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

, New York Law Journal

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

After a two-day bench trial, Barbaro convicted Kagan on the murder count, along with criminal possession of a weapon in the second degree­. The weapons charge is not being challenged.

The pair's "final encounter was not about property, but about machismo. This court does not believe defendant was genuinely afraid of decedent; he was afraid of losing face," Barbaro wrote at the time in a six-page decision.

Now 39, Kagan was given a 15 year to life sentence on the murder conviction. His conviction and sentence were upheld on appeal.

In 2011, however, Barbaro approached the defense and later said in an affidavit he 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."

Barbara subsequently testified at a hearing in December on a motion to overturn the conviction.

On Monday, Taub reminded Simpson of her role in the current motion to weigh credibility and argued that Barbaro, when offering his recent testimony, was "neither reliable nor credible."

For instance, Taub said Barbaro now had a "hazy recollection" of the case's facts and Kagan's attorneys asked the, former judge leading questions at the hearing to get responses they were hoping for.

Mischel later rejected the idea that there was some sort of "script" between Barbaro and the defense.

Taub said Barbaro in 1999 could have announced his verdict without explanation and a lack of explanation could have made the prosecution's current opposition more difficult. But he said the case was benefited by a written ruling that offered a "thoughtful analysis of the evidence" and "legitimate reasons" to question Kagan's defense.

Taub said rather than having a bias in the case, a "more plausible explanation" for Barbaro's misgivings was his reflecting on his life as he prepares "to meet his maker" and having "second thoughts."

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