After Sending A Man To Prison, Judge Admits He Was Biased

Retired New York Judge Frank Barbaro says he wrongly convicted a white man for a 1999 murder of a black man. He explains to NPR's Scott Simon why he now wants the conviction thrown out.

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We all have regrets in life. Some have more consequences. Judge Frank Barbaro believes that he made a mistake 14 years ago when he convicted Donald Kagan of murder in a bench trial. Judge Barbaro is now retired and has come forward to try and reverse that decision. He says that he unjustly convicted Donald Kagan because he believed that racism was a motive behind the shooting that killed a 23-year-old man named Wavell Wint. The defense has filed a motion to overturn the verdict. Judge Barbaro joins us now from the studios of WAMC in Albany, New York. Your Honor, thank you for being with us.

FRANK BARBARO: My pleasure.

SIMON: Your Honor, take us back to your courtroom in 1999, when you convicted Mr. Kagan of murder. You're not saying that he didn't shoot Wavell Wint, are you?

BARBARO: No. I'm saying he shot him, I believe, in self-defense.

SIMON: Well, a lot of eyewitnesses say that, of course, the gun belonged to Donald Kagan and they saw him brandishing that gun.

BARBARO: But that's not the complete story. The testimony essentially was that Wint was drunk, approached Kagan, attempted to steal a chain from his neck. Kagan walked away from him. Wint's friends were telling him to leave him alone, but he kept challenging and following Kagan. Finally, when Kagan took out his pistol, there was a struggle. So we will never know who actually pulled that trigger.

When the trial began, I was absolutely convinced that Donald Kagan was a racist and was out looking for trouble and fully intended to kill Mr. Wint. And I had a practice, or have a practice, that whenever I made a legal decision, I never let it lie. I ran it through my mind again, and when I began to do this with the Kagan trial, I began to have doubts. And as I read the transcript, I was absolutely horrified. So now I'm in a situation where I see that a man is incarcerated when he shouldn't be.

SIMON: Judge Barbaro, with respect, as I imagine you've heard, there's some Brooklyn prosecutors who suggest that you are simply regretful and a little bit frail. What do you say to that?

BARBARO: I'm not frail at all. I'm - my mind is clear as a bell. I still do legal work. I was very clear on the stand. The district attorney subjected me to some pretty heavy cross examination.

SIMON: This was in court, a few, in December.

BARBARO: That's correct. So that's a specious argument. And the legal system should become very sensitive to the question of have we done justice? Have we made a mistake? And that's what I'm trying to do now.

SIMON: What was it like when you, after all these years, saw Donald Kagan in the courtroom last December?

BARBARO: I got chills. I got chills up and back my spine. I didn't sleep that night. And he looked terrible. When he was in front of me at the trial, he was a vibrant, chubby young man. And when I saw him in court, he was a haggard old man.

SIMON: Judge Barbaro, is there room in the legal system for what you're feeling, for the injustice that you feel you did to someone?

BARBARO: I think too many times there is pressure to finish the cases, get the cases done and off the calendar. This pressure dooms people to be convicted unjustly. Now I'm not saying every case, but one is too much.

SIMON: Retired Judge Frank Barbaro speaking with us from upstate New York. Thanks very much for being with us, your honor.

BARBARO: You're welcome.

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