Black News and Black Views with a Whole Lotta Attitude
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Black News and Black Views with a Whole Lotta Attitude

Why Did it Take So Long to Dismiss Murder Charges Against Tracy McCarter?

In part three, The Root dives into the legal issues behind Tracy McCarter, a domestic violence survivor accused of murders, case in her epic final court battle.

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Judge Diane Kiesel (Left), Tracy McCarter (Middle), Alvin Bragg (Right)
Judge Diane Kiesel (Left), Tracy McCarter (Middle), Alvin Bragg (Right)
Photo: Ariel Robinson,Richard Drew, Mary Altaffer (AP)

[Editorial Note: Checkout Parts I & II Here, If You Missed Them] 

On the day Tracy McCarter’s trial was scheduled to begin, both sides gathered in the courtroom to hear if Judge Diane Kiesel would side with Manhattan District Attorney Alvin Bragg and dismiss the murder charges against Tracy. She’d shown little love for Tracy, the constant media attention, or the beleaguered District Attorney, who’d arrived in court for the first time in this case. Judge Kiesel was determined to say her piece today even if it meant dragging the DA down with her. And as the gavel banged, the entire courtroom waited with bated breath to see how she’d rule.

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“All rise,” bellowed the bailiff as Judge Kiesel marched up to her podium.

Minutes earlier, cameras flashed as Tracy McCarter strode down the marble hallway of the Manhattan Civil Courthouse.

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After Tracy sat onto the wooden benches, Judge Diane Kiesel wasted little time with judicial pageantry as she swept through the case history, only pausing to allow Bragg to speak.

“I wrote to the court that I still have reasonable doubt that Ms. McCarter committed murder,” said Bragg noting in his soft-baritone that the Judge alone had the power to dismiss the charges. “We respectfully request a dismissal.”

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Judge Kiesel’s face was placid as Bragg laid out his arguments for the dismissal, namely that Tracy was being abused by the deceased, there was only one fatal wound, and that Tracy had tried to perform first aid.

But as the Judge spoke, her words dripped with frost. “I’m afraid I’m a little confused,” quipped Judge Kiesel. “Do you intend to bring lesser charges?”

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Bragg stumbled over his words before sheepishly admitting that he did not have an answer at the moment. But Kiesel wasn’t done.

“No decision I have made has prevented you from doing with this case what you want,” Kiesel said curtly. It was as close to her saying, “don’t put this B.S on me,” as one could expect from a sitting court justice surrounded by reporters.

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Did Alvin Bragg Have The Power To Free Tracy All Along?

Here’s why it was also only sort of true.

A major issue in this case has been whether DA Bragg had the power to stop Tracy’s prosecution or whether New York law tied his hands.  

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In New York City, after the indictment period, the District Attorney does not have the power to dismiss charges, only a judge can do that. But that doesn’t make a DA powerless.

“The district attorney never has to try a case,” explains Jocelyn Simonson, a former public defender and current law professor at Brooklyn Law School. “It’s an essential aspect of our criminal system that prosecutors have the discretion to either bring a case or not bring a case to trial.”

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The District Attorney could reconvene a grand jury on lesser charges, they could file a motion to dismiss in “the interest of justice,” or they could decline to prosecute.

It didn’t matter that, technically, Judge Kiesel was the most powerful person in court that day. She was sick of being made out to be the bad guy, especially since District Attorney Bragg hadn’t exactly been pulling out all of the stops to get Tracy released.

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It had taken him until August to file a motion to get the charges dropped from murder to manslaughter and nearly a year to request an all out dismissal.

At any point he could have announced he was halting his prosecution and nothing in the law could have forced him to prosecute a case against his will.

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The fact that he didn’t make the decision to halt his prosecution earlier despite calling Tracy’s prosecution “unjust” was a choice, and Judge Kiesel was determined that day to make him stand by it.

Not Looking For Another Netflix Special!

It wasn’t just Bragg’s statements that struck a nerve with Judge Kiesel. The constant media attention was another thorn in her side.

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Judges are rarely fans of the press. But Kiesel had a particular bone to pick. Just as Tracy was assigned to her court, Kiesel was being portrayed by Debra Mooney on the Netflix television show, Inventing Anna.

Sorokin, better known to the world as Anna Delvey, had conned her way into the wealthy circles of Manhattan’s elite by pretending to be a German heiress before her mess caught up with her. Interest in Anna’s case had garnered Kiesel enough unwanted attention to last a lifetime.

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Being painted as someone who promotes locking up domestic violence survivors was also hardly the best look for her. Kiesel had banked her reputation on being an advocate for domestic violence victims. She’d written multiple books on the subject, oversaw the New York domestic violence court system, and even taught domestic violences classes down at New York Law School.

Still, she wasn’t going to back down to public pressure, at least not with over a dozen reporters buzzing around. “I’ll issue my response by the end of the week,” she announced, pounding her wooden gavel against the podium.

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In Part IV: We Meet The Activists Who Fought For Tracy’s Freedom