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1999 murder conviction reversed, new trial granted

Defendant has already served sentence

By: Bennett Loudon//April 7, 2022

1999 murder conviction reversed, new trial granted

Defendant has already served sentence

By: Bennett Loudon//April 7, 2022

A state appeals court has reversed a 1999 murder conviction and granted a new trial because the judge who decided the case in a bench trial later changed his mind about the verdict.

Defendant Donald Kagan, 47, was convicted of second-degree murder in December 1999 in a bench trial before state Supreme Court Justice Frank R. Barbaro in Brooklyn.

Kagan, who is white, was found guilty of fatally shooting a Black man outside of a movie theater on Nov. 4, 1998.

Barbaro, who died in 2016, sentenced Kagan to 16 years to life in state prison. Kagan was paroled in June 2018.

In a decision released Wednesday, the Appellate Division of state Supreme Court, Second Department reversed the conviction and ordered a new trial.

In January 2011, Barbaro, who had been socially and politically active in civil rights causes his entire career, contacted Kagan’s defense attorney, and asked to review a transcript of the trial.

“After reflecting on the case, Justice Barbaro realized that his experiences as a civil rights activist influenced (his) analysis of the case, and that he ‘had incorrectly framed the issue as being whether the defendant was motivated in his actions by racism rather than whether or not his criminal intent was established beyond a reasonable doubt,” according to the decision.

Kagan filed a 440 motion to vacate the conviction, but it was denied in September 2014 by Justice ShawnDya L. Simpson.

In August 2012, Kagan filed a 440-motion seeking to vacate the conviction. After a hearing where Barbaro testified, Simpson denied the motion.

Simpson ruled that Barbaro’s testimony at the hearing was not credible and found “that there is no evidence (Justice Barbaro) acted with bias towards the defendant at the time the verdict was rendered,” and that “Justice Barbaro’s claims of bias and prejudice are mere afterthoughts or second guesses.”

But the Second Department found that “Barbaro’s statements cast serious doubt on his ability to render — and his actual rendering of — an impartial verdict.”

“Because the defendant demonstrated, by a preponderance of the evidence, that the judgment was obtained in violation of his right to a fair trial before an unbiased fact-finder, the Supreme Court should have granted the defendant’s motion to vacate,” the court wrote.

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