White judge says he sent a white man to prison because of racial bias

Posted at 3:39 PM, Dec 13, 2013
and last updated 2013-12-13 17:39:12-05
By Haimy Assefa


(CNN) — A former Brooklyn judge testified on Wednesday to ask that a man he convicted of murder 15 years ago be freed, saying he was racially biased during the 1998 trial.

Frank Barbaro, who is white, said he now believes his decision to convict Donald Kagan, also white, for the murder of an African-American man named Wavell Wint was a result of his “subliminal fight against racism,” he told CNN.

Barbaro was convinced that Kagan was racist and wanted to kill a black person, Barbaro said.

Wint was shot and killed outside a movie theater in the East New York neighborhood of Brooklyn when the two men got into a fight involving Kagan’s gold chain necklace, Barbaro said.

Barbaro said he gave little consideration to the self-defense argument presented by Jeff Adler, Kagan’s attorney, because he was blinded by his experience as a civil rights activist earlier in life.

The former judge was 18 years old when he became deeply involved in issues of racial inequality. His experience caused him to be “repulsed by racial discrimination against black people,” Barbaro said.

The former judge said he saw Kagan as a white man who “assassinated” an African-American.

In a nonjury trial, Barbaro convicted Kagan of second degree murder and criminal possession of a weapon, sentencing the man to 15 years to life.

In the years since the trail, Barbaro said he continued to revisit the case in his mind. He said he noticed a growing number of stories in the media about wrongful murder convictions, which caused him to further doubt his decision.

In 2011, Barbaro said he contacted Kagan’s attorney to express his doubt.

When Barbaro read the court transcripts, he said, it became apparent to him that he ignored undisputed facts that support Adler’s self-defense argument. Kagan tried to walk away from Wint twice during the verbal and physical altercation, Barbaro said.

As a result, Adler filed a motion to overturn the conviction in 2011, he said.

At the Wednesday hearing, Barbaro was questioned before Justice ShawnDya Simpson, Adler said.

A mix of emotions filled the courtroom as Wint’s family and Kagan looked on, Barbaro said.

Kagan, whom Barbaro described as being tall and husky during his 1998 trial, looked like a shell of his former self on Wednesday, Barbaro said.

“It wasn’t difficult to come forward,” said Barbaro, “it is painful to know I sent an innocent man to jail.”

Before retiring in 2003, Barbaro said he served as a judge for five years and previously was a member of the New York State Assembly for 24 years.

Barbaro said this experience has convinced him that the justice system is flawed and needs to be re-evaluated.

There have been 1,260 exonerations in the United States since 1989, according to the National Registry of Exonerations, which is a registry that tracks cases in which people are wrongfully convicted and later cleared.

Adler and Barbaro said they expect a decision from Simpson as early as January.

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