- About Us
- Our Talent
- Our Work
- All Practice Areas
- Appellate Litigation
- Commercial Litigation
- Cybersecurity and Data Privacy
- Employment, Discrimination, and Sexual Misconduct
- FCPA and Anti-Corruption
- Investigations and Crisis Management
- Public Interest Litigation
- Regulatory and Securities Matters and Litigation
- White Collar Criminal Defense
- Contact Us
Murder Case Exposes Bail System’s Flaws, Advocates for Abuse Victims Say
September 24, 2020
Our client, Tracy McCarter, is a victim of domestic violence who has been unjustly detained pre-trial on Rikers for 7 months. Today, thanks to the tireless efforts of Sean Hecker and her team of lawyers, she will go free on bail. Read more below in The Wall Street Journal:
On the evening of March 2, a woman’s screams for help startled Rafael Fermin. Searching for the source, the building superintendent said he found a tenant, Tracy McCarter, in her New York City apartment’s narrow entryway crouched over a bloodied man.
Neighbors had already called 911, and authorities said they arrived to find Ms. McCarter trying to stanch the blood from a stab wound in the side of James Murray, her estranged husband.
Mr. Murray later died, and the next day the Manhattan district attorney’s office charged Ms. McCarter with murder.
Ms. McCarter, a 45-year-old nurse, has pleaded not guilty and claimed that she stabbed Mr. Murray in self-defense after he attacked her in a drunken rage and that he had physically abused her repeatedly during their seven-year relationship, according to her attorneys.
Prosecutors, citing the strength of the evidence and arguing Ms. McCarter was a flight risk, requested that she be held without bail and a judge agreed. She has been jailed at Rikers Island for more than six months.
Ms. McCarter’s legal team has fought to have her released on bail, presenting evidence of Mr. Murray’s violence and substance abuse and pointing out that Ms. McCarter’s employer said it would welcome her back to work. In addition to her job in New York, she is enrolled in a master’s degree program at Columbia University and has four children, none of them Mr. Murray’s.
Prosecutors were unmoved. “There’s no change in circumstances,” Assistant District Attorney Sara Sullivan said in August at a fourth bail hearing.
Days after The Wall Street Journal inquired about the case, the office shifted its stance. Citing the “recent support and involvement” of the advocacy group Sanctuary for Families on Ms. McCarter’s behalf, the office agreed in court last week to request pretrial release to home confinement with electronic monitoring. Ms. McCarter will be interviewed by the sheriff’s office this week and if deemed eligible, will be fitted for a bracelet and released.
While it isn’t unusual for prosecutors to fight the pretrial release of a person charged with murder—the New York DA seeks remand in most murder cases—domestic-abuse experts say Ms. McCarter’s case reflects the legal system’s persistent and unjust failure to consider the totality of such defendants’ circumstances.
“Homicides are among our most serious cases, and decisions about bail are made carefully and through extensive conversations with supervisors at many levels throughout the office,” a representative of the district attorney’s office said last week.
“This case never looked like a murder case,” said her attorney, Sean Hecker, whose firm, Kaplan Hecker & Fink LLP, is representing Ms. McCarter pro bono. “It looked a lot like a case involving a victim of repeated prior instances of domestic violence.”
Under New York law, a judge can set bail or remand to custody a defendant for most violent felonies, including the second-degree murder charge Ms. McCarter faces—but must first determine whether the accused is a flight risk. If so, a person can be detained, and only by the least-restrictive conditions to assure a return to court, the statute says. Holding a defendant without bail—like Ms. McCarter—is the most restrictive detention option.
Prosecutors often ask for high bail or remand for violent-felony charges, according to Marc A. Levin, an attorney and founder of Right on Crime. However, he said, “In New York, a court can only consider risk of flight,” not factors such as public safety or prior arrests.
Ms. McCarter’s family has lent support, and she is willing to fight the charges, her lawyer said—factors that Mr. Levin cited as indicators that she is unlikely to flee.
Dozens of police, court, medical and personal records provided by the defense team and reviewed by the Journal reveal that Mr. Murray, a one-time accountant at JPMorgan Chase, had a history of violence when intoxicated. The first time he became physically abusive toward Ms. McCarter was when she confronted him about his drinking, her lawyers said, adding that the violence escalated in early 2017.
Email and phone records shared with the Journal by defense lawyers show that Mr. Murray’s parents knew about their son’s drinking and that he became violent. His mother declined to be interviewed for this story, but said: “He wasn’t a bad guy. He had a problem.”
The justice system has only recently begun to reckon with the traumatic effects long-term intimate-partner abuse can have on the victim. Years of advocacy persuaded lawmakers to start accounting for whether and why a victim believed lethal force against a partner was necessary.
New York Gov. Andrew Cuomo signed into law last year the Domestic Violence Survivors Justice Act, which permits more-lenient sentencing for crimes by victims of domestic violence. No state judge has yet applied it to a murder case.
Prosecutions generally focus on a specific act committed during a tight time frame, and when domestic violence is involved, that narrow lens leaves out too much, said Deborah Tuerkheimer, a professor at Northwestern Pritzker School of Law.
“It misunderstands the way abusive relationships can affect not just a moment in time, but all of the moments around that moment,” Ms. Tuerkheimer said. “One thing it misses is when someone who’s a victim of domestic violence kills in self-defense.”
Ms. Sullivan, the assistant DA, said last month that “the argument the defendant is a victim of domestic violence is not new.” Detaining Ms. McCarter without bail was “the least restrictive means to ensure the defendant returns to court,” she said.
Prosecutors acknowledged that abuse occurred but said that self-defense wasn’t Ms. McCarter’s motive. They noted that she and Mr. Murray were in “constant communication” at the time of the killing and asserted that “jealousy surrounded the relationship” because he was seeing other women.
Ms. McCarter’s lawyers said that she and Mr. Murray both dated others, and that she was angered not by the relationships but that he had used the meetings as an occasion to drink.
When Dorchen Leidholdt first read news accounts of the McCarter case, she said, she quickly spotted “a constellation of facts that should have raised significant concern that this was a case of self-defense.”
Ms. Leidholdt is director of the Center for Battered Women’s Legal Services at Sanctuary for Families, an organization that provides services for survivors of domestic and gender-based violence, and that helped assemble a pro bono defense team for Ms. McCarter in April.
On the day he was killed, Mr. Murray had gone to Ms. McCarter’s building, according to Mr. Fermin, the superintendent. “He was drunk and ringing every apartment to get inside the building,” he said.
Ms. McCarter returned home and allowed him upstairs, her lawyers said, in hopes he would sleep off his stupor and leave in the morning. But Mr. Murray began demanding money for alcohol, they said, and the confrontation escalated. When he lunged toward her, Ms. McCarter grabbed the nearest sharp object—a six-inch knife—to keep him at bay.
Prosecutors said the fact that Ms. McCarter has admitted to the stabbing strengthened the case for murder.
Ms. Tuerkheimer, the law professor, regards that approach to justice as simplistic.
“The conversation hasn’t yet evolved to recognize connections between domestic violence and our failed cultural and legal responses to it,” she said. “This is where you’d hope for greater understanding. We have to see that kind of movement for women to be treated justly in the criminal justice system.”
Read this article in The Wall Street Journal.
More news from our Newsroom
Published on: October 23, 2020
As part of São Paulo Arbitration Week, Kaplan Hecker & Fink LLP Special Counsel
Published on: October 22, 2020
Kaplan Hecker & Fink LLP founding partner Roberta "Robbie" Kaplan will be honored with a Gotham Greats Award this evening at Citizens Union's annual Gotham Greats Awards Dinner. Each year,... Read More
Published on: October 13, 2020
Kaplan Hecker & Fink LLP Partners Robbie Kaplan and Sean Hecker Recognized in Benchmark Litigation’s Top 100 Trial Lawyers List
NEW YORK, NY, October 13, 2020 – Kaplan Hecker & Fink LLP is delighted to announce that founding partner Roberta (“Robbie”) Kaplan and partner Sean Hecker have been recognized in Benchmark... Read More