DA To Prosecute Domestic Violence Victim for Murder After Saying She Was Innocent

When Manhattan District Attorney Alvin Bragg was still a candidate for his position, there was a defendant he took a special interest in. “I #StandWithTracy,” he tweeted in September 2020. “Prosecuting a domestic violence survivor who acted in self-defense is unjust.”

There was a subtext to that message. He was referring to Tracy McCarter, a woman who was charged with murder for killing her estranged—and allegedly highly abusive—husband. It was Cy Vance, who Bragg was seeking to replace in office, who brought that charge against her. The translation: As your district attorney, I won’t, and would never, prosecute such a case.

Bragg assumed office in January of this year. As of Tuesday, McCarter is officially headed to a trial for murder.

It’s not the first time Bragg has failed to apply the principles he won office promising to uphold. There was the case of Jose Alba, 61, a bodega worker who killed an irate customer: In early July, Austin Simon, 35, came behind Alba’s workstation, attacked him after his girlfriend’s payment was declined, and seemingly attempted to drag Alba out from behind the counter to continue the confrontation. Alba ultimately took a knife and stabbed Simon, who later died from his injuries.

Based on the store’s surveillance footage, it appeared to be a fairly classic case of self-defense. Yet Bragg’s office charged Alba with second-degree murder, sent him to Rikers Island—one of the most notoriously jails in the country—and violently sought a $500,000 bond to ensure he stayed there. This despite running on a platform infused with plans pledging not to overcharge and overincarcerate, and a promise to reform bail policies for pre-trial detention.

After a national outcry, Bragg dropped the charges. But McCarter has not been fortunate enough to attract the same outpouring of attention, notwithstanding the fact that her case also looks like a textbook definition of self-defense, and notwithstanding the fact that Bragg specifically leveraged her misery to distinguish himself from his predecessor.

McCarter was arrested in March 2020 after stabbing her husband, James Murray, who reportedly entered her home, where he did not live, heavily intoxicated, and allegedly threatened her life. She was found trying to administer CPR while screaming for assistance, and her neighbors say Murray had been on a bender in the building. But the grand jury that approved a murder charge against McCarter didn’t hear about Murray’s drunkenness that day, or his detailed history of violent behavior and abuse, because prosecutors declined to share it.

Bragg, however, could have charted a new course. As the DA, he has power over which cases he does and does not want to prosecute. As I wrote in July:

Prosecutors enjoy wide discretion on the job—a discretion that Bragg exercises liberally when it suits him. Upon ascending to the top of the DA’s office, Bragg announced that he wouldn’t prosecute certain crimes, like sex work and marijuana possession. That’s not because the New York Legislature had a change of heart on those issues; it’s because Bragg has the power not to enforce certain crimes as he sees fit.

Yet not unlike Alba, McCarter encountered a different Bragg from the outset of his time in office. She encountered the tough-on-crime Bragg, who initially fought to make sure she could not leave New York City for psychiatric treatment as a condition of her bail. It was an odd move, particularly when considering this is the same defendant who Bragg insisted should never have been charged with any crime in the first place, much less be subjected to restrictive pre-trial conditions.

“Bragg has demonstrably failed at living up to his campaign promises. He’s very much turning out to be the opposite of what he ran on,” says Olayemi Olurin, a public defender with the Legal Aid Society of NYC (and a friend of mine) . “He drew attention to this case himself…and here he is in office with all the ability to drop the charges.”

The latter point bears repeating. Bragg had a very public about-face in the case of Alba, who has since announced he is moving to the Dominican Republic. (Can you blame him?) But Bragg’s office has only extended haphazard gestures of mercy toward McCarter. Earlier this week, a judge declined Bragg’s request to downgrade the charges from murder to manslaughter—because prosecutors once again did not bother to furnish evidence of her domestic abuse. That evidence includes a 2009 police report detailing Murray’s arrests, written correspondence from 2018 in which Murray admits to physical abuse, and a 2019 video of a naked, intoxicated Murray attacking McCarter.

“They affirm, without reference to exhibit or documentation, that she is a survivor of domestic violence,” wrote Acting New York State Supreme Court Justice Diane Kiesel. Again, that’s not because those exhibits don’t exist.

But prosecutors’ laziness with that motion just begs the same question once again: Why are they fighting to uphold any charge when they could seek to have it dismissed, as they did in Alba’s case? Bragg could, for instance, reconvene a grand jury and actually present the evidence of domestic violence; it is also not unheard of for prosecutors to botch a grand jury hearing if they do not think the case is worth pursuing. So too could Bragg file a request to vacate the charge entirely. Instead, the same prosecutor who publicly called the killing “self-defense” must now ensure it is called murder in court, after admitting again this week—in court—that his office does not think it was a murder.

The ludicrousness of that proposition perhaps makes a bit more sense in the context of political expediency, something that Bragg has navigated clumsily since entering office. “I don’t think charges should be brought against Jose Alba, and I think the good thing is for them to be dismissed,” says Olorin. Yet Alba’s case generated a rare sort of public backlash, particularly in conservative circles, attracting primetime segments on Tucker Carlson’s Fox News program. “These progressive prosecutors are very attuned to media attention,” she adds.

They are, after all, politicians. But while McCarter may have been useful on the campaign trail, she has proven decidedly less so after the fact.

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