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.

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.

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."

If Barbaro was biased against Kagan, Taub questioned why the trial transcript revealed that he had stricken testimony from Kagan where the defendant said he knew about guns because of his earlier ownership of guns.

If Barbaro wanted to assist Kagan, Taub said the best thing he could do is to write on Kagan's behalf when Kagan's case came before the parole board this coming November.

Referring to the stricken testimony, Mischel said Barbaro did that to avoid reversal. He reiterated that Barbaro thought at the time he was being impartial.

At one point in Wint and Kagan's fight, Kagan said, "you don't want none of this" a phrase that Barbaro would later say he misinterpreted as a threat.

Such a mishearing was "not such an unusual thing to happen," said Mischel. Taub, however said Barbaro interpreted the phrase correctly the first time.

Several family members of Wint watched the hearing. When it finished, Elisa DeJesus, Wint's aunt, questioned the judge's decision to come forward, which she called "mind boggling."

"Why only this case?" she asked.

Assistant District Attorney Leonard Joblove, chief of the office's appeals bureau, also appeared for the prosecution.

Jeff Adler of Adler & Karliner in Brooklyn also appeared for Kagan.

Barbaro could not be reached for comment Monday.

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