Former judge admits racial bias influenced possible wrongful conviction

December 17, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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A defendant serving 15 years to life may have been incorrectly placed behind bars by a judge who was aiming to right civil rights wrongs. Now, retired Brooklyn Judge Frank Barbaro has made an unprecedented announcement when he testified this month that his views on racism and his belief in correcting the stereotypes embedded in the criminal justice system may have influenced his decision to convict a white man for the murder of a black victim.

In 1999, Barbaro presided over the trial of Donald Kagan, who was accused of shooting Wavell Wint, an African-American man, outside of a movie theater. 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.

Kagan opted for a bench trial, having only the presiding judge — Barbaro — serve as judge and jury. During the trial, Kagan argued that Wint’s shooting was justified on account of Wint’s attempted robbery of Kagan’s jewelry. Unconvinced by the justification argument, Barbaro found Kagan guilty of second-degree intentional murder and sentenced him to 15-years to life behind bars.

Kagan’s attorney’s appealed the conviction, with the Appellate Division, 2nd Department, and the New York State Court of Appeals ruling that Kagan was legally and factually guilty of murder. With the majority of his appeals exhausted, Kagan’s trial attorney, Jeff Adler, was resigned to the fact that his client might spend a significant period of his life behind bars.

That is, until Adler received an unprompted call from Barbaro in 2011. Barbaro admitted to Adler that his sympathies in civil rights “influenced my analysis and evaluation of this case, and prevented me from being impartial.” Barbaro continued that he had “incorrectly framed the issue as being whether the [Kagan] was motivated in his actions by racism rather than…[Kagan’s] criminal intent.”

Almost 14 years after the conviction, Barbaro looked at the evidence outside of a racial context and viewed the trial record objectively, he stated to Adler. “I made a serious error in not dismissing the murder counts against ‘Kagan,’” Barbaro admitted.

“Like everyone else I was surprised,” Richard Mischel told the Brooklyn Daily Eagle. Mischel, who represented Kagan in his initial appeal, noted that the only word he could use to describe Barbaro’s actions is “extraordinary.”

Kagan’s attorneys have filed motions to vacate his murder conviction. The motion is currently before Acting Brooklyn Supreme Court Justice ShawnDya Simpson, and the next court date is scheduled for Jan. 30.

The Brooklyn Daily Eagle will continue to follow the Kagan case.