- A murder conviction against Donald Kagan is upheld by New York judge
- Judge in 1999 case shed doubt on the murder conviction he handed down
- He now says he was racially biased against the defendant, prompting review
A New York judge has upheld a nearly 15-year-old murder conviction despite a former judge's claim that his own racial bias caused him to wrongly convict the defendant, according to court documents.
New York City Criminal Court Judge ShawnDya L. Simpson ruled Wednesday that there was no evidence that former New York Supreme Court Judge Frank Barbaro acted with bias toward the defendant when the verdict was rendered.
The case was revisited after Barbaro, a longtime champion of civil rights, said he believed that he denied a fair trial to a white man who claimed he killed a black man in self-defense.
In a bench trial in October 1999, Donald Kagan said he was acting in self-defense when he shot Wavell Wint, 23, during a confrontation at a Brooklyn movie theater 11 months before.
"The evidence demonstrates that Justice Barbaro applied considerable effort in his deliberations and issued a written decision," Simpson said in the decision.
Simpson ruled that Barbaro's claims of bias and prejudice were "mere afterthoughts or second guesses."
Simpson wrote that was it troubling that it took Barbaro 13 years to "express his concern that he may have been biased and prejudice."
The verdict, she ruled, should only be vacated with "compelling and credible evidence that the fact finder acted improperly as a matter of law."
On the issues of Kagan's proclaimed innocence, Simpson wrote that Kagan failed to meet his "burden of establishing by clear and convincing evidence that he is actually innocent for the crimes he was convicted."
Barbaro, who is white, found Kagan guilty of second-degree murder and criminal possession of a weapon. Kagan was sentenced to 15 years to life in prison, where he remains today.
Testifying during a December hearing on a motion to set aside the conviction, the former judge said he was convinced at the time that the defendant who stood before him was a racist who wanted to kill a black person. As a result, Barbaro says, he ignored evidence that Kagan had acted out of fear and not hatred.
Barbaro, now 86, said in an exclusive interview with CNN this year, "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 was sort of haunting me."
Barbaro told CNN on Thursday that he is very disappointed with Simpson's decision.
"I believe she made a terrible error," he 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."
Kagan's lawyer, Richard Mischel, said he plans to appeal Simpson's decision.
"We believe in the merits of the motion, and we're going to proceed with an appeal as far as necessary to vindicate Mr. Kagan's rights," he said.
Mischel said that Kagan has a parole board hearing October 14 and that they plan to go ahead with the appeal, even if he is released.
"It's not just about getting him out of jail; it's about rectifying a wrong," Mischel said.