A Judge Dismisses the Murder Charge Against a Domestic Violence Survivor

A Judge Dismisses the Murder Charge Against a Domestic Violence Survivor

A Judge Dismisses the Murder Charge Against a Domestic Violence Survivor

Two weeks after the Manhattan DA filed a motion to dismiss Tracy McCarter’s murder indictment, Judge Diane Kiesel agreed to drop the charge against her. 

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When she learned that the Manhattan district attorney was finally asking the presiding judge to dismiss the murder charge she was facing in the death of her estranged husband, Tracy McCarter’s first response surprised even her.

She immediately asked her lawyers to tell the hospital where she worked before being placed on unpaid leave that her legal nightmare might soon be ending, and that she wished to return to work.

“I would have told you in the past that I would never prioritize going to work,” she told The Nation in an interview. “Until you lose it, you don’t realize just how much it means to you.”

For more than two-and-a-half years, McCarter has been unable to take shifts as a nurse, a dream profession that she entered at age 38 after raising four children. Instead, McCarter has remained in legal limbo, living off dwindling savings and draining her retirement account.

On Wednesday, McCarter told The Nation that she was feeling hopeful about the future for the first time since March 2, 2020, something she could not feel while the threat of prison loomed. But she still had to wait until Judge Diane Kiesel issued her ruling on whether to accept Bragg’s motion not to prosecute.

On Friday, shortly after 5 pm, Kiesel issued the 11-page decision, ultimately, though reluctantly, ruling in favor of Bragg’s motion to dismiss the second-degree murder charge against McCarter. The judge referenced letters opposing the dismissal from Murray’s brother and ex-wife. Wrote Kiesel:

The Court finds no compelling reason to dismiss the indictment, but for the District Attorney’s unwillingness to proceed. It is not in the interest of justice for the Court to engage in a futile and unseemly stand-off with the District Attorney that would waste precious court resources, interfere with other important cases that must be prosecuted in this post-COVID backlog, and cause needless anxiety for the defendant and for the family of the deceased. Ultimately, it would hold the Court system up to ridicule and scorn, a result that must be avoided.

But McCarter is not totally free. The judge’s ruling gives Bragg’s office a 60-day window to seek an indictment on lesser charges.

Kiesel said at the end of her ruling, “Should the prosecution of this criminal transaction end with this written decision, it will be the district attorney’s choice, and not the result of any dilemma caused by this Court.”

As I previously reported for The Nation, McCarter has been living her worst nightmare since that fateful evening when she allowed her husband, Jim Murray, from whom she had been separated, into her apartment. She let him in to prevent her building’s management company from evicting her for his constant harassment of her neighbors. Instead of falling asleep on her couch, he demanded money and attacked her when she refused. Murray died from a stab wound to his chest. (In legal filings, McCarter maintained that he lunged at her, tripped, and fell on the knife that she had grabbed to ward him off.)

McCarter spent six months at Rikers despite not having been indicted. A grand jury later indicted her, in September 2020, and her murder trial was set to begin this past Monday. Instead, Manhattan DA Alvin Bragg eventually kept his campaign promise, even appearing in person to argue before Judge Kiesel that the charge against McCarter should be dismissed.

When Kiesel asked Bragg directly whether his office would pursue lesser charges, the DA was vague on the issue. The judge said during the hearing, “Well, I mean, you’re free to go into the grand jury this afternoon, if you wanted, and seek a superseding indictment on lesser charges that you believe more closely reflect the evidence in this case. And frankly, if you represented the murder charges, and if the second grand jury returned a no true bill, that would be the end of it. You’re free to do that, aren’t you?”

Bragg responded, “I am free to do that, your Honor, under the law. I think we would be constrained from representing a charge that I didn’t believe in and, ultimately, forced. The instant indictment is up to your Honor to dismiss or not, even in that instant. That is what our research indicated.”

Prior to that hearing, on November 18, Bragg filed a motion to dismiss the second-degree murder charge, saying in an accompanying letter that he could not “allow a prosecution to proceed to trial and ask a jury to reach a conclusion that I have not reached myself.”

Bragg’s office would not comment on whether they would seek lesser charges. After the ruling, Emily Tuttle, his deputy director of communications, told The Nation, “We are reviewing the decision.”

McCarter and her eldest son, Brandon, told The Nation this week that they looked forward to the end of their ordeal so that they could focus on healing. “If there’s no guarantee of what the next ruling or tomorrow holds, you can’t plan beyond the next court date,” said Brandon.

Still, the ongoing prosecution has taken its toll. “I used to believe I was equal to anybody else in society,” said McCarter, referring to the ways in which she was disbelieved and treated by the legal system. While she had known that Black and brown people were targeted by policing and imprisonment, and, as a Black mother raising Black children, had warned her sons about the police and law enforcement, she had never thought that she would be ensnared. “Now, I’ll never believe that lie again.”

With the charge dropped and all travel limitations lifted, McCarter can now seek inpatient trauma treatment. She had previously found an out-of-state facility that accepts her insurance and, just as importantly, does not lock patients in, a practice that would exacerbate her traumas of abuse, Rikers Island, and ongoing prosecution.

As hopeful as McCarter is about her future, she understands that there are countless others facing prosecution under similar circumstances. Her situation was exceptional in that she, her family, legal team, and supporters kept her case in the public eye, even making it a campaign issue in the district attorney election.

But she urges other domestic abuse survivors facing criminal prosecution, “Don’t be afraid to advocate for yourself.” She would encourage them to write to people and organizations that can help connect to legal and other resources. When she was initially released from Rikers, her family members and advocates acted as her voice to the press.

Brandon also acknowledged how it was important to “build a community,” because when his mother was arrested, neither he nor his siblings had any experience navigating the criminal court system.

“Reach out to organizations that specialize in the situation that your loved one is going through,” he said. “They are equipped and they are experienced in dealing with and processing systems and processes that you have no idea about, that you don’t have the time to learn about while also living and ultimately talking to the media. Because I truly believe without yourself and everyone else who wrote articles, I don’t believe we would be here right now.”

McCarter’s attorneys agreed, saying in a joint statement after the decision was announced, “We are incredibly proud to represent Tracy McCarter, who has fought her case for two and a half years to get to the only just outcome—dismissal. And we are extremely grateful to the community and advocacy groups that fought for Tracy until the end.”

Even with Kiesel’s decision today, McCarter wants to be clear that the entire legal system robbed her of nearly three years. “This one DA has taken a lot of flak,” she said about Bragg. “But let’s not forget this was started by another DA, who also had the power to drop the charges.” She noted that she appeared before five judges who issued rulings, including one that permitted a police officer to falsely state that McCarter had said that she stabbed Murray and several that prohibited her from seeking out-of-state trauma treatment. Even Judge Kiesel, who ultimately ruled to dismiss the charges, could have issued her decision that Monday morning instead of waiting until 5 on Friday evening.

“The DA has already made his decision and I’m still being forced to wait for another 60 days,” McCarter told The Nation after the decision. “How terrible is it to make me wait this much longer? Haven’t I already lost enough days?”

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