Bench-Trial Verdict Influenced by Bias, Ex-Judge Now Says

, New York Law Journal

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Frank Barbaro
Former Brooklyn Supreme Court Justice Frank Barbaro at a Dec. 11 hearing into a guilty verdict he reached after a bench trial but has now disavowed.

Fourteen years after a bench trial in which he convicted a white man of fatally shooting a black man, a retired judge now says he was influenced by his views on civil rights and racism to reach the wrong verdict. His acknowledgment has teed up a post-conviction challenge some observers are calling unprecedented.

After a two-day bench trial in 1999 arising from a late-night shooting near a movie theater, now-retired Brooklyn Supreme Court Justice Frank Barbaro rejected Donald Kagan's justification defense and convicted him of second-degree murder and second-degree criminal possession of a weapon.

"This court does not believe defendant was genuinely afraid of decedent; he was afraid of losing face," he wrote at the time.

Barbaro repeated his view before sentencing Kagan to 15 years to life in prison, saying he was "convinced in [his] mind after a good deal of soul searching, of reading the record and rereading the record again" that prosecutors made out the murder charge.

The Appellate Division, Second Department, affirmed the conviction in 2004 and the state Court of Appeals denied leave to appeal.

But in 2011, Barbaro—a former longshoreman, labor attorney, assemblyman and mayoral candidate—contacted Kagan's trial attorney, Jeff Adler of Adler & Karliner in Brooklyn, to say he was mistaken in his decision about the murder conviction.

"I had incorrectly framed the issue as being whether the defendant was motivated by his actions by racism rather than whether or not his criminal intent was established beyond a reasonable doubt or whether the People had disproved justification beyond a reasonable doubt," Barbaro said in an affidavit.

Barbaro, 85, who served on the bench from 1997 to March 2003, could not be reached for comment on Monday.

In a Criminal Procedure Law §440 motion, Kagan's attorneys acknowledged the state's law has "long been settled" that jurors cannot impeach their own verdict after the fact. But that prohibition was not relevant in this "atypical" case, they argued.

"By waiving his federally and State guaranteed rights to a trial by jury, foregoing the process by which bias and partiality are revealed, Defendant did not waive his right to an unbiased and impartial fact-finder," Richard Mischel of Mischel & Horn argues in People v. Kagan, 11177/98. Mischel, who represented Kagan in his initial appeal, and Adler are representing Kagan in these proceedings.

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