By Zachary Margulis-Ohnuma
After subjecting her to thirty-three months of living hell, the Supreme Court of the State of New York has finally, finally, finally dismissed the charges against Tracy McCarter, a battered woman whose husband died while he was attacking her.
Acting Justice Diane Kiesel’s opinion dismissing the case can only be described as grudging and follows the courageous decision last week of Manhattan District Attorney Alvin Bragg not to further prosecute. Much credit should go to Tracy’s extraordinary pro bono legal team whose spearhead was ZMO Law PLLC’s Tess Cohen (the team was led by outstanding defense attorney Sean Hecker and supported by a dream team from his firm, Kaplan, Hecker & Fink LLP, as well as attorneys from white-shoe firms Dechert LLP and Susman Godfrey L.L.P.—but Tess culled the evidence, knew the procedure, and, at the end of the day, scared off the DA by explaining to his office better than anyone else could why they could not prevail at trial).
In Judge Kiesel’s decision—available here—she describes the blind dance between the assistant district attorney on the one hand and what Kiesel derisively refers to as the “executive staff” on the other. While the assistant district attorney kept pursuing the case against Tracy—against the evidence, as the elected DA concluded and our office meticulously, repeatedly explained to the assistant, her supervisor and, with Tracy present, DA Bragg himself—the executive staff looked for ways to dispose of the case short of a murder trial. Although DA Bragg may be faulted for moving too slowly and listening too closely to his overzealous underlings, at the end of the day he came to the only just decision. And he did so with access to all the evidence, knowing what the jury would have heard, whereas the judge, who parrots sloppy, inaccurate claims made by the police and the assistant district attorney, had access to only selected portions that were on the public record.
Despite DA Bragg’s courage and careful sifting of the evidence, Judge Kiesel needlessly writes that there was an “appearance of impropriety” in his decision not to go forward. She even suggests he should have recused himself, as though he were unable to be objective simply because the case achieved such a high profile.
But the high profile was a direct result of the manifest injustice of prosecuting an abused woman who acted in self defense. It was quite clear that Bragg felt—correctly in our view—that the murder case could not be proven. In fact, having spoken to Tracy, I would suggest it was not even close. Despite multiple factual errors in Judge Kiesel’s account (the judge ignores bodycam footage from when the police came upon Tracy heroically trying to save her dying husband and misstates comments made that were or would have been recorded on that footage), Tracy’s account of what happened has never wavered. The forensic evidence backs her up.
Bragg was absolutely right. His job was to assess the evidence that his office brought to him and make a decision: did the evidence show proof beyond a reasonable doubt that Tracy intended to murder her husband? He concluded it did not. Bragg did his job.
I wish he had done his job a little sooner, but he had to consider to crappy advice from lawyers in his office and justify his decision to the bereaved family of the victim. Tracy paid dearly for Bragg’s indecision. Her life was on hold for years. She missed the birth of her second grandchild. Before Bragg took office, she spent seven months on Rikers Island during the height of the COVID pandemic.
But in the end District Attorney Bragg got it right. Tracy McCarter’s prosecution was a costly exercise in seeing justice prevail, thirty-three awful months later.