Murder conviction stands despite judge's confession of liberal bias
Two judges are troubled by Donald Kagan’s 1999 conviction for second-degree murder, but the verdict remains intact.
The first is now-retired judge Frank Barbaro, who found Kagan guilty in a bench trial. After his retirement, Barbaro concluded he was swayed by liberal bias when he convicted Kagan in the shooting death of a black man. Barbaro contacted counsel for Kagan and testified in a hearing that he feared his involvement in the civil rights movement had led him to conclude Kagan was a bigot who assassinated an African-American. Kagan had argued at trial that the shooting was in self defense.
The second judge is ShawnDya Simpson, who refused on Wednesday to vacate the conviction, report the Associated Press and the New York Law Journal. Before releasing her opinion, Simpson said the case was an “emotional roller coaster” and it had caused her many sleepless nights, but her hands were tied, according to the New York Law Journal account.
Simpson said she found “absolutely nothing in the trial record” indicating bias or prejudice by Barbaro, despite his claim of a post-trial epiphany. She did note, however, that several witnesses testified about a struggle over the gun.
In a footnote, Simpson held out some hope for Kagan. She said her review of the evidence had convinced her the facts establish a crime of second-degree manslaughter, rather than second-degree murder, and she has asked prosecutors to re-evaluate the evidence. “Although the District Attorney has the right and prerogative to be steadfast in their position,” she wrote in Footnote 7, “it should be pointed out that their ethical obligation is not merely to seek a conviction, but to fairly administer justice, both pre- and post-trial.”
Kagan is still in prison; his first parole hearing will be held later this month, the New York Law Journal says.