After sending man to prison, judge wants conviction tossed - KLTV.com-Tyler, Longview, Jacksonville, Texas | ETX News

Years after sending man to prison, retired judge wants conviction tossed

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The judge said he unfairly convicted a white man of murder in 1999 because he thought the man was a bigot. (Source: CNN) The judge said he unfairly convicted a white man of murder in 1999 because he thought the man was a bigot. (Source: CNN)

NEW YORK (CNN) - Retired Judge Frank Barbaro wants to right a wrong.

He said he unfairly convicted a white man of murder in 1999 because he thought the man was a bigot, and on Tuesday, a new judge may rule on whether to throw out the conviction.

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 Supreme Court before Justice Frank Barbaro, who would be both judge and jury.

"So he decided that he would get a fair shake with me," Barbaro said.

The crime happened at a cineplex in Brooklyn. Evidence presented in court showed that Kagan came to the movies with an unlicensed loaded gun. Wint, the victim, came with his friends to the very same show and, according to testimony, had been drinking.

After the show let out, 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 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.

Two bullets struck Wint in the chest and abdomen.

Barbaro rejected Kagan's claim of self-defense, finding him guilty of murder and criminal possession of a weapon.

"I couldn't get out of my mind the look on the lawyer's 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," he said. "This was race."

Barbaro began questioning the guilty verdict he handed down

When asked if this was a very well-reasoned opinion, he said, "Yes, based on the testimony that came in, with the lens of my background. In other words, Kagan was a racist. But I was wrong. He went to the house to get the gun because he was fearful."

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," he 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 rare. Barbaro himself came to testify in December, facing the man he sent to prison.

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

After all those years, the family of Wint, who had a 4-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," Carmen DeJesus said. "He pulled out the gun and murdered that man."

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

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