Court Grapples With Ex-Judge's Admission of Views on Race

, New York Law Journal


Former judge Frank Barbaro and mugshot of Donald Kagan
Former judge Frank Barbaro presided over the trial of Donald Kagan, inset.

Prosecutors and defense attorneys sparred Monday on how much weight should be given to the recently-confessed views on race of a former judge who convicted a white man for murdering a black man 14 years ago.

Donald Kagan is seeking to set aside a 1999 second-degree murder conviction based on revelations from the trial court judge, Brooklyn Supreme Court Justice Frank Barbaro, who, as a white man, now says his work in the civil rights movement and his resulting sympathies tainted the guilty verdict he imposed after a bench trial.

In 90-minute oral arguments, one of Kagan's attorneys, Richard Mischel of Mischel & Horn said Kagan's conviction had been "skewed by [Barbaro's] biases and prejudice," thereby depriving Kagan of a fair trial. If Barbaro had been a juror, Mischel said, he would have never survived the voir dire process.

Barbaro—a former longshoreman, labor attorney and assemblyman— testified about his perceived biases in December but did not attend today's hearing (NYLJ, Dec. 17). Mischel credited the judge at the hearing for "belatedly but courageously coming to fess up."

But just because the 86-year-old former judge now asserted that race unfairly colored his conclusions, Assistant District Attorney Kenneth Taub said "that can't be the end of the inquiry."

Taub, the chief of the office's homicide bureau, said Barbaro "doesn't have a racist bone in his body" and insisted the conviction, where Barbaro rejected Kagan's justification defense, was "even handed, scholarly" and supported by the record.

Mischel agreed that Barbaro was not fueled by racism, but said "that doesn't mean his thinking and his views of the case were not influenced by his experience."

Mischel said Barbaro thought he was being impartial but was applying a "social point of view" that contained "underdogs and underclass." In this case, Mischel said Kagan "represented the white ruling class."

The motion in People v. Kagan, 11177/98, viewed as an unprecedented post-conviction challenge, is before Acting Supreme Court Justice ShawnDya Simpson (See Profile). She is scheduled to rule on the matter on April 11.

The underlying case relates to the fatal 1998 shooting of Wavell Wint near a movie theater. Kagan and Wint became involved in a verbal altercation, and Kagan said he shot in self-defense when Wint tried to rob him.

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