Brooklyn prosecutors on Monday bashed an ex-judge who came forward after 14 years to claim his own racial bias made him convict a white man of killing a black man — arguing the elderly judge was “confused” and just wanted to reverse his decision before he went to “meet his maker.”
At a hearing to determine whether convicted killer Donald Kagan, 39, should go free, get a new trial or finish his 15-to-life sentence, the prosecutors argued retired Brooklyn Supreme Court judge Frank Barbaro did not find Kagan guilty due to reverse racism — as the white judge testified in December.
“Was his testimony reliable and credible when he said his basis for his decision was racism? The evidence shows it was neither reliable nor credible,” argued Kenneth Taub, homicide bureau chief for the Brooklyn district attorney’s office.
The 86-year-old convicted Kagan of fatally shooting Wavell Wint, 22, during a struggle over a necklace outside an East New York movie theater in 1998.
“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 in December.
Barbaro said he contacted Kagan’s attorneys after some deep soul-searching led him to realize he had denied Kagan a fair trial. “I was prejudiced during the trial. I realized I made a terrible mistake and there was a man in jail because of my mistake.”
But Taub countered on Monday that Barbaro has regrets about the Kagan decision because he’s, “reflecting on his life” and preparing to, “meet his maker.”
Kagan’s defense attorneys argue Barbaro’s change of heart should overturn his conviction and spring him from prison.
“This is an elected judge of the state Supreme Court who has come forward and quite courageously spelled out what his biases were,” said Kagan attorney Richard Mischel.
Mischel insisted that Barbaro’s anti-white bias was so strong that at the time of the trial he wouldn’t have even made it through a jury selection.
“You know you would not have accepted him as a juror,” the lawyer told Judge Simpson.
Simpson said she would render a decision on April 11.