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Brooklyn Appellate Court to hear appeal in case where ex-judge admitted race bias

March 19, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Justice Sylvia Hinds-Radix. Eagle file photo by Mario Belluomo
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A Brooklyn Appellate Court judge has granted a certificate of appeal allowing a criminal defendant the opportunity to appeal his conviction after the original judge admitted a race-based bias against the defendant during his trial.

The defendant, Donald Kagan, is currently serving a 15 years to life sentence for the fatal shooting of Wavell Wint, an African-American man, outside of a movie theater.

Associate Justice Sylvia Hinds-Radix, late last month, granted Kagan leave to appeal his denied motion to vacate and argue his case before the intermediate Brooklyn-based appellate court.

Kagan, who is white, had taken an unlicensed firearm with him when he went to a movie theater on Linden Boulevard in Brooklyn. Kagan asserted that Wint tried to rob him outside of the theater and that, in a self-defense struggle, he shot Wint in the stomach and chest. In 1999, now-retired Brooklyn Judge Frank Barbaro sentenced Kagan following a bench trial serving as both judge and jury.

Kagan exhausted nearly all of his appeals after the Appellate Division, Second Department, and the New York State Court of Appeals ruled that Kagan was legally and factually guilty of murder. 

But in the spring of 2011, Kagan’s trial attorney, Jeff Adler, received a call from Barbaro where the former judge admitted that his sympathies in civil rights “influenced my analysis and evaluation of this case, and prevented me from being impartial.” 

In sworn testimony, Barbaro stated that his views on racism and his belief in correcting the stereotypes imbedded in the criminal justice system may have influenced his decision to convict a white man for the murder of a black victim.

Kagan and his attorney argued to Acting Brooklyn Supreme Court Judge, Criminal Term, ShawnDya Simpson that the presiding judge’s admission warranted that Kagan’s conviction be vacated on the grounds that the jury (in the case of a bench trial, the judge) was improperly influenced, denying Kagan of his right to a fair trial.

Under New York law, generally a juror cannot impeach or retract a case verdict by admitting to his or her own misconduct during jury deliberations. The rationale behind the rule was to prevent jurors from being harassed upon the conclusion of a case. But, as Kagan’s attorneys have argued in motions to the court, a defendant is also entitled to an impartial jury.

In 2014, Simpson denied Kagan’s motion to vacate, ruling that the evidence supported Kagan’s conviction despite Barbaro’s supposed subconscious bias at the time, dismissing them as afterthoughts.

“Justice Barbaro’s claims of bias and prejudice are mere afterthoughts or second guesses,” Simpson noted.

Simpson did express concern about Barbaro’s post-conviction revelations, noting that the former Brooklyn judge should have been aware of his bias.

“The court is troubled that it took Justice Barbaro 13 years to come forward to express his concern that he may have been biased and prejudiced in his decision. Justice Barbaro should have been more aware of his biases and prejudices.”

But given the dangers of post-verdict admissions by adjudicators and Simpson’s conclusion that the facts supported the verdict, Simpson denied Kagan’s motion to vacate.  “An acceptance of the defendant’s argument could potentially turn every verdict on its head and subject the trier of facts to harassment and second guessing. This court is without discretion and the defendant’s motion to vacate the judgment must be denied.”

Kagan requested permission to appeal Simpson’s decision to the Appellate Division, Second Department. Under New York’s Criminal Procedure Law (CPL), a defendant does not have the automatic right to appeal a denial of a 440 motion to vacate a conviction. Instead, under CPL 460.15, a defendant must seek leave or permission from the appellate court to appeal his/her case further. Prosecutors, on the other hand, do have the automatic right to appeal a defendant’s granted 440 motion to vacate.  

Richard Mischel, named partner in the Manhattan firm Mischel & Horn, is serving as Kagan’s appellate attorney.



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