Donald Kagan - No Crime

Kagan, Donald; murder; [not on NRE list:] no crime

Bench trial

B32 [178] "Former...Judge Frank Barbaro stands as a prime example of how to interrogate one's instincts and decisions. Everything is stacked against it, but Barbaro found a way. 'I had a practice. . .that whenever I made a legal decision, I never let it lie. I ran it through my mind again.' There was once a case in particular that he kept mulling over. In October 1999...Donald Kagan...had waived his right to a jury trial, putting his fate entirely in Barbaro's hands. Kagan claimed that he had acted in self-defense when he shot and killed Wavell Wint outside a Brooklyn movie theater. But Judge Barbaro convicted him of second-degree murder and a weapons charge and sentenced him to fifteen years to life.

"Although it had been more than decade, Barbaro told his wfe, Patti, 'I really feel I need to revisit this case. I need to get the transcripts. I don't feel comfortable with this. It's been haunting me.' And when he pored over the record anew, he was 'absolutely horrified': 'It was so obvious I had made a mistake. I got sick. Physically sick.'

"He realized that his own background and experience as a vigorous civil rights advocate had colored his treatment of the case: 'When the trial began, I was absolutely convinced that Donald Kagan [who is white] was a racist and was out looking for trouble and fully intended to kill Mr. Wint [who was black].' That frame had caused him to overlook evidence that suggested that Kagan acted in self-defense.

"Revisiting the facts, Wint now appeared to have been the aggressor. It seemed Kagan had shown his gun only to ward off a drunken Wint, who'd tried to rob Kagan of his gold chain. Wint's friends had dragged him away, but he'd fought them off and gone [179] right back into Kagan's face. When Kagan pulled his gun a second time, Wint went for it. In the scuffle, the gun fired into Wint's torso. In December 2013, fourteen years after Kagan had been convicted, Judge Barbaro took the witness stand to claim that his own verdict should be overturned: 'I believe now that I was seeing this young white fellow as a bigot, as someone who assassinated an African-American...I was prejudiced during the trial.'

"It is almost unheard of for a judge to admit that bias led him to err at trial. And it took real courage: the admission not only revealed an awful mistake -- his mistake -- to the world, but also opened him up to vicious attacks from prosecutors who portrayed him as a feeble-minded old man. But it seemed to Barbaro that the only way forward is to be fearless about looking back: '[T]he legal system should become very sensitive to the question of have we done justice? Have we made a mistake? And that's what I'm trying to do now.'"

[It is diifficult to imagine Judge Paul Czajka making such a mea culpa re: his conviction of Nickel. ]

[776:514]; 2nd Dept. 5/17/04; affirmed

"[Kagan's] contention that the prosecution failed to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review...In any event...we find that the defense of justification was disproved beyond a reasonable doubt...There was sufficient evidence for the trier of fact to conclude that [Kagan] was not the victim of a chain-snatching incident involving the decedent. Rather, the shooting was the result of an argument between [Kagan] and the decedent that escalated when [Kagan] pulled his gun on the unarmed decedent..."

"[W]e are satisfied that the verdict of guilt was not against the weight of the evidence..."

 

from Records and Briefs:

[17] "On November 4, 1998, [Kagan], Jermaine Kollock and Yassir Mohammed went from their homes on Ocean Parkway, Brooklyn, to the Linden Cineplex to see the late-night showing of the movie 'Belly'...[Kagan] was wearing a gold chain worth about $2,000 on the inside of his sweater. [He] brought a gun with him because the movie theater was in a bad neighborhood...[He] never intended to use the gun, but believed he could prevent a robbery by displaying it...[He] was worried about a robbery because his friend Mohammed had been robbed and stabbed a week before on a train..."

"After the movie, [Kagan] and his friends exited the theater on to Linden Boulevard...As they were walking toward the parking lot, [Kagan] and Kollock heard some arguing...Then, all of a sudden Wint grabbed [Kagan's] chain, which had fallen on the outside of [Kagan's] sweater...Wint said, 'Watch me get some Belly shit,' referring to a scene in the movie about a robbery...[Kagan] took the gun out from his waistband..."

"Wint's friends pulled Wint away from [Kagan]...[Kagan] put the gun away and started walking toward the parking lot..."

"Wint broke free of his friends and ran up to [Kagan] with a crazy look in his eyes...[Kagan] could smell alcohol on Wint's breath...Wint said to Kagan, 'If you are not going to use that [gun] you are a pussy. I'll fuck you up.'...Then, Wint successfully grabbed the chain from [Kagan's] neck...[Kagan] took out the gun and told Wint to give the chain back...Wint tried to grab the gun...During the struggle over the gun, two shots went off...The shots were fired within a matter of seconds...After Wint fell to the ground, [Kagan] just stood there in shock...[He] did not try to fire any more shots..."

"After the shooting, [Kagan] and Kollock ran across Linden Boulevard...[Kagan] gave Kollock the gun while they were crossing the street..."

"Later at the precinct, Detective Powers observed a fresh abrasion on the back of [Kagan's] neck..."

[Judge Barbaro presented extensive findings of fact.*]

[* This is in stark contrast to bench trial Judge Paul Czajka in Nickel's case, who simply read out his verdicts -- after just two minutes of 'deliberation' -- without explanation of any kind.]

[19] "Although the only testimony regarding the robbery was from the defense witnesses, none of the prosecution witnesses contradicted this testimony. Rather, the prosecution witnesses conveniently did not see how both the initial and second encounter between [Kagan] and Wint began. It is odd that none of Wint's friends, all of whom were standing near the dispute, knew why Wint and [Kagan] were arguing. It is even stranger that some of them could hear what [Kagan] said to Wint, but not what Wint said to [Kagan]. For example, Tirado heard [Kagan] say, 'You don't want none of this man' and Matthews heard [Kagan] say, 'You think you can't get shot.'...If one accepted the prosecution witnesses' rendition of the events, one would have to believe that Wint, as the initial aggresor, would have challenged [Kagan] in some way. But none of the prosecution witnesses testified as to any remarks Wint made to [Kagan].

 

"The only logical explanation for this gap in testimony is that the prosecution witnesses were trying to protect their friend Wint and/or themselves. The prosecution witnesses probably did not want to admit that Wint was guilty of robbery because they did not want to speak ill about their deceased friend. However, it is possible that Wint's friends may have believed that they could be found guilty of some crime because they were with Wint. Accordingly, they left any mention of a robbery out of their version of events."