We often hear complaints and concerns expressed about how our legal system is broken, but recently a perfect example came home to roost when the family of Tracy Kanary created a petitioning campaign several days ago seeking justice for a second-degree murder conviction levied against Kanary on July 1st in Bay County that carried a sentence of 22 to 36 years in prison, which was more than the sentencing guidelines set for by the State of Michigan.
The facts of the case are relatively simple: Tracy Kanary defended himself against a drug-fueled vicious attack by a habitual violent criminal. The Attacker is recorded on surveillance video initiating the attack, punching Tracy in the head 10 to 12 times and putting him into a chokehold. Tracy escaped the chokehold and restrained the Attacker with a rear naked choke hold and began screaming for help. By the time police arrived, the Attacker had passed away.
Because he was the victim of this aggression, suffering a dozen hits in the head and a chockhold causing Tracy to fear for his life, this combination of events likely caused both traumatic brain injury and fight-or-flight syndrome to Tracy, both of which affects one’s ability to think rationally, causing Tracy to not realize how much time had passed.
Tracy was charged with Manslaughter, but the Bay County Prosecuting Attorney, Nancy Borushko, eventually increased the charges adding 2nd degree murder after friends of the Attacker circulated a petition requesting this. Tracy sat in jail for almost 4 years awaiting the 1st trial. The 1st trial resulted in a mistrial by a hung jury. In the 2nd trial, 1.5 years later, Tracy was found guilty of 2nd degree murder.
Judge Joseph K. Sheeran reasoned in his sentencing that what started as an act of self-defense became intentional murder, as Tracy should’ve known better than to hold the attacker in a rear-naked choke hold for 6 minutes.
The problem with the jury’s verdict and the judge’s reasoning, however, is that the Attacker was a known troublemaker, with a long criminal record including assaults, in and out of jail, with a cocktail of drugs in his system that likely contributed to his aggressive behavior at the time of the attack.
But the jury never heard this information, because Tracy was denied professional witnesses and the judge did not allow some of it.
How did this go wrong? Tracy, who was being represented by a public defender at both trials, was told by both that he wasn’t allowed various professional witnesses due to budget approvals or acceptance by the Court. This is contrary to the State of Michigan claiming they have the best indigent defense in the country, where public defenders are supposed to have the access to funding for professional witnesses.
With Tracy’s case there are several obvious professional witnesses that would have proved Tracy’s innocence, had they been allowed to do so.
A medical doctor specializing in brain injury could explain that head injuries can have a significant impact on an individual's cognitive function, including their ability to think clearly and make rational decisions. This is because head trauma can cause damage to the brain, disrupting its normal functioning.
Tracy reports he was told there was no budget to bring in a medical doctor as a professional witness.
A psychologist could have explained that when individuals are in a life-threatening situation, their psychological response is to engage in fight or flight behavior. This response is designed to help individuals protect themselves and survive the dangerous situation. However, this response can also lead to a state of hyperarousal, where the individual is unable to think clearly and make rational decisions.
Tracy reports he was told there was no budget for this witness.
A Pharmacologist could’ve analyzed the medicines and toxins found in the attacker's system, and the prescription pill bottles found at the scene, to determine the effects on behavior and aggression from drugs taken or recently stopping a drug, and how that combination of drugs could contribute to respiratory distress.
Tracy reports he was told there was no budget to allow this witness.
The addition of the Attacker's prescribing psychiatrist as a witness would’ve been crucial to the defense of Tracy. The testimony of the attacker's psychiatrist would have provided important information about the attacker's mental health, treatment history, and response to medications, which would’ve helped the jury to understand the extent to which the attacker's mental health and medications may have contributed to his aggressive behavior.
Tracy reports he was told there was no budget for professional witnesses.
A Martial Arts/Combat Expert would have testified that Tracy could not have known the threat was gone, even if he were in a rational state of mind. Tracy testified he did not realize the Attacker stopped struggling, but even if he did - it would have been a danger to himself and others to release him. Attackers, when overwhelmed, can play ‘possum’ and wait for the defender to drop their guard, so they can surprise attack and finish the job.
The Judge did not allow this witness.
The Parties Involved
We are not publicizing the Attacker’s name for the privacy of his family; though his name, his criminal record, and the toxicology report introduced at the 1st trial are all public record.
The Attacker had an extensive criminal record:
Felony larceny of a building (2 counts)
Misdemeanor malicious destruction of personal property - Less than $200
Felony assaulting/resisting/obstruction of a police officer
Felony larceny of building (2 counts)
Felony breaking & entering with intent
Felony possession of controlled substance (Cocaine, Heroin or another narcotic) less than 25 grams
Misdemeanor stolen property receiving and concealing - $200 or more but less than $1,000
Felony Jails - Prisoner possessing contraband
Misdemeanor assault and battery (2 counts)
Felony Stolen property receiving and concealing - $200 or more but less than $1,000
While it is unfortunate that the Attacker had violence and drug problems, Tracy, his family and friends are all still saddened by the loss of his life. We all wish the incident never occurred.
Who is Tracy Kanary?
Tracy was born in 1968 in Saginaw, MI. He had a rough childhood, disconnected from his own father, and the recipient of substantial mental and physical abuse by various other males that should’ve been role models for him as a child.
Tracy found healthy role models in his teen years and discovered discipline that led him in a positive direction through the remainder of his teenage years, which kept him free of any drugs or alcohol.
Tracy then moved to Florida, where he eventually became a bounty hunter, assisting law enforcement in bringing criminals to justice. During this career, which was dangerous and stressful, Tracy began to use and later abuse alcohol. This began a downward spiral as Tracy’s alcoholism got worse. Tracy eventually moved back to Michigan, and repeatedly sought help for his alcohol addiction disease that he struggled with.
Eventually Tracy was successfully dry for months, but voluntarily checked himself into the halfway house to demonstrate to friends and family he was completely dry.
It was at this halfway house where the attack and unfortunate outcome of events occurred. Tracy was pleading and screaming for help throughout the time he was restraining the Attacker and waiting for help to arrive.
Why was a halfway house unsupervised, allowing this incident and unfortunate outcome?
An innocent man found guilty of 2nd degree murder
Tracy did not intend to kill the Attacker, and did not realize how much time had passed while he was restraining him, due to fight or flight syndrome and traumatic brain injury. It should not even be considered a negligent act, since Tracy was afraid to release the Attacker, fearing for his life if he did, that the Attacker might finish the job and kill him.
It should concern every citizen if and when a prosecutor pursues a guilty verdict and a greater sentence over justice. It is already a miscarriage of justice that the expert corroboration of Tracy’s story was not allowed to be told to the jury.
Given this scenario and equally important is the lack of precedence and lack of evidence for justification that the Prosecuting Attorney would advocate for such a harsh sentence, which was greater than the sentencing guidelines set forth by the State of Michigan.
Why Were Professional Defense Witnesses Not Allowed?
The REVIEW reached out to The Michigan Indigent Council who touts the notion that Michigan has the best indigent rights protection in the country to ask why a professional witness was not afforded for Tracy on such a serious case, and we also reached out to the Bay County Public Defender’s Office - neither of them returned our calls.
The family claims they were told there was no money in the budget for professional witnesses, and if they pooled up money to obtain one it would cancel his public defense and he would have to hire a private attorney.
One criminal defense attorney we spoke to off the record said these serious cases such as Tracy’s are not getting the funding for professional witnesses because anyone with a misdemeanor charge is now getting a court appointed attorney without bothering to verify people’s income.
What’s Next?
The Judge has been asked to reconsider his sentencing or to declare a mistrial on August 26th, 2024.
It is the family’s prayer’s that the prosecuting attorney will advocate for a substantially lower sentence and that the judge will reconsider his ruling and declare a mistrial or order a substantially lower sentence.
Currently the family is circulating a petition to the request the judge to reconsider this miscarriage of justice and in less than a week have received 775 signatures as we publish this article.
Tracy has already served enough time for an accident arising from the act of defending himself, so if you would like to add your signature to this petition, please visit this link: https://www.fortracy.com/
info@review-mag.com
989-780-4162
Aug 07, 2024
Comments (4)
Marci Woods
1724803903
Motion denied!! I'll pray that he accepts responsibility for his actions and that God take mercy on his soul for what he did. What he did was "MURDER" a defenseless unconscious man. Tracy was the aggressor and subdued his opponent in a matter of seconds and straggled him to death. More than 6 minutes of cutting off his blood flow to his brain and not allowing him to take a breath. He rendered him unconscious in 27 seconds. 6 more minutes of strong arm choke holding him from behind, as he pinned him to the floor in a frog position, and all of his body weight on top of him. Tracy had 3 and 1/2 years to prepare his defense for the first trial plus another year to present his evidence for the second trial. 2 weeks prior to the second trial he fired his attorney. He lied on the stand and in body cam footage 7 times. Oh wait, you didn't even know him to be present in the first trial. My understanding is that you are a medical professional and know that Tracy's actions were wrong and absolutely unnecessary. He took the life of another human being deliberately and without remorse. Guilty is as guilty does. Let my family grieve in peace, and please move on. Not one of us have done anything to you, your friends, or family. Tracy took our loved one off this earth forever! I don't claim to know him as a person, but I did meet him in person the week before this happened. My nephew was a good person. He had his struggles with substance abuse in his past, but was a kind person and would help anyone who needed it. As a matter of fact, he was helping Tracy on a side job when this happened. I took them money for snacks and smokes the week before. Gene's autopsy proved the he was completely clean of substances and all his medications were within therapeutic value as prescribed. To claim he was a drug fueled "attacker" is a lie, by Tracy and you both. Bottom line is, Tracy could have just stopped straggling him and chose not to. Instead he killed a defenseless man and took him from his entire family! 😭😭😭
Marci Woods
1724803903
Motion denied!! I'll pray that he accepts responsibility for his actions and that God take mercy on his soul for what he did. What he did was "MURDER" a defenseless unconscious man. Tracy was the aggressor and subdued his opponent in a matter of seconds and straggled him to death. More than 6 minutes of cutting off his blood flow to his brain and not allowing him to take a breath. He rendered him unconscious in 27 seconds. 6 more minutes of strong arm choke holding him from behind, as he pinned him to the floor in a frog position, and all of his body weight on top of him. Tracy had 3 and 1/2 years to prepare his defense for the first trial plus another year to present his evidence for the second trial. 2 weeks prior to the second trial he fired his attorney. He lied on the stand and in body cam footage 7 times. Oh wait, you didn't even know him to be present in the first trial. My understanding is that you are a medical professional and know that Tracy's actions were wrong and absolutely unnecessary. He took the life of another human being deliberately and without remorse. Guilty is as guilty does. Let my family grieve in peace, and please move on. Not one of us have done anything to you, your friends, or family. Tracy took our loved one off this earth forever! I don't claim to know him as a person, but I did meet him in person the week before this happened. My nephew was a good person. He had his struggles with substance abuse in his past, but was a kind person and would help anyone who needed it. As a matter of fact, he was helping Tracy on a side job when this happened. I took them money for snacks and smokes the week before. Gene's autopsy proved the he was completely clean of substances and all his medications were within therapeutic value as prescribed. To claim he was a drug fueled "attacker" is a lie, by Tracy and you both. Bottom line is, Tracy could have just stopped straggling him and chose not to. Instead he killed a defenseless man and took him from his entire family! 😭😭😭
L G
1723146053
Tracey is saddened by the loss of his life, but walks into a court room smiling. Maybe we should bring up his criminal history too.
Gigi Star
1723148289
Tracy showed no remorse, or apologize to the family. Complete narcissist.
Julie Lay
1723291828
I lived with a narcissist for almost 20 years, my brother Tracy is definitely not narcissistic! You think you can diagnose someone from a facial expression? If you say you say you are out for justice and not retribution then WHY would you oppose professionals coming in to explain the *science* of why he would be unable to think clearly after all those hits to the head? Everyone that knows Tracy knows he would never harm someone just to harm someone. You’ve been in the same room with him for hours and days where he was under tremendous pressure, I’ve known him my whole life. Tracy’s criminal record is all alcohol related. He did have a problem with alcohol, but he has been dry for over 5 years now. Tracy never did any drugs.
Gigi Star
1723143356
I am assuming that you did NOT see the video. This article is complete bull! Tracy himself has an extensive criminal history. He served less than 3 years, then was out for 1.5 years. Upon retrial a jury of 12 convicted him in less than 2 hours. Tracy is a black belt martial artist, who would know what his actions would cause! He was NOT hit 10-12 times or put in a choke hold! His victim didn't have a chance and was rendered unconscious in less than 2 minutes and held for over 6 minutes. Tracy IS NOT innocent! Watch the video, and look up his criminal history!
Gigi Star
1723143754
His victim did NOT have unprescribed drugs in his system. The medical examiner confirmed this, although, Tracy did not have his blood tested. The criminal history on the victim was mostly as a juvenile. Please check your facts on this case. Tracy is a danger to society.
Marci Woods
1723154948
MW
Marci Woods
1723156114
This is a very personal case to say the least. I challenge Mr. Tracy Kanary to put his complete criminal history on here for all to see and let the public in on who and what you really are. My nephew had a history and hardships that he was not proud of, but he worked hard to turn his life around for the greater good. You not only took his opportunity to prosper, but you literally took his ability to live and breath. This article
Marci Woods
1723157343
Let's bring a few things to the forefront about this case. Mr. Kanary was not tested for substances upon his arrest which is very unfortunate. (Absolutely could have been under the influence of substance) The victim however, was most definitely tested after his death. He was examined by a very well respected and extremely experienced pathologist. The medications that were in the system of the "Attacker" were all within therapeutic value and "NO" other substances were in his body at the time of examination. So, the verbiage used in this article are not only inflammatory, but inaccurate.
Marci Woods
1723158423
Surveillance video showed that Mr. Kanary was not struck as many times as he claims(was it 10 or 12? Niether!) Nor was he ever restrained in a choke hold as he claims. From the very first swing toward him until Mr. Kanary completely subdued the individual was less than 45 seconds. He then rendered him unconscious in 27 seconds. He continued to keep him pinned to the floor, face down in a frog like position, with his full body weight on top of his entire body,
Ryan F
1723159273
I'm sure it can be disputed how many times Tracy was hit in the head without hitting back. It seems all sources estimate a range in number of punches, including Tracy's testimony... so from one camera angle, it seems like an obviously opinionated matter. Does that change whether Tracy should've been allowed a professional witness to assess how these hits to the head would affect decision making and cognitive function? Multiple news sources confirm Tracy had injuries on his head. Even the judge acknowledge this at least began in self defense. Also, mlive reported Dec 2022 that Tracy was in jail for 1,262 days before the first trial so that is definitely not *less* than 3 years. I think a lot of people find it interesting if not concerning that it was a hung jury after deliberating for days the first time with 2nd degree murder set aside right away, but a dramatically different result in the retrial. Questions should be asked. Did the prosecutor modify her case in chief to purge parts that were exculpatory of 2nd degree murder by the 1st jury? If so, how did she know? Also why should any defendant accused of such a serious crime be denied professional witnesses that may corroborate his innocence?
Marci Woods
1723159560
He had the neck of his victim between his forearm and bicep choking him for more than 6.5 minutes while still pinned to the floor unconscious!I ask that those reading this to actually set an alarm for 6.5 minutes to realize how long that truly is. Keep in mind not only was he cutting off the blood flow to his brain(rendering him unconscious) he continued to cut off his air flow at his throat and remained on top of him not allowing him to expand his chest to take in a breath. 6.5 minutes! Unconscious in 27 seconds! Minute after minute he could have just stopped and he chose not to. The probability of brain death was at the 3.5 minute mark and he still chose not to release him. Riddle me this, how can anyone claim self defense against an unconscious individual?An unconscious person can not pose a threat to anyone!
Ryan F
1723160518
You should really re-read the article. It clearly articulates how hits to the head can cause a loss in cognitive function. If you have a loss in cognitive function, medically, how can you be liable for decisions? How can he be acutely aware the the threat is gone? What if he was playing possum and got right back up and started attacking him again? How would he know? I understand you are grieving, but you are completely glossing over the fact that Tracy was brutally attacked and he was attacked by someone who was habitually violent. If you've ever been punched in the face, you would know your mindstate changes, instantly. You are also glossing over the fact that the first jury took days and wouldn't even convict Tracy of manslaughter. How is it possible that a guy who is yelling for help and for people to call the police was intending to kill? Seems like a bit of mental gymnastics to conclude that absolutely beyond any shadow of a doubt just with that fact alone.
Marci Woods
1723160938
June 22nd, 2019 was the date of this occurrence. Pandemic caused several delays prior to the first trial. Much time to prepare for trial and ask for expert witness' . Defense did not! Prosecutor followed with the same charges for the second trial. Nothing was set aside from the first trial. Anyone that may have experience with being on a jury or talking with a jury member after the fact
Marci Woods
1723161727
May realize that it only takes one individual to cause a mistrial. This we learned to be so. Mlive reporting was terrible in my opinion. Printing half truths and were not even present for the second trial at all. There were other unforseen delays allowing more time for defense to ask for experts and only a couple weeks prior to the second trial is when they asked. Timing and funds may have definitely played a part, but Mr Kanary also caused delay
Ryan F
1723161925
Did you not see I was asking questions about the prosecutor? It is up to her to set any charges aside. And it says right there he asked his lawyers"Tracy, who was being represented by a public defender at both trials, was told by both that he wasn’t allowed various professional witnesses due to budget approvals or acceptance by the Court." You may not care that he was not allowed professional testimony because you seek retribution, but this is all of our justice system, and given the number of signatures on his petition, a lot of people agree, he should have been provided the professional witnesses for such a serious charge. You say your family member had turned his life around, but yet the last thing he did was attack someone violently. Clearly, you don't want to be objective about this. I understand this is personal for you and you are unlikely to see it any other way, regardless of what any expert may say about what facts can be agreed upon in this case. So with that, I will just say - I am sorry for your loss. I hope you find peace. Shalom.
Marci Woods
1723163107
If you view the video several swings did not even connect with Mr. Kanary at all. He subdued him is seconds. He was completely lucid when public safety arrived. 6.5 minutes my nephew never moved, NOT ONE TIME! Yet, in body cam footage following, Mr. Kanary said that he moved several different times including, that he tried to get up. "so I put it on him again" 7 times he blatantly lied about what occurred. Creating his own narrative in the moment.
Ryan F
1723164196
Marci - what is NOT relevant is that several swings did not connect. What IS relevant is quite a few DID connect. In fact, Tracy had injuries on his face, so we know there are swings that were connecting. Your opinion of how lucid you felt he was is completely different than a medical doctor that specializes in brain injury giving their opinion on the matter. I hope you find peace, but it probably won't be here arguing on the internet that Tracy didn't deserve to have a professional witness, especially if you aren't being honest with yourself and continue painting your nephew as reformed, when his last actions proved he wasn't.
Gigi Star
1723164667
Why didn't Tracy seek medical attention for his "Traumatic Brain injury"? Why didn't his years of martial arts training become clear? The victim was walking away when Tracy pursued him, causing the victim to feel threatened. Tracy isn't the innocent he is claiming . There is also more to the "Tums" story. I personally believe Tracy was taking another med from the victim that caused the confrontation. He was treated and released, no issues. 12 jurors saw the evidence and convicted him in less than 2 hours. Where is his toxicology?
Gigi Star
1723165541
This article is also very one sided, given from the perspective of the murderer. He can give his story, but the victim cannot. There was also a video and a witness, and police cams that don't fit Tracy's narrative. On the hung jury, there was only 1 juror that wouldn't convict, so 1 out of 24 jurors. Not a very good stand to take. Of course people are going to think he got a Bad deal, the way this article is written, all Tracy's narcissistic ego, not facts.
Gigi Star
1723165850
On a side note, the jury could have chosen a lesser charge of manslaughter.....and DIDN'T
Gigi Star
1723165858
On a side note, the jury could have chosen a lesser charge of manslaughter.....and DIDN'T
Marci Woods
1723166810
I want to be clear, regardless of my relationship to this case, this has nothing to do with retribution, it's about justice! Yes, Mr. Kanary did remain incarcerated for 3.5 years prior to the first trial on a $500,000.00 cash bond. Because of the seriousness of the charges. Yes, that bond was lowered after the mistrial and he was released on Dec. 8th, 2022. This gave him much time to prepare his defense and just a couple weeks before the second trial is when he asked for an expert witness. When it wasn't permitted because of timing and/or funds, he then fired his court appointed attorney delaying things again. Everyone has a right to a defense, but the evidence presented proved to a jury of his peers that he was guilty beyond a REASONABLE doubt! He may not of had an expert witness , but did present as part of his defense the very points the he mentions in this petition/article. He was still found guilty! He knows exactly what he did and so does God. I'll pray for him.
Ryan F
1723167011
The thing about TBI is, you aren't usually aware when it is impacting you since it affects your cognitive function. The point of the article was that Tracy's side of the story wasn't told because he wasn't allowed professional witnesses. Of course, it's showing his perspective, especially if that perspective wasn't told to the jury. You are glossing by that the first jury set aside 2nd degree right away. And they didn't even get to hear the professional witnesses Tracy was requesting. The judge didn't say Tracy shouldn't have provoked the fight at sentencing, instead he acknowledged that it at least started in self defense. Implying Tracy was justifiably attacked because your family member "felt threatened" is spin, plain and simple. I understand why you would spin it, but you have to understand that most people wouldn't agree he was justified in attacking Tracy.
Marci Woods
1723168401
The duration of which he held him, both unconscious and not breathing at all, was way beyond any type of self defense. Laying opossum is the spin.The video shows that.
Ryan F
1723201888
Marci this is why the medical doctor is so critical in this case to explain what happens in the short term (and sometimes long term, accumulatively speaking) I know you want to rewrite history like your nephew did nothing wrong and Tracy is evil incarnate
Ryan F
1723202134
But the truth is, none of this would have happen if he didn't viciously attack Tracy. Denying Tracy a medical doctor so that it can be explained what happens cognitively after getting hit in the head, or a psychologist to explain what happens to your thinking when you enter a state of hyperarousel from fight or flight, is just obstruction of factual matters. But no it's not spin, that law enforcement or veterans with hand to hand combat experience could absolutely explain how hard it is to know the threat is over in the heat of the moment, especially when aggressors can play "possum" after the tables have turned.