Donald Kagan had been in prison for murder for more than a decade when doubts about his guilt arose from an uncommon source: the former judge who had convicted him.
The reason was more extraordinary still: The now-retired, white jurist felt he had been swayed by bias against Kagan, also white, in the killing of a black man.
On Wednesday, another judge upheld the conviction in the 1998 case. Acting Brooklyn state Supreme Court Justice ShawnDya Simpson said she found the case emotionally wrenching but that legally, there were no grounds to reverse the conviction.
“It’s unfortunate that my hands were tied” by the law, Simpson said. “This may be one of those cases that bothers me for the rest of my life.”
Kagan sat still, looking downward, after hearing her decision. His lawyers said they would appeal.
Kagan, 40, has always maintained he was defending himself in a confrontation with Wavell Wint outside a Brooklyn theater. Kagan said Wint had grabbed the gold chain he was wearing; Kagan shot him with a gun he said he had flashed at Wint earlier to ward him off. Wint was unarmed.
Then-state Supreme Court Justice Frank Barbaro heard the case without a jury, convicted Kagan in 1999 and sentenced him to 15 years to life in prison. An appeals court upheld the conviction, saying there was evidence that Kagan escalated a scuffle that stemmed from an simple argument.
But Barbaro, as time passed, wasn’t so satisfied. A labor lawyer and 24-year Democrat state assemblyman, he became convinced that his hatred of anti-black racism tainted his view, leading him to believe Kagan acted out of bigotry.
“I saw a black man being killed by a white man, and that triggered my unconscious in ways I wasn’t aware of,” Barbaro said Wednesday.
Kagan’s lawyer asked a court in 2011 to overturn the conviction. Barbaro said he was “outraged” by Simpson’s decision and hoped Kagan’s planned appeal succeeded.
“The man was not given a fair trial. Those facts are irrefutable,” he said.