Fourteen years after a bench trial in which he convicted a white man of fatally shooting a black man, a retired judge now says he was influenced by his views on civil rights and racism to reach the wrong verdict. His acknowledgment has teed up a post-conviction challenge some observers are calling unprecedented.
After a two-day bench trial in 1999 arising from a late-night shooting near a movie theater, now-retired Brooklyn Supreme Court Justice Frank Barbaro rejected Donald Kagan’s justification defense and convicted him of second-degree murder and second-degree criminal possession of a weapon.
“This court does not believe defendant was genuinely afraid of decedent; he was afraid of losing face,” he wrote at the time.
Barbaro repeated his view before sentencing Kagan to 15 years to life in prison, saying he was “convinced in [his] mind after a good deal of soul searching, of reading the record and rereading the record again” that prosecutors made out the murder charge.
The Appellate Division, Second Department, affirmed the conviction in 2004 and the state Court of Appeals denied leave to appeal.
But in 2011, Barbaro—a former longshoreman, labor attorney, assemblyman and mayoral candidate—contacted Kagan’s trial attorney, Jeff Adler of Adler & Karliner in Brooklyn, to say he was mistaken in his decision about the murder conviction.
“I had incorrectly framed the issue as being whether the defendant was motivated by his actions by racism rather than whether or not his criminal intent was established beyond a reasonable doubt or whether the People had disproved justification beyond a reasonable doubt,” Barbaro said in an affidavit.
Barbaro, 85, who served on the bench from 1997 to March 2003, could not be reached for comment on Monday.
In a Criminal Procedure Law §440 motion, Kagan’s attorneys acknowledged the state’s law has “long been settled” that jurors cannot impeach their own verdict after the fact. But that prohibition was not relevant in this “atypical” case, they argued.
“By waiving his federally and State guaranteed rights to a trial by jury, foregoing the process by which bias and partiality are revealed, Defendant did not waive his right to an unbiased and impartial fact-finder,” Richard Mischel of Mischel & Horn argues in People v. Kagan, 11177/98. Mischel, who represented Kagan in his initial appeal, and Adler are representing Kagan in these proceedings.
Mischel added in court papers that if Barbaro underwent the voir dire process accorded potential jurors, the defense would have been able to learn of his work in the civil rights movement beginning in the 1950s, prior to his becoming an attorney.
Noting the law “presumes” judges are impartial, the motion said, “Had these same sympathies been expressed by a prospective juror, a trial court’s decision to deny a challenge for cause and seat the prospective juror without the expurgatory oath would have been difficult, if not impossible to justify.”
Prosecutors in the Brooklyn District Attorney’s office are opposing the bid, saying Barbaro’s initial verdict followed a “careful assessment” of a case, but he “flipped his findings on all of the essential facts” years later.
“All Justice Barbaro’s recent awareness demonstrates is that he may have, unconsciously, taken his life experience regarding civil rights causes into consideration in deciding this case. But a trier of fact’s unconscious predispositions cannot furnish a basis for vacating a conviction,” said the prosecution.
It pointed to a 1984 state Court of Appeals case, People v. Williams, 63 NY2d 882, where the court said it “assume[d] that most if not all jurors bring some predispositions, of varying intensity, when they enter the jury box.”
Taking that line of argument another step, the prosecution continued, “It follows that when a judge is sitting as trier of fact, the judge does not lose impartiality simply by bring predispositions to the fact finding process.”
Though opposing the sought-after relief, the prosecution did not oppose a hearing, which occurred on Dec. 11. The motion is before Acting Supreme Court Justice ShawnDya Simpson and the next court date is scheduled for Jan. 30.
In an interview, Mischel, an attorney with extensive criminal appellate experience, said “in terms of law justifying this, I found nothing in New York that was similar to this… I have a feeling we’re wandering in uncharted waters.”
Mischel said it was “remarkable what the judge did.” Still, looking ahead to any possible future legal ramifications, he added, “I don’t think it’s likely to open floodgates. This is one particular case.”
In an interview, Adler called the motion “an opportunity to continue the fight for Mr. Kagan. That’s what this is all about for me.”
Jay Schwitzman, a defense attorney in Brooklyn who is not involved in the case, called it “a very novel situation” and said the proceedings have caught the attention of colleagues in the courthouse.
“He’s coming forward and it sounds honorable to do that,” said Schwitzman, adding he could never make out Barbaro’s political leanings when practicing before him.
“He was always a gentleman and always wanted to do the right thing,” said Schwitzman.
John Kase of Kase & Druker in Garden City is a retired Nassau County Court judge, once sitting as the court’s supervising judge. In an interview, Kase, who is not involved in the Kagan proceedings, agreed they were “highly, highly unusual.”
Kase “congratulate[d]” Barbaro “ on his courage of trying to right his perceived wrong, even at this late date.” He also said “one would wonder why it took so long? What the motivation was? What provoked this memory at this point in time?”
He noted that some judges were “uncomfortable” with bench trials and would decline to take them on. Other judges viewed the trials as part of their obligations, and Kase noted he sat on several bench trials himself.
He said a judge’s comfort level is linked to familiarity with the criminal justice process. Rather than a jury of one’s peers, “this is, in effect, making you a professional juror because of your experience seeing case after case.”
Asked if he knew of judges who had misgivings about decisions they handed down over the years, Kase responded, “I’m sure they do. We’re human.”
Spokesmen for both outgoing Brooklyn District Attorney Charles Hynes and incoming District Attorney Kenneth Thompson declined to comment.
Kenneth Taub, chief of the Brooklyn District Attorney’s Homicide Bureau and Assistant District Attorney Amy Appelbaum appeared for the prosecution.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.