationalist

"It's quite striking," Norden said. "We've never seen such an outpouring of support. We hope that it will have an effect, because it would be compounding the injustice [of his conviction] for Miguel to be sent to jail."

In particular, Malo's supporters are urging a large turn-out at the sentencing to demonstrate the University community's rejection of jail time for Malo. The hearing will be held at 9:30 a.m. on Dec. 13 at the Bronx County Criminal Court, which is located at 215 E. 161 St. in the Bronx. The courthouse is one block east of Grand Concourse and is accessible from the D and 4 trains.

During Malo's trial, Gensler contended that Malo kicked a uniformed security officer at Hostos Community College in the groin while resisting arrest. She was trying to portray the defendant as an unruly activist who sought policy change "by any means necessary." He was "a man who went too far," Gensler said.

Malo and defense witnesses have consistently maintained that he was performing a one-man peaceful protest on August 15, 2001, when he was surrounded by campus police and violently restrained. Malo was arrested and is now facing jail, they say, not for assault but for the simple act of peacefully protesting CUNY policies. Specifically, Malo was urging students to oppose cutbacks and fee hikes in bilingual and English as a second language (ESL) programs at Hostos. Malo himself speaks Spanish and emigrated from Ecuador nine years ago. At the time of his arrest he was vice president of the college's student government.

Malo's attorney, Karen Funk, punched holes in the prosecution's claims that the 5'1" defendant inflicted substantial bodily harm on a much larger security guard, noting that medical tests performed on the guard showed no evidence of the alleged groin injury. Funk, in fact, called the prosecution's scenario not only unbelievable but impossible. A student witness, Aneudis Perez, testified that an assault team of eight to ten officers emerged from hiding after Malo held up a sign and began handing out leaflets. This team, according to Perez, separated Malo from onlookers and pushed him to the ground, kneeing him in the back and dragging him from the scene.

A photograph of Malo taken immediately after the incident showed numerous welts, according to CUNY Action. No video or photographic evidence of the incident has surfaced.

The hidden security force suggests that the College expected some sort of demonstration and had decided to try to stop it. Testimony at the trial revealed that Hostos security called in a special task force because they had received a memo predicting student protesting on the day of the arrest. This anti-activist stance appears to have been the direct result of a rally in May 2001 during which Hostos students, including Malo, successfully elicited the Hostos administration's abandonment of plans to eliminate two ESL courses.

The prosecution also claimed that Malo was acting in violation of Hostos policy by protesting in an area that had been designated off-limits. Funk, however, pointed out that the policy had been drafted immediately before the event, was available only by hand-outs distributed that morning, and was delineated only in English at a college with a heavily Spanish-speaking population. Funk's essential argument, however, was that Malo was exercising his right to free speech, and that there was no disruption until the officers' intervention created one.

The result of a guilty verdict despite Funk's refutation of the prosecution's version of events underlined what supporters charge was an unfair trial throughout. "The trial was rigged from the beginning," Norden said. "It absolutely has not been fair at all." Judge Bartlett followed the prosecution's lead, Norden explained, in disallowing character witnesses, testimony regarding the public forum nature of the incident's location, and anything that did not bear directly on the narrow question of Malo's alleged assault on a campus police officer. In addition, six armed police officers were present in the crowded courtroom, presumably to create the impression that there was a danger of disruption by Malo's supporters.

Each stage of the trial has been punctuated with protests and demonstrations. On Oct. 26 scores of protesters braved bad weather at the entrance to Hostos Community College to protest the guilty verdict. CUNY students, faculty and staff joined other supporters in chanting "Miguel Malo es inocente" and "Todos somos Miguel" ("We are all Miguel") and holding signs that included a 22-person line of placards spelling out "M-I-G-U-E-L M-A-L-O I-S I-N-N-O-C-E-N-T." Among speakers were Hostos professors Gerald Meyers and Henry Lesnick, City College professor Bill Crain, City College staff member Carol Lang (who was arrested after an antiwar protest at CCNY and was the subject of an extensive interview in the October Advocate), Jose Laguarta from AELLA (Latino and Latin American Students Association), and representatives from CCNY SLAM, Internationalist Group, Socialist Alternative, League for the Revolutionary Party, and CUNY Action to Defend Miguel Malo. A number of media outlets were present as well, including New York 1 En Español, El Diario, and WBAI radio.

University-wide interest in the long-running Malo case has been accentuated by the March arrest of three City College activists on very similar charges of assaulting a campus police officer while protesting in an area that had been quietly designated off-limits. In addition, on Oct. 18 five activists were arrested in a nonviolent protest against torture at Hunter College. Norden and CUNY Action charge that the events at Hostos, City College and Hunter are part of a broad effort by high-ranking CUNY administrators to stifle student protest.

Four years of apparently fruitless struggle on behalf of free speech and basic programs for Spanish-speaking students at CUNY have left Malo himself dubious about the American experience. "Sometimes I feel there is a mentality in the U.S. that Latin Americans are here to work in the service industry but not to get an education or a real career," he told The Indypendent's Sarah Stuteville in Spanish on the last day of his trial. The day after the trial, he mused to Stuteville, "At each moment, each time these things happen, I am understanding more about this system. And I think there is no justice."

For more information, contact CUNY Action to Defend Miguel Malo at (212) 460-0983.