Update: Court Rejects Trial Judge's Claim That He Was Biased

The post-trial events are somewhat unuusal: a white liberal judge hears a murder case where the defendant is white and the victim is black, and issues a conviction. Years later, said judge states that maybe he erred, maybe the defendant was actually the victim of the judge's own unconscious biases. The defendant moves to vacate the conviction and a hearing is held. Fascinating stuff, at least to me.

As set out in a post on my firm's website (here), Donald Kagan was convicted in a Brooklyn courtroom in 1999 of killing Wavell Wint. Kagan, who is white, was accused of shooting Wint, who is black, to death outside a movie theatre. It was apparently a pedestrian case that attracted minimal attention at the time.

Kagan opted for a bench trial -- meaning that the judge took on the jury's role as fact-finder -- and was promptly convicted of murder by the Hon. Frank Barbaro, and sentenced to 15 years to life imprisonment. It's worth noting that Barbaro has been described as an "ardent liberal."

Barbaro, now retired and in his mid-80s, recently came to the conclusion that his handling of Kagan's trial was tainted with racial bias, his own bias. Barbaro has opined that he sub-consciously factored in both men's skin color in his handling of the case and weighing of the evidence. Kagan's lawyers took the ball and ran with it, resulting in a hearing berfore Justice ShawnDya Simpson.

Simpson heard from Barbaro, examined the trial record, and ultimately concluded that,

This court finds Justice Barbara's claims of bias and prejudice are mere afterthoughts or second guesses. The court is troubled that it took Justice Barbara thirteen years to come forward to express his concern that he may have been biased and prejudiced in his decision. Justice Barbara should have been more aware of his biases and prejudices. Despite Justice Barbara's failure to realize his sub-conscious impartiality, this court must still assess whether Justice Barbara's claimed biases and prejudices tainted his decision and the guilty verdict. . . .There is absolutely nothing in the trial record to indicate Justice Barbara conducted the trial with bias and prejudice.

Justice Simpson did state, however, that she was not at all convinced that the murder charge was appropriate. Rather, the most serious charge supported by the trial evidence would have been manslaughter. Simpson then asked the Kings County District Attorney to review the record.

Although the District Attorney has the right and prerogative to be steadfast in their position, 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.

The absence of any concrete evidence that Barbaro's predispositions played a role in the outcome doomed Kagan's chances. It's probably the right outcome, though Barbaro ought to be applauded for finally speaking up.

Everybody has preconceptions and biases, and the most pernicious of these are often the ones we are most unaware of. Our subconscious fears and prejudice can deeply influence who and what we believe, what people and testimony we are more inclined to credit or reject, and alter how we perceive seemingly neutral facts and arguments. Judges, lawyers, and jurors are all expected to try to recognize these biases and take pains to guard against them in the courtroom. It's an absurd expectation that is grounded on the idea that we can discover thoughts and ideas we didn't know we had, and then simply will them away.

Still, if there is no indication anywhere that these biases actually caused any harm (i.e., influenced rulings on evidentiary challenges or caused the judge to credit or reject testimony), then there's really no basis for relief. The mere fact that the finder of fact entered the courtroom with predispositions is not enough. If it were, we could never empanel a jury.

But, I am always in favor of open discussions about race, prejudice, and how such factors influence the justice system. While I agree with Simpson that Barbaro ought to have spoken up sooner if he was truly concerned, it is good that he came forward, and that the case was examined anew in the light of day.