Prosecutors Ignored Evidence of Her Estranged Husband’s Abuse. She Faces 25 Years in Prison for Murder.

In the fall of 2014, Tracy McCarter moved to New York City from San Antonio on a travel nursing assignment. Having grown up in Chicago, she was excited to return to a larger city. There was another advantage to the move: She’d have a friend, James Murray, to show her around. Murray, a financial consultant, had previously lived in Texas, and the two had dated for three months after meeting online in 2014.

McCarter got a job as a nurse at an inpatient rehabilitation unit at a New York Presbyterian hospital on the Upper East Side of Manhattan. There, she met Ashley Gray, who was working as a nurse’s assistant on the same unit. The pair quickly became friends, then best friends, bonding over their shared sense of humor and love of taking care of people.

Meanwhile, McCarter and Murray started seeing one another again as friends and eventually rekindled their relationship. Gray remembered McCarter gushing about Murray to her. “She felt like he was her soulmate and he was the one, this was it,” Gray told The Intercept. McCarter also confided to her that Murray would physically and verbally abuse her when he had been drinking. “It was always good until it wasn’t,” Gray said.

Two years ago, Gray moved to Hudson, New York, and she and McCarter spoke less frequently than when they both lived in the city. In March of last year, a mutual friend sent a New York Post article to Gray. McCarter had been arrested and charged with murder for the stabbing death of Murray in her Upper West Side apartment. Gray screamed and cried hysterically. “I would have never guessed in a million years that would be the end of it all,” she said. “I would say it would’ve been the opposite way around.”

Manhattan District Attorney Cy Vance is seeking a second-degree murder conviction against McCarter on the grounds that she intended to kill Murray when she picked up the knife. If convicted, she faces a sentence of 25 years to life in prison. McCarter has pleaded not guilty and has said she was acting in self-defense. Her lawyers have argued that Murray’s death was the tragic ending to a long history of abuse and that McCarter was in fear for her life on the night that she stabbed him. Vance’s office chose not to present evidence of the abuse to the grand jury that decided to bring charges against McCarter; prosecutors have argued that it was not substantial enough to warrant self-defense and that McCarter was a perpetrator of domestic violence herself. Now McCarter’s lawyers are asking a judge to throw out the indictment because prosecutors purposefully left out that evidence.

With Vance set to leave office in November, McCarter’s case has emerged as a litmus test on domestic violence in the race for district attorney. Advocates for domestic violence survivors are calling on Vance’s successor to dismiss charges against McCarter and commit to refusing to prosecute similar cases. Eight of the nine candidates answered questions from The Intercept about how they would handle cases like McCarter’s. All of them said that they would introduce reforms to the prosecution of survivors of domestic violence.

“It’s not a murder case, clearly,” said Dorchen Leidholdt, legal center director for Sanctuary for Families, a New York organization that provides support for domestic violence survivors and has been advocating on McCarter’s behalf. “I think after investigating the case they could have reasonably concluded this was a woman who was in danger and should not be charged at all.”

McCarter and her attorneys declined to speak on the record about the case. Vance’s office declined to comment, citing the ongoing prosecution. Murray’s family did not respond to requests for comment. This article is based on interviews with her best friend and daughter, transcripts from court proceedings, video footage, and court filings.

“When women kill, there’s a fairly decent chance they’re fighting back or otherwise kind of engaged with an abusive partner.”

Prosecutors frequently seek murder charges against women who kill men in acts of self-defense, including in recent cases in Alabama and New York. In Arkansas last year, a woman who said she accidentally killed her abusive husband while defending herself was released on parole after being incarcerated for 34 years. Though there are no available national statistics on the number of women incarcerated for defending themselves, a 2005 New York Department of Correctional Services study found that one-third of women who entered prison that year for killing someone had experienced abuse by that person around the time of the killing and that 59 percent of women incarcerated in 1986 had experienced the same. According to a 2008 study by Yale University, women who used violence against their male partners usually did so after experiencing violence themselves.

In the criminal legal system, the odds are against Black women who kill white men, like McCarter. According to a 2014 analysis of national homicide data by the Urban Institute, just 2.9 percent of such women were found to be justified in the killings — which, generally speaking, meant that they did not face charges — compared to 13.5 percent of white women who killed Black men.

Women who fight back against their abusers “are not well protected by the various mechanisms in the criminal law that are supposed to weed out punishment for that kind of behavior,” said Leigh Goodmark, a University of Maryland professor and author of the book “Decriminalizing Domestic Violence.” “When women kill, there’s a fairly decent chance they’re fighting back or otherwise kind of engaged with an abusive partner.”

Tracy McCarter stands within the walls of her apartment’s backyard in New York on May 2, 2021.

McCarter and Murray dated for several years following her move to New York City, maintaining a mutually agreed-upon open relationship. Murray had a history of alcoholism and went to rehab several times while they were dating, though he was ultimately unable to stay sober. He would get angry when he drank and would often become violent. In a June 2018 email obtained by The Intercept, for example, Murray wrote to McCarter, “I can’t live with myself hitting you…I can’t stop crying and I’m a terrible man.” That same month, McCarter texted a work colleague to say that she feared Murray because he had “punched, kicked, and tried to choke her,” according to a filing by McCarter’s lawyers.

Gray said she remembered McCarter telling her on at least five occasions that Murray had been abusive, including one incident that involved choking. Though McCarter told Gray she was scared of Murray, Gray sensed that she was also embarrassed and did not want the abuse to define their relationship. “It was like a Dr. Jekyll and Mr. Hyde situation,” said Gray.

The couple married in May 2019 — Murray was sober at the time; it was a joyous day — and they continued to have an open relationship.

Within a few months, Murray started drinking again, and the violence resumed. A cellphone video from August 2019 reviewed by The Intercept shows Murray, naked and intoxicated, repeatedly yelling at McCarter, “Give me my cigarettes please.” After she tells him that she does not have his cigarettes, he yells in her ear and pulls her hair. “Let my hair go — stop pulling my hair!” she exclaims, then turns the camera upward to show Murray’s grasp on the top of her head. Murray walks away, then turns back toward McCarter and extends his arms, appearing on the shaky footage to lift both hands and place them around McCarter, somewhere above her shoulders. “Jim stop it!” McCarter screams.

At the time, McCarter, a mother of four grown children, was still working as a nurse and was enrolled in a master’s nursing program at Columbia University. She decided to move to her own apartment in an effort to distance herself from Murray’s drinking and violence.

After McCarter left Murray, he was either unhoused, in and out of rehab, or staying at hotels. Though they were estranged, they continued to communicate with one another; McCarter still loved him and wanted to help. On the evening of March 2, McCarter received a call from Murray. He had lost the keys to the Airbnb where he’d been staying, he told her, sounding drunk. McCarter agreed to let him stay the night at her apartment so he could sober up.

Once they got up to the apartment, Murray demanded that McCarter give him cash for alcohol, according to a court filing by McCarter’s defense team. McCarter initially refused, not wanting to be complicit in his drinking, but relented once Murray started to wrestle her for the purse. During this time, she cried out for help. Murray did not find any money in the purse and became what McCarter’s lawyers describe as “physically aggressive” toward her. McCarter picked up a nearby knife and held it out in an attempt to ward off Murray. But he kept coming toward her, and she pierced Murray in his upper right chest.

Screaming for help, McCarter put pressure on the largest knife wound in an attempt to stop the bleeding. (There were also three superficial cuts on Murray’s neck.) A neighbor heard the screaming and came into the apartment. They called 911 together. Rafael Fermin, the building’s superintendent, soon came to the apartment. McCarter “was yelling please help, please help,” he told The Intercept.

Within 10 minutes, 10 police officers entered McCarter’s apartment, according to the filing by McCarter’s lawyers. “Jim, please stay with us. Please,” said McCarter, as she kneeled on the floor applying pressure to Murray’s wound, according to a transcript of body camera footage from an officer at the apartment. As one of the officers put handcuffs on McCarter, she screamed, “No, no, please no!… He was fighting me. I don’t understand. And I was ringing for help.” After Murray was taken to the hospital, where he was pronounced dead, paramedics transported McCarter to the hospital for “extreme emotional distress,” according to a court filing. There, McCarter told a hospital psychiatrist that she was “concerned” Murray “would kill her because in the past he had choked her.”

Following McCarter’s arrest, Vance’s office fought to keep McCarter incarcerated until her case was brought before a grand jury, arguing that McCarter would be a flight risk because of her connections to people outside New York City. Then the coronavirus pandemic hit New York, and Gov. Andrew Cuomo suspended grand jury proceedings. As a result, McCarter remained incarcerated at the Rikers Island complex until September as she waited for the grand jury to reconvene to consider the facts of her case, as presented by prosecutors, and decide what charges she would face, if any.

Ahead of the grand jury meeting, McCarter’s legal team, helmed by Sean Hecker, pushed prosecutors to present the evidence of Murray’s history of violence that prosecutors had obtained throughout their six-month investigation. Among this evidence is the June 2018 email and text messages, the August 2019 video recording of Murray, and a 2009 police report regarding Murray’s arrests for assaulting his ex-wife. According to that report, Murray grabbed her arm, pulled her hair, then pushed her to the ground. The police report notes that Murray’s ex-wife said “this was not the first incident of this nature regarding her husband” and that she requested a restraining order. “This is the first time she has reported the abuse to the police,” the report also states.

McCarter’s lawyers also told the prosecution, led by Assistant District Attorney Sara Sullivan, that it was crucial the grand jury be given information about Murray’s addiction to alcohol, since his violence was intertwined with his drinking. At the time of his autopsy, he had a blood alcohol level of 0.12 to 0.14 percent, much higher than the legal level of 0.08. According to a filing by McCarter’s lawyers, the prosecution told Hecker that she would not present that evidence to the grand jury because it “did not demonstrate a meaningful pattern of domestic violence,” and Murray was “not drunk” or “not that drunk.”

As McCarter awaited an indictment, her lawyers pleaded with several judges to release her either on bond or electronic monitoring, citing promises from hospital and school officials that McCarter would be able to return to her nursing job and classes at Columbia. They also pointed to a letter from Murray’s dad advocating for her release on bond.

During an April 2020 hearing, New York City Supreme Court Judge Diane Kiesel expressed uneasiness about the prosecution of McCarter — “I have to say I have some concerns about whether this woman is a victim of domestic violence,” Kiesel said, “and whether this is not part and parcel of a long history in which she felt some need to defend herself” — yet she subsequently ruled against setting bail.

“You hear about the injustice of the justice system, and it’s something that I don’t think you can really understand the gravity of the injustice until it touches you personally.”

After the Wall Street Journal published an article about McCarter’s case in September, Vance’s office stopped fighting McCarter’s requests for release. McCarter was released on electronic monitoring on the condition that she not leave the Harlem apartment she had moved into upon her release. Her outside time was increased to seven hours per week in November. During that hearing, McCarter’s lawyers argued that she needed to have more time out of the apartment to walk her dog Snuffles, a 10-year-old cross between a Shih Tzu and a poodle. The prosecutor rebuked the request, saying that McCarter could walk Snuffles in her backyard.

Because of Covid-19, McCarter has not yet been scheduled for trial. Should a jury reject her claim of self-defense and convict her, she could request a lesser sentence under the state’s Domestic Violence Survivors Justice Act, a 2019 law that allows survivors of domestic abuse to ask the judge to consider their abuse when handing down a sentence.

She has not been permitted to return to work at the hospital because of the charges pending against her, said her daughter, Ariel Robbins. The hospital did not return a request for comment.

Shortly after she was arrested, Columbia sent McCarter a letter informing her that she was suspended because she had been charged with second-degree murder and may have engaged in “gender-based misconduct.” McCarter challenged the suspension and was reinstated in November. Columbia declined to comment.

Meanwhile, she has been volunteering by phone with a New York City program that provides hotels for people who are otherwise unable to quarantine. Because she is not allowed to leave her apartment, she communicates with her family mostly through FaceTime, though they visit her at home as well. In March, McCarter got to meet her granddaughter, Olivia Renee, who was born while she was incarcerated at Rikers.

“You hear about the injustice of the justice system, and it’s something that I don’t think you can really understand the gravity of the injustice until it touches you personally,” Robbins told The Intercept. “And it being my own mother, who I know is not capable of second-degree murder, it was kind of sobering because it really sank in that the truth is not really what they’re seeking to find.”

Left/Top: Tracy McCarter pets Snuffles, her 10-year-old dog. Right/Bottom: McCarter laughs during a FaceTime video call with her family on May 2, 2021, in New York. Photos: Elise Swain/The Intercept

McCarter and her attorneys are now awaiting a ruling on whether the New York Supreme Court will dismiss the indictment on the grounds that prosecutors did not present key evidence of Murray’s abuse to the grand jury for it to consider. Under New York’s criminal code, prosecutors are supposed to present evidence that could “materially influence” the grand jury’s decision. In practice, this discretion has meant that prosecutors seldom present mitigating evidence.

“It’s exceedingly rare to review a grand jury presentation after the fact and see that they actually presented exculpatory and mitigating evidence,” said Sergio De La Pava, legal director at New York County Defender Services. “It’s an area prime for abuse.” A judge deciding to dismiss an indictment because evidence was left out of a grand jury is equally as rare, he said.

The prosecution responded to the motion to dismiss by arguing that there was no evidence that Murray was acting violently toward McCarter on the night of his death, so “any prior history of violence toward the defendant or otherwise is irrelevant” to the grand jury.

Last month, McCarter’s lawyers made another request, asking a judge to invalidate the search warrants on McCarter’s home and belongings. They argued that the prosecution had made “numerous false or misleading statements” to obtain the warrants whose findings they used to bolster their prosecution of McCarter. Perhaps the most damning, they said, was the prosecution’s reliance on a statement from an officer who said McCarter told her, “He was taking my purse, and I stabbed him in the chest.” The statement was not recorded on any of the officers’ body cameras, and McCarter’s lawyers said she never made it.

In response, the prosecution argued that “it is clearly not unreasonable for [the officer] to have believed she heard it or that it was said,” because McCarter had told police that Murray had tried to take her money and had reported to 911 that she had stabbed him. The prosecution also argued that the warrants could have been obtained without the statement, since there was enough evidence of McCarter’s involvement in Murray’s death to warrant a search.

Throughout the case, the prosecution has attempted to minimize the abuse that McCarter says she experienced and the role that it played in Murray’s death. Initially, prosecutors theorized that the stabbing was over money, citing the officer’s disputed statement about the purse. Prosecutors then pivoted to the narrative of McCarter as a spiteful wife because Murray was unfaithful to her in their open marriage. “At the time of the victim’s death, he was seeing other women, and the defendant was extremely jealous,” said Sullivan, the prosecutor, at an August hearing. “The totality of the evidence makes it clear that this is not a situation of self-defense and that there’s something more than that.”

In an April 2020 hearing, the prosecutor described the cellphone video McCarter took of Murray pulling her hair. “It’s not entirely clear from the video, but at some point the phone goes down, so you can’t see what’s happening.” She continued, “It’s quite possible he puts her into some sort of chokehold, but it would have been for a very short period of time.” (McCarter’s attorneys say that Murray choked McCarter off camera.) In that same hearing, Sullivan pointed to an email McCarter sent Murray’s father on the day of his death telling him that Murray had called her intoxicated to argue that McCarter was not serious about working on the relationship.

The prosecutor has also argued in court that the domestic violence was not one-sided, referencing an incident in which Murray called 911 saying that McCarter had struck him while in the shower. A police report from that day tells a different story. The report states that Murray, intoxicated and unable to stand, “is an alcoholic who had a relapse and an argument with wife at location…Verbal dispute. No physical injury.” Sullivan has also referenced text messages between McCarter and Murray in which McCarter told him that she pulled a knife on him because he had put her in a chokehold before and was afraid that he would do it again.

As the June 22 Democratic primary for district attorney nears, activists from Survived and Punished, a coalition supporting women criminalized for fighting back against their attackers, have thrust McCarter’s case onto the candidates’ radars. The group, which has not endorsed a candidate, has asked the candidates to drop the charges against McCarter if elected and to commit to not prosecuting survivors of gender-based violence.

Related

With a Crowded Progressive Field, Wall Street’s Candidate Gains Steam in Manhattan DA Race

The Intercept contacted all nine candidates — eight Democrats and one Republican — with questions about how they would handle cases of survivors fighting back against their abusers and got responses from eight of them. Their comments hint at what they might do if they took over McCarter’s case.

Dan Quart, a state assembly member, was the only candidate who said he will not prosecute survivors of domestic or sexual violence for defending themselves against their abusers. If elected, he’s planning to create a sex crimes and gender justice unit to investigate those cases.

Tali Farhadian Weinstein, a Wall Street-backed former prosecutor who most recently worked as general counsel for the Brooklyn district attorney’s office and is one of the race’s front-runners, told The Intercept, “Under my leadership, victims will never be treated as targets.”

Alvin Bragg, Eliza Orlins, and Lucy Lang said they would carefully scrutinize cases of domestic violence before deciding whether to prosecute, as did Thomas Kenniff, the lone GOP candidate for district attorney.

“I think it’s a mistake to ignore domestic violence and history and pattern of abuse, and that should be part of the decision of what happens whether you charge.”

Tahanie Aboushi, a civil rights attorney, was the only candidate who spoke directly about McCarter’s case. (The rest declined to do so, saying it would be inappropriate to comment on a case they might take over.) “What the Manhattan DA’s office did was completely isolated and cut out the abuse she suffered at the hands of her partner,” she said. “I think it’s a mistake to ignore domestic violence and history and pattern of abuse, and that should be part of the decision of what happens whether you charge.”

Elizabeth Crotty did not respond to a request for comment, and Diana Florence did not respond to questions about McCarter’s case.

The eight candidates who responded to inquiries from The Intercept said they would present evidence favorable to the defendant to the grand jury, a divergence from the way New York prosecutors tend to operate and a key issue in McCarter’s case.

“I think the practices of the grand jury are absolutely abysmal,” said Orlins, who is a public defender. “Something that would show a person accused of a crime is the victim of abuse themselves, certainly those things should be presented.”