[Editorial Note: This is the fourth part of an exploration into the legal issues surrounding domestic violence survivor Tracy McCarter. Please check out Parts I, II, and III here if you missed them.]
By the time District Attorney Alvin Bragg announced his decision to end his prosecution of Tracy McCarter, outrage over the well-known domestic violence survivor’s case had reached a fever pitch.
Tens of thousands of New Yorkers—including prominent doctors, nurses, domestic violence survivors, respected domestic violence organizations, and celebrities—had thrown their support behind the #StandWithTracy movement.
Initially, there was no in-depth coverage of Tracy’s case outside of vague references to a stabbing on the Upper West Side in the New York Post back in March 2020. According to Siobhan Dingwall, a communications specialist and volunteer with the advocacy group Survived and Punished (which pushed for Bragg to drop Tracy’s charges), that’s typical of a case like Tracy’s—especially when they involve Black women.
“Sharing Tracy’s story in a way that centered her and her family, and made connections to the stories of other criminalized survivors, was critical early on,” says Dingwall.
Because this occurred at the start of the pandemic, it was hard to host the kind of rallies that would become more commonplace later on in the effort to free Tracy. Social media, op-ed, and letter-writing campaigns featured heavily in the group’s early efforts, and one of those social media posts caught the attention of reporter Victoria Law.
“I do cover criminalized survivors quite a bit, but usually I don’t cover them until after they’ve gone through trial and then imprisoned,” says Law. “Because most of the time their lawyers don’t want them talking to media.”
Tracy was still incarcerated at Rikers, so Law did the only thing she could: she wrote her a letter.
“I said, ‘Ms. McCarter, my name is Victoria Law. I write about these things... here’s my phone number. Feel free to get in touch,’” says Law. “I assumed I was just shouting into the void.”
But to her surprise, Tracy responded.
It started with phone calls once a month. They never discussed what happened the night Tracy was arrested; they mostly just chatted about the notoriously horrendous conditions at Rikers and how Tracy was holding-up. At this point, Law still wasn’t sure if she’d be able to write about Tracy’s story. Tracy’s lawyers were wary of these phone calls and hadn’t agreed to anything on the record. As time went on, Tracy stopped calling entirely. But while sitting on the beach at Coney Island the Friday before Labor Day, enjoying a beach read, Law got a call she wasn’t expecting.
“Survived and Punished reached out and said, ‘Will you cover this? Her grand jury hearing is next week,’” Law says. “And so I typed out a pitch to my editor on my phone sitting on the beach... and so that’s how I ended up writing the first [detailed] story about Tracy.”
Law didn’t know how big of a splash her initial article—published on Sept. 9, 2020—would make. The day after her story ran, several of the Manhattan District Attorneys race candidates had tweeted out her story, including Alvin Bragg:
The words would come back to bite him later, but at the time, he proudly tweeted, “I #StandWithTracy,” along with a link to Law’s article.
“All the men running for District Attorney wanted to signal, ‘Oh, we are going to treat domestic violence survivors differently than our predecessor,’” rationalizes Law, hinting at the unpopularity of the previous District Attorney Cy Vance, who indicted Tracy.
After Law’s article, the dam broke among national outlets. Days later, the Wall Street Journal ran a story with the punchy sub-headline: “As jailed New York City nurse awaits trial, some say law has ignored years of physical abuse by husband.” Shortly after the article was published, the District Attorney stopped fighting Tracy’s request for bail and she was released on electronic monitoring and remanded to her Harlem apartment.
Other news outlets noted the extent to which coverage of Tracy’s case was impacting the actions of the current and potential district attorneys.
Behind the scenes, the New York wing of Survived and Punished—who weren’t strangers to the press or the justice system—continued to push Tracy’s story to media outlets. For years, Dingwall had worked as a communications specialist. She’d had prominent roles working for the city of New York before deciding to work for herself. That experience came in handy when organizing the massive media campaign.
“Siobhan wasn’t going to let y’all forget [about Tracy],” jokes Janie Williams, an attorney, and volunteer with the core group of Tracy supporters Survived and Punished.
Part of what allowed them to be so unrelenting was that they weren’t beholden to anyone. They weren’t getting paid for their work (they all have day jobs), and none of them were after celebrity, explains Williams.
“Having been in other spaces where advocacy is what you’re paid for, and you’re accountable to a boss who’s accountable to a board or mayor or whoever,” said Williams. “We didn’t have that where we couldn’t say the truth.”
Media was only one part of Survived and Punished’s strategy, says Dingwall. The group “raised funds, made phone calls and sent emails to the DA’s office, participated in social media power hours, wrote op-eds, and so much more,” she says.
But to wage the kind of campaign necessary to get a District Attorney to drop second-degree murder charges, it would take more than a relatively small group of local volunteers, which is where Color of Change entered the picture. The well-known civil rights group had donated to Bragg’s campaign, but they’d also voiced their support for Tracy. At the time, it wasn’t a conflicting stance.
Bragg had tweeted his support of Tracy during the primary, but as time passed and his office continued their prosecution and, worse, continued to fight against her requests for bail, the tables turned. At that point, Color of Changes had no choice but to hold his feet to the fire.
“We worked with Survived and Punished... on our #StandWithTracy campaign for 10 months to hold Manhattan District Attorney Alvin Bragg accountable to dropping Tracy’s case when he became DA,” says Sakira Cook, Vice President of Campaigns for Color of Change.
The group took out an advertisement in the New York Times, produced videos about Tracy’s plight, and organized a petition that garnered over 21,000 signatures. (Color of Change did not disclose how much they spent on these efforts.)
Both Color of Change and Survived and Punished credit organizing—including the behind-the-scenes work from Tracy—with Bragg’s decision to drop the charges.
“Without the thousands of activists who showed support and without Tracy’s courage to share her story, Tracy would have likely faced an unjust sentence,” says Cook. “This is the part of the system we are trying to change.”
Law, who attended nearly every hearing, says she believes Bragg didn’t want to fight a challenging case in front of the public eye.
“Every misstep in a trial would have been scrutinized and covered,” says Law. “He would have been slammed from all sides had he continued.”
From the perspective of Emily Sack, a law professor at Roger Williams University School of Law, the case wasn’t a slam dunk in one direction or the other.
Before announcing he was dropping the charges, Bragg went on the record with the court stating he did not believe Tracy murdered Murray. The fact that if they went to trial, Bragg would be arguing for a murder charge he’d publicly denounced wouldn’t have looked great. But Sack says that Tracy would be facing a ton of bias against her if she went to trial.
“There’s a lot of gender and racial bias in the criminal justice system,” says Sack, who represented a domestic violence survivor in the 90s on murder charges. “But there’s specifically that bias in self-defense laws, which make it very difficult to successfully defend a battered woman.”
To claim self-defense in a case like this, you have to prove that the person believed their life was in danger and only used reasonable and proportional force to defend themselves. The fact that Tracy had a knife (although incredibly common in cases where abused women defend themselves) would have hurt her in a trial.
The difference between prison sentences handed out to men versus women is telling of the sort of gender bias Sack describes. According to the ACLU, the average prison sentence for a man who kills his female partner is two-to-six years. On average, women who kill their partners spend 15 years in prison.
“[The law] is built on a historical male paradigm of two men fighting each other,” says Sack. “The law is really not geared toward understanding that a woman in that would reasonably use some other type of force.”
Whether it was because of advocacy, media, Tracy, political maneuvering, or a shoddy case, Bragg officially declared the end of his prosecution of Tracy McCarter in November. A week later, Judge Diane Kiesel begrudgingly signed off on the decision.
“I must call an end to the prosecution,” announced Kiesel in her lengthy decision.“The Law that gives the Court power, in the end, leaves it powerless. The court finds no compelling reason to dismiss the indictment, but for the District Attorney’s unwillingness to proceed.”
Kiesel clearly felt the media, advocacy, and public pressure were responsible for Bragg’s decision, a point she emphasized by citing several news articles and advocacy campaigns in her decision. But at the end of the day, Bragg had left her with very little wiggle room. She could either drag everyone to trial and preside over a sullen, silent courtroom since Bragg would, in all likelihood, refuse to present a case, or she could drop the charges.
Naturally, she chose the latter.
For the people who’d fought to get Tracy’s charges dropped, the result was somewhat bittersweet.
“If the DA who ran on freeing [Tracy] becomes DA, and we still have to fight this hard to get him to do the thing he said he was going to do, then this system really is as bankrupt as we knew,” says Williams.