On March 2nd, 2020, Tracy McCarter was in her Upper West Side apartment when her estranged husband, James Murray, rang her buzzer and demanded to be let in.
The two had separated in July 2019 after Murray, who is white, had repeatedly assaulted McCarter, who is Black, kicking, striking, and choking her. By the time of their separation, he had been in and out of rehab five times, and both his drinking and violence had escalated.
“I could not continue to put myself at risk,” McCarter told Gothamist about her decision to move out.
According to court documents, Murray was drunk when he asked to be let in, claiming he had locked himself out of his Airbnb apartment, leaving his wallet behind. Once inside McCarter’s apartment, she says he demanded money to buy more alcohol, then attacked her. In the process of defending herself, McCarter says she stabbed him once in the chest.
McCarter, who is a nurse at Weill-Cornell and was studying for her masters degree at Columbia University, called 911 and began administering first aid. When police arrived, they arrested McCarter. Murray died a short time later.
The following day, the 44-year-old appeared in arraignment court. The office of District Attorney Cy Vance Jr. requested that she be held without bail, arguing that even though she had been employed full-time at Weill-Cornell since 2014, she had previously worked as a traveling nurse and had family in Texas, making her a flight risk.
The pandemic had not fully hit New York City, though the first case of COVID-19 had already been confirmed in Manhattan.
In April, McCarter had another bail hearing. Despite the city's dire need for medical staff, the hospital’s confirmation that it was holding her job, and McCarter’s offer to wear an electronic monitor, a judge once again ordered that she remain at Rikers without bail.
Shortly after, the pandemic stopped court proceedings, including grand jury hearings. McCarter was held in an 11 by 6 foot cell though she had yet to be indicted.
McCarter has remained at Rikers for the past six months. During that time, both New York City and its island jail complex have seen explosions in COVID cases. McCarter has been fortunate to escape contracting COVID, but she chafed at being unable to utilize her nursing skills during the pandemic. “You just feel so helpless,” she said during a call from Rikers. “You know one more person would make a difference.”
(Because jail calls are recorded and reviewed by the district attorney’s office, McCarter did not discuss details of that night.)
On Rikers, McCarter said she put her nurse’s training to use, teaching the other women how to properly sterilize shared surfaces such as phones. At the same time, she noted that the Department of Correction made stemming the spread of the virus difficult. In the pandemic’s early days, officials removed hand sanitizer from the clinic. Detained people were initially issued one disposable mask for the entirety of their incarceration. (Now, they can trade their masks for new ones.) Some staff do not wear masks over both their mouths and noses—and some do not wear them at all.
“We’re a really vulnerable population and don’t have the power to say, ‘Don’t come near me without a mask,’” McCarter said. No one on her housing unit became visibly ill, though several women later tested positive for antibodies. As of September 3rd, correctional staff report no positive cases among people currently detained at Rikers, though 262 had tested positive earlier during their incarceration.
The intersections of abuse and incarceration have been gaining more attention. No national or even statewide data is kept on how many abuse survivors are imprisoned for defending themselves or being coerced into participating in a crime, but studies indicate that experiences of abuse are not uncommon among incarcerated women.
A 2012 report found that 77 percent of women in jails had previously experienced partner violence. A 2005 snapshot study of women entering New York’s prison system for homicide convictions found that two-thirds of women incarcerated for killing someone close to them had been abused by that person. Other studies have found that Black women experience domestic violence at a higher rate than white women, and are imprisoned at nearly twice the rate.
Leigh Goodmark, the author of Decriminalizing Domestic Violence and director of the University of Maryland’s Gender Violence Clinic, told Gothamist that women who use force against their partners tend to do so in the context of domestic violence. But, she added, “the law doesn’t particularly do a good job of understanding use of force in the context of domestic violence.”
Self-defense laws require that a person have a reasonable belief that they face imminent death or serious bodily harm and use a similar level of force. But in domestic violence cases, the context spans not only the immediacy of the moment, but the course of the relationship. In addition, women often use weapons to make up for the size and strength differential of a male abuser.
Battered Women’s Syndrome has explained victims’ inability to escape abusive relationships as a result of learned helplessness. “It suggests that women should be weak and meek and passive,” noted Goodmark, making it difficult for prosecutors and judges to see women who defend themselves as victims. In addition, women of color, particularly Black women, face deeply-ingrained stereotypes that they are angry and/or too strong to be victims of violence.
In New York, years of advocacy culminated in a law to consider the role of abuse in a person’s crime. In May 2019, the legislature and governor Cuomo signed the Domestic Violence Survivors Justice Act, enabling judges to consider a shorter sentence than state sentencing guidelines if abuse played a significant factor in the crime. But the Act doesn’t come into play until after a conviction (or plea bargain) and, so far, no judge has applied it at sentencing.
“You can’t wait until sentencing to consider abuse,” said McCarter, who is pleading not guilty. “It really comes into play in how we believe women’s stories.” McCarter won’t be able to tell her story at Thursday’s grand jury hearing because people who testify are not allowed to have counsel present unless they waive immunity, meaning that they can be prosecuted for anything they reveal in court.
In response to a request for comment, Vance’s office forwarded a copy of the criminal complaint, which notes that they are seeking an indictment for second degree murder. They also forwarded ADA Sara Sullivan’s remarks during a third bail hearing in August.
Sullivan argued that violence occurred on both sides, noting that Murray had once called police on McCarter for allegedly hitting him while he was in the shower. (The police arrived but made no arrests.) She also referred to a text message exchange in which Murray told McCarter, “You pulled a knife on me, I was nowhere near hitting you.” She suggested that McCarter may have been motivated more by jealousy than by fear because Murray had been dating other women. (Both court documents and McCarter say that theirs was an open relationship.)
Sullivan said that because McCarter had family out of state, a nurse’s salary and $60,000 raised by an online fundraiser created by her daughter—one of her four adult children—she would have no incentive to return to court even if she posted $100,000 bail.
Murray’s family declined to comment.
In a statement, McCarter’s attorneys said “the self-defense issues here are glaring.”
“The prosecutors in this case have been presented with independent, corroborated evidence from multiple sources that Tracy is a victim of repeated instances of domestic violence at the hands of the decedent, always during occasions when he was drunk, as he was on the night he died,” Sean Hecker of Kaplan Hecker & Fink LLP, Jacob Buchdahl of Susan Godfrey, and Jeffrey Brown of Dechert, wrote.
“This is not a murder case and Ms. McCarter does not belong at Rikers.”
That’s also the stance of Survived and Punished, a network that works with criminalized and imprisoned survivors of gender-based violence.
“With the advent of the #MeToo movement and in an attempt to repair his public image after failing to prosecute Harvey Weinstein in 2015, Cy Vance has done a lot to market himself as a survivor-centered prosecutor,” Survived and Punished member Samah Sisay said. “If Cy Vance actually stood with survivors, he would drop charges against Tracy.”
“I can’t help but wonder if I were white and Jim were Black if I would be here,” McCarter mused shortly before her last call was cut off. “It’s like I’m being punished because I tried to help.”