Liberal Judge Admits Wrongly Convicting White Defendant Because of Racism

He said he had been biased against Mr. Kagan because he was white and the victim was black.


It's a belated act of honesty. If the races were reversed this would be front page news.

Retired Brooklyn Supreme Court Judge Frank Barbaro wants a white man he convicted in 1999 of killing a black man to be freed — claiming Wednesday he based the verdict on his own reverse racism. The 86-year-old former jurist convicted Donald Kagan, now 39, of fatally shooting Wavell Wint, 22, during a struggle over Kagan’s chain outside an East New York movie theater in 1998.

During the trial and sentencing, the judge had made it plain he did not believe Mr. Kagan’s argument that he had acted in self-defense when he shot Mr. Wint.

Mr. Wint, 23, died in a struggle with Mr. Kagan outside a movie theater on Linden Boulevard in Brooklyn on Nov. 4. 1998. Evidence presented at the trial showed Mr. Kagan, then 24, had gone to the movies with an unlicensed pistol in his belt. Mr. Wint also went to the show with some friends and had been drinking heavily.

After they left the film — a showing of Hype Williams’s hip-hop movie “Belly” — the two got into a fight. Mr. Kagan said that Mr. Wint had tried to rob him of his gold chain, so he flashed his gun. Mr. Wint’s friends pulled him away but he broke free and approached Mr. Kagan a second time. As they argued, Mr. Kagan pulled his gun again, and Mr. Wint grabbed it. Two shots hit Mr. Wint in the chest and abdomen.

He got a transcript of the trial, during which Mr. Kagan had waived his right to a jury and put his fate in Judge Barbaro’s hands.

“As I read it, I couldn’t believe my eyes,” the former judge said in an interview. “It was so obvious I had made a mistake. I got sick. Physically sick.”

Mr. Barbaro’s change of heart led to a highly unusual spectacle this week in a Brooklyn courtroom: He took the witness stand in State Supreme Court to testify at a hearing that his own verdict should be set aside.

His reason was even more unusual: As a die-hard liberal who had fought as a politician against racism in Brooklyn and weathered the race conflicts in Bensonhurst, he said he had been biased against Mr. Kagan because he was white and the shooting victim, Wavell Wint, was black.

But Barbaro told a court that, because of his viewpoint as a civil-rights activist, he didn’t consider a justification defense by Kagan in the nonjury trial.

“Mr. Kagan had no intent to kill that man . . . I believe now that I was seeing this young white fellow as a bigot, as someone who assassinated an African-American,” Barbaro, a former longshoreman who also served 23 years in the state Assembly, told Brooklyn Supreme Court Justice ShawnDya Simpson.

“I was prejudiced during the trial. I realized I made a terrible mistake and there was a man in jail because of my mistake.”

Barbaro said his work during the civil-rights movement fed into his bias in the trial.

“The question of discrimination against African-American people became part of my fiber — my very fiber,” he told Simpson.

Kagan, who apparently had been acting in self-defense, though the case is so obscure that I had trouble finding anything on it, waived his right to a jury, believing that he would do better with a judge. He turned out to be very wrong.