BROOKLYN — When Donald Kagan, now 41, was locked up on a murder charge in 1998 -- at the age of 24 -- the white defendant thought he’d have a better chance of getting a fair shake at a non-jury trial, where a judge would consider the evidence in the fatal shooting of a black man and render the verdict. He was wrong.
Now, nearly 17 years later, Kagan has been paroled from state prison after two judges wrote letters stating he never should have been convicted of murder in the second degree. One of the letter writers was from the judge who convicted him, the now-retired Frank Barbaro.
“I’m sorry,” Barbaro said tearfully when PIX11 Investigates asked him what he would say to Donald Kagan, if the two crossed paths. “But I know ... my saying I’m sorry is not going to change the fact that he spent all that time in jail.”
Donald Kagan still regrets the fateful decision to take an unlicensed gun to the Linden Boulevard Multiplex in East New York on the night of Nov. 4, 1998. He was working as a security guard at the time, and he was going with friends to see the hip-hop movie “Belly” after work.
Wavell Wint, the 22-year-old father of a young son, was also at the theater with friends. Witnesses said an intoxicated Wint got into a confrontation with Kagan outside the Multiplex after the film.
Kagan said Wint tried to steal the gold chain off his neck.
Kagan flashed his gun and said, “You don’t want any of this.”
Wint’s friends later testified they pulled Wint away and Kagan walked toward the parking lot.
But Wint came charging back, Kagan said, and tried to pull the chain off his neck again, and Kagan pulled out the gun again.
A struggle over the weapon resulted in two fatal shots being fired, with Wint ending up dead.
When PIX 11 asked Kagan why he brought the gun that night, he responded, “That’s something I’ve asked myself for the last 17 years,” adding, “I thought I needed it for protection.”
Kagan said he’d been robbed once before, and he was attending the movie with a friend who had recently been robbed.
Kagan took the stand at his trial, and Barbaro didn’t buy the self-defense testimony.
Sources tell PIX 11 both the defense attorney and the prosecutor were shocked when Judge Barbaro delivered a guilty verdict for murder.
He could have considered lesser charges of manslaughter or criminally negligent homicide.
Thirteen years into Kagan’s incarceration, Barbaro -- then retired and in his 80s -- contacted Kagan’s lawyer, Jeff Adler, in 2011.
Barbaro told the attorney that Kagan’s case had always haunted him, and he wasn’t sure he’d made the right decision.
Barbaro — a long-time civil rights activist, his activism dating back to the 1940s — believed he had been biased towards Kagan from the moment the young white man stepped into his courtroom.
“In comes this white guy who’s killed this young, black man,” Barbaro recalled. “Somewhere in my unconscious, I’m thinking this guy’s a racist.”
Supreme Court Justice Shawndya Simpson was assigned to review the case and preside at a hearing in December 2013 during which retired Judge Barbaro — then 86 years old — would testify.
Judge Simpson said Barbaro had a hard time acknowledging on the stand that he had been biased toward Kagan at the 1999 trial.
“I think it was hard for him to admit, and had he done so, it would have made it easier for me,” Simpson told PIX11 Investigates.
Judge Simpson revealed to PIX 11 she agonized for months and months about whether the original conviction should stand. She had reviewed the trial transcripts and read Judge Barbaro’s decision papers.
“What killed me on the case is that he laid out all the reasons he thought Mr. Kagan was guilty,” Judge Simpson said.
But Judge Simpson didn’t think Donald Kagan was guilty of murder either, and she asked the newly-elected District Attorney, Kenneth Thompson, to review the transcripts.
She hoped the court could reach a compromise with the D.A.’s office and free Kagan on “time served.”
Kagan had already served more than 15 years, when Simpson was laboring over a decision.
“I think there was political pressure on her,” retired Judge Barbaro remarked to PIX11. “Judges are not totally independent.”
When PIX 11 asked Barbaro to elaborate, he said, “Within the judicial system, judges are under pressure. They like to go to the appellate division, get a promotion. They like to be assigned good cases, and they have to get re-elected.”
When PIX11 asked Judge Simpson whether she was under political pressure to let the murder conviction stand, she replied, “No.”
She went on the record saying she didn’t think Judge Barbaro had convicted Donald Kagan of the right charge.
“It was not a murder. I saw it more as criminally negligent homicide.”
Yet Judge Simpson understood why the District Attorney was not eager to have the conviction overturned.
“When Mr. WInt passed away, he had a young child. The child was in the courtroom. The mother was there, the family was there. And they wanted to fight it,” Judge Simpson recalled.
Helen Peterson, a spokesperson for Brooklyn District Attorney, Kenneth Thompson, told PIX11 Investigates Monday night, "We stand by our decision not to vacate the conviction."
When Judge Simpson finally rendered a decision about the case in October 2014, she denied the motion to overturn Judge Barbaro’s decision.
“My heart sank,” Kagan remembered.
Judge Simpson wrote in her decision that Barbaro’s “claims of bias and prejudice are mere after-thoughts and second guesses.”
Yet her decision nagged her thoughts, and she found herself on an emotional roller coaster, Simpson told PIX 11.
“I cried before I got on the stand,” Judge Simpson revealed to PIX 11, “I cried after I went on the stand.”
Simpson added, “I really felt that he served his time, and it was time for him to get out.”
So, in the same month that Judge Simpson ruled she did not have the power to overturn the conviction, she decided to write a letter to the New York State Parole Board, dated October 27, 2014.
“I am writing this letter in support of granting the above referenced defendant parole,” Judge Simpson said, speaking of Kagan. “The facts of the case demonstrate that the level of intent required for the conviction was not proven beyond a reasonable doubt.”
Retired Judge Barbaro wrote his own letter to the Parole Board in April 2015. Kagan had already been turned down once, shortly after Judge Simpson had reached her decision in 2014.
Now, the Parole Board was ready to see Kagan again.
And in July, the Board agreed to free Kagan, citing the letters from both judges, a low risk “compas” score, strong community support, positive institutional adjustment, Kagan’s “expression of remorse” and his insight at the interview.
When Kagan received the official notice in prison, “I was ecstatic,” he said with a smile.
Kagan was released in July, and he’s living with a friend in Brooklyn. He attends state programs to help him readjust to life outside prison, and he’s hopeful about getting a job.
“I know people with no convictions who have a hard time finding work,” Kagan said. “But I’ll find something. I’m determined.”
Kagan had told PIX 11 during a 2013 interview on Rikers Island that prison forced him to reflect on the person he’d been. He regretted carrying a gun and being so “into myself” as a young man.
In our recent interview, after his release, Kagan told PIX 11, “I learned to take responsibility for my actions.”
When we asked him his thoughts on getting support from a white judge and a black judge to secure his freedom, he responded, “This case should never have been about race.”
Kagan later laughed, as he related it took him a week to learn how to use a Smartphone, but he savored the liberty of just walking around the city, to places like Times Square and the High Line.
“I can just walk around New York City and be happy. Just taking in everything,” Kagan said. “Taking in freedom.”
He is grateful to the judges for writing the letters that helped secure his release from prison. But he still hopes to have the murder conviction overturned someday.
That decision may ultimately be made by a higher court.
Judge Simpson—and Donald Kagan—both think it was brave for retired Judge Barbaro to come forward and admit a mistake.
“A lot of judges wouldn’t do that,” Simpson observed. “You kind of bury it deep within.”
PIX 11 notified Judge Simpson that Donald Kagan had been paroled on her birthday—several months after Kagan actually got out of prison.
She told us the news made her birthday special.
“I have a lot of hope for Donald Kagan,” Judge Simpson told PIX11. “I think he had 16 years to think about life.”