A New York judge upheld a 15-year-old murder conviction despite a former judge’s admission that his own bias caused him to wrongfully convict the defendant.  New York City Criminal Court Judge ShawnDya L. Simpson ruled that there was no evidence that New York Supreme Court Judge Frank Barbaro acted with bias toward the defendant when he convicted him during a bench trial.  Barbaro, a longtime champion of civil rights, has admitted that he denied a white man a fair trial when he claimed he killed a black man in self-defense.  In a bench trial in October of 1999, Donald Kagan said he was acting in self-defense when he shot Wavell Wint, 23, during a fight at a Brooklyn movie theater.

“The evidence demonstrates that Justice Barbaro applied considerable effort in his deliberations and issued a written decision,” Simpson said.

Simpson ruled that Barbaro’s admissions that he was biased were “mere afterthoughts…”  Simpson wrote it was particularly troubling that it took Barbaro 13 years to “express his concern that he may have been biased…”  The verdict, she ruled, should only be vacated with “compelling and credible evidence that the fact finder acted improperly as a matter of law.” Simpson wrote of Kagan’s innocence claims that he “[failed to meet his] burden of establishing by clear and convincing evidence that he is actually innocent…”

Barbaro, who is white, found Kagan guilty of second-degree murder and criminal possession of a weapon.  He sentenced Kagan to 15 years to life.  The former judge testified in December that he was convinced that the defendant was a racist at the time of the trial and that he ignored evidence that Kagan acted out of anything, but hate.

Barbaro, now 86, gave an interview to CNN earlier this year saying, “I couldn’t get out of my mind the look on the lawyer’s face when I said I found him guilty. And the defendant on the stand, like he was pleading to me, ‘It just happened, it just happened,’ and that [is] sort of haunting me.”

Of Simpson’s ruling, Barbaro said, “I think the facts were so clear. Judge Simpson didn’t give any credence to the fact that I said I made a mistake, and that’s very disappointing. It’s sad.”

Before handing out the denial, Simpson, who’s black, described her deliberations as “an emotional roller coaster” that gave her sleepless nights.  She had urged prosecutors to cut Kagan some slack, believing his verdict was too harsh, but they refused — leaving her with no options and a high burden for overturning a conviction.

“The facts do not establish the crime of murder in the second degree,” she said of the East New York incident where the victim, Wint had robbed the shooter, Kagan, “I say to you, Mr. Kagan, if I could do more, I would have, because it’s unfortunate that my hands are tied, constrained by the law.”

Kagan’s lawyer, Richard Mischel, said he plans to appeal, “We believe in the merits of the motion, and we’re going to proceed with an appeal as far as necessary…” Kagan has a parole hearing on October 14th.

“It’s not just about getting him out of jail; it’s about rectifying a wrong,” Mischel said.


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