The judge's conscience gnawed at him a little more every year after he retired from the bench. With every news article he read about a wrongful conviction, Frank J. Barbaro, the former Brooklyn judge and assembly-man, would return to a particular murder case in 1999 and question whether he had made the right decision to send a man to prison for fifteen years to life. Not long ago, Mr. Barbaro (85), decided to contact the lawyer for that defendant, Frank Kagan. Mr. Barbaro got a transcript of the trial, during which Kagan had waived his right to a jury and put his fate in Mr. 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". 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 diehard liberal who had fought as a politician against racism in Brooklyn and weathered the race conflicts in Bensomhurst, Mr. Barbaro said he had been biased against Kagan because he was white, and the shooting victim. Wavell Wint, was black.
"I believe now that I was seeing this young, white fellow as a bigot, as someone who assassinated an African-American", Mr. Barbaro testified before Justice ShawnDya L. Simpson. He added: "I was prejudiced during the trial". Barbaro's statement, reported in The New York Post has re-opened a case that had seemed airtight and put in question a verdict that had survived an appeal in 2004. Experts on appellate law said it was highly unusual for a judge to try to overturn his own verdict, much less admit a bias, and it raised unusual legal issues, akin to when a juror is found after a trial to have a hidden prejudice.
"I have never heard of this happening before, and I have been doing this a long time", said Richard Greenberg, the lawyer in charge at the Office of the Appellate Defender, which was not involved in the case. Relatives of the victim, Wint, however, said they were stunned that Mr. Barbaro had changed his mind. During the trial and sentencing, the judge had made it plain he did not believe Kagan's argument that he had acted in self-defence when he shot Wint.
"We think it's ridiculous what's going on", Carmen De Jesus, the Mother of Wint's son, said. "After so many years, they are going to bring all this back?" Wint (23) died in a struggle with Kagan outside a movie theatre on Linden Boulevard in Brooklyn on 04th November, 1998. Evidence presented at the trial showed Kagan (then 24) had gone to the movies with an unlicenced pistol in his belt. Wint also went to the show with some friends and had been drinking heavily. After they left the film - a showing of Hype Williams' hip-hop movie Belly - the two got into a fight. Kagan said that Wint had tried to rob him of his gold chain, so he flashed his gun. Wint's friends pulled him away, but he broke free and approached Kagan a second time. As they argued, Kagan pulled his gun again, and Wint grabbed it. Two shots hit Wint in the chest and abdomen.
Kagan was found guilty in October 1999 of murder and criminal possession of a weapon. A few years later, Mr. Barbaro retired, he found he could not let go of the case. "I began to have doubts", he said, "and the doubts grew". In 2011, he contacted Kagan's lawyer, Jeff Adler. Mr. Barbaro said that as he read the trial transcript, he came to believe Kagan's self-defence claims were valid.
"With these undisputed facts, I should have acquitted him", he said in the interview. "There was no way I could have found him guilty".
Generally, appellate courts in New York state have been unwilling to overturn verdicts when jurors come forward to express doubts. But a judge saying he made a mistake because he was biased raised different questions, according to another of Kagan's lawyers, Richard E. Mischel. "My contention is that by waiving a jury, you are not waiving your impartial jurist", Mr. Mischel said.
[Based on a news item published in New York Times News Service, written by James C. Mckinley Jr.]
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