Retired New York judge admits bias, wants verdict thrown out

Donald Kagan
Donald Kagan

(CNN) — Now here is something that doesn’t happen in the justice system very often, a retired New York judge is admitting he made a mistake, and is holding himself accountable for a guilty verdict in a murder case he handed down almost 15 years ago.

He is asking for the conviction to be overturned, and tomorrow a new judge is expected to rule on whether to throw out the conviction.

Frank Barbaro, a retired New York Supreme Court justice, came forward in December without any pressure – at the age of 86 – to hold himself accountable for a guilty verdict he rendered some 14 years ago.

He says it was because of reverse racism that he unfairly convicted a man of murder in 1999 and gave him a sentence of 15-years-to life in prison.

Barbaro wants to right a wrong.

“I tried something in the area of 120 cases. i had no problem with them, none whatsoever. but this one began to bother me,” Barbaro said.

He’s asking that his verdict in a 1999 murder case be overturned.

Barbaro says he unfairly convicted a white man of murder because he saw the man as a bigot.

Donald Kagan, now 39, was accused of intentionally killing Wavell Wint, a 23-year-old young black father in 1998.

In lieu of a jury trial, Kagan chose to have his case heard in New York’s supreme court before Justice Frank Barbaro, who would be both judge and jury.

“He decided that he would get a fair shake with me,” Barbaro said.

It happened at a Cineplex in Brooklyn. Evidence presented in court showed Kagan, then 24 had come to the movies with an unlicensed and fully loaded gun.

Wint, the victim, came to the same show with friends. According to testimony, Wint had been drinking.

It was outside, after the urban drama “Belly” had let out, that the two, walking to their cars, crossed paths and got into a fight.

Words were exchanged. Kagan lifted his gun from his waist but put it back as Wint’s friends tried to pull Wint away.

They couldn’t.

Wint broke away and got right up in Kagan’s face.

Witnesses heard Kagan tell Wint, “you don’t want any of this.”

Wint didn’t back away and as Kagan reached for his gun, both struggled for it.

Then two shots.

The two bullets struck Wint in the chest and abdomen.

Barbaro rejected Kagan’s claim of self-defense and found him guilty of murder and criminal possession of a weapon.

“I couldn’t’ get out of my mind, the look on the lawyers 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,” Barbaro said.

Barbaro sentenced Kagan to 15 years to life in prison. But as he kept presiding over a full docket of cases, this one haunted him.

“This struck me because it was connected to the question of race. This was race,” Barbaro said.

Barbaro began questioning the guilty verdict he handed down

“Based on the testimony that came in, with the lens of my background. In other words. Kagan was a racist,” Barbaro said. “But I was wrong. He went to the house to get the gun because he was fearful.”

Barbaro’s wife Patti watched it all

“It was very painful for me to watch my husband, to revisit the case and say ‘I made a mistake,'” Patti said.

That was when Judge Barbaro picked up the phone to call the convicted murderer’s attorney.

“I was uncomfortable about doing it, but I knew I had to do it,” Barbaro said. “From his reaction, I think he was in shock because there was silence on the phone.”

The defense filed a motion to overturn the verdict and a ruling is expected from a new judge.

To have a judge argue he was wrong is almost unheard of. Barbaro himself came to testify in December, facing the man he sent to prison.

“I tried to go over to him after the hearing. I get chills when I think about it…and he looked at me, he was so angry,” Barbaro said.

After all those years the family of victim Wavell Wint, who had a four-year-old son when he was killed, came back to the courtroom outraged that Kagan’s conviction could be reversed.

“It’s not fair. My son grew up without a father, it’s not fair. He pulled out the gun and murdered that man,” Wint’s girlfriend at the time, Carmen, said.

“What I did to Kagan was a travesty. I didn’t do a travesty to the kids. And justice is a very strange person. Justice calls it like they see it,” Barbaro said.

Regarding the various outcomes from the new judge’s ruling: acquittal, retry the case, or let Barbaro’s 1999 verdict stand.

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